Afj 16 v Minister for Immigration - [2016] FCCA 3034

FEDERAL CIRCUIT COURT OF AUSTRALIA

AFJ 16 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 3034

Catchwords:
MIGRATION – Applicant seeking judicial review – Tribunal finding applicant’s application out of time – whether applicant actually received delegate’s decision held irrelevant by Tribunal as a result of the operation of the Migration Act 1958 and Migration Regulations 1994 – Tribunal clearly correct – applicant voluntarily returning to India – whether application “moot” – application dismissed.

Legislation:

Migration Act 1958, ss.412(1)(b), 494C, 36(2)

Migration Regulations 1994, reg.4.31

Cases cited:
Tay v Minister for Immigration and Citizenship and Another (2010) 183 FCR 163
Tchoylak v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 302
SZSPI v Minister for Immigration and Border Protection and Another (2014) 233 FCR 279

Applicant:

AFJ16

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

ADG 32 of 2016

Judgment of:

Judge Burchardt

Hearing date:

12 October 2016

Date of Last Submission:

12 October 2016

Delivered at:

Dandenong

Delivered on:

5 December 2016

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondent:

Mr P. d’Assumpcao

Solicitors for the Respondent:

The Australian Government Solicitor

ORDERS

The application filed on 3 February 2016 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

No. ADG 32 of 2016

AFJ16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Administrative Appeals Tribunal dated 25 January 2016. The Tribunal held that it did not have jurisdiction in the matter. The application, filed on 3 February 2016, asserts under the heading, Grounds of application:
I have not got letter for hearing.
I missed that.
tribunal got wrong Address.
have not got decision letter for Department of Border Protection.

The affidavit in support essentially repeats those assertions, asserting:
Do not received Division for protection visa.
Change the Address and new updated
new Address still not received any letter.

The applicant filed a subsequent affidavit to which I shall come but it is immediately apparent that so far as the substantive merits of the matter have been articulated in writing, the court has little from the applicant to go on. The Tribunal’s decision is short and is at Court Book (“CB”) 102 - 104. It is apparent that the applicant lodged a application for an review of the decision of the delegate of the Minister, dated 4 August 2015, which refused the applicant’s application for a Protection visa. The review application was lodged with the Tribunal on 20 October 2015. As the Tribunal asserted, pursuant to s.412(1)(b) of the Migration Act 1958 (“the Act”) and reg.4.31 of the Migration Regulations 1994 (“the Regulations”), an application for review of the decision of the delegate had to be made within 28 days after the applicant was notified of the decision in accordance with the statutory requirements.
From the records of both the Department and the Tribunal, the Tribunal noted that the applicant applied first on 18 March 2014 and provided a residential and postal address on Alumaba Avenue, Prospect. In June 2014 the Department telephoned the applicant, who said he would come into the office to update his address details but there was no notation that he had done so. An endeavour to communicate further in July 2014 with the applicant at the Alumaba Avenue address was returned to sender.
In July 2015 the applicant rang the Department because he had not received correspondence for six months and he disclosed that he had moved to Churchill Road, Prospect, and the Department’s records were updated. On 28 July 2015 the Department sent the applicant an invitation to an interview by regular post at the address he had nominated but that was likewise returned to sender. The delegate proceeded to make a decision on the applicant’s application and posted that to him at the Churchill Road, Prospect, address but it was again returned to sender.
The Tribunal noted at paragraph 11 (CB103) that the applicant was notified of the decision by a letter dated 4 August 2015 and dispatched by post. The Tribunal was satisfied that the applicant was notified of the decision in accordance with the statutory requirements. On 6 October 2015 the applicant contacted the Department and advised he had just moved to a new address the week previously and gave that address at Midra Avenue, Edwardstown.
In his correspondence with the Tribunal dated 16 October 2015 the applicant made a number of assertions. He said that his application for protection had been refused on 8 September 2015, although the Tribunal noted that its records indicated the date of refusal was actually 4 August 2015.
The applicant indicated that he had contacted the Department in June/August 2015 to update his details and had changed his address to the Midra Avenue, Edwardstown, address on 1 July 2015. All the records before the Tribunal suggested that he had changed his address on 7 July 2015 from Alumaba Avenue, Prospect, to Churchill Road, Prospect. The Tribunal noted at paragraph 15 (CB104) that the applicant’s assertions of later contact with the Department were irrelevant to the issue of whether he was properly notified of the delegate’s decision made on 4 August 2015.
The Tribunal found at paragraph 17, in accordance with s.494C of the Act that the applicant was taken to have been notified of the decision on 13 August 2015. The prescribed period within which the application could be made ended on 10 September 2015 and the application was not, in fact, received by the Tribunal until 20 October 2015. The Tribunal concluded that it followed that the application for review was not made in accordance with the relevant legislation and the Tribunal had no jurisdiction.
The factual narrative did not end at that point. The applicant returned to India, as is apparent from the affidavit of Molly Scanlon, affirmed on 11 July 2016. It seems reasonably clear that on 15 April 2016 he was returned to India, where he still is. It will be necessary to come back to the circumstances surrounding that departure in due course.
The position of the first respondent can be stated shortly. First, it is submitted, as is set out in the written submissions upon which the Minister was essentially content to rely, that the applicant was notified properly within the meaning of the Regulations and, accordingly, that is an end of the matter.
The assertion by the applicant that he may not have received a notification letter is submitted to be irrelevant. The written submissions refer to the case of Tay v Minister for Immigration and Citizenship and Another (2010) 183 FCR 163, in which the Full Court of the Federal Court asserted at [24] – [25]:
These provisions all evidence concern that there should be certainty in the transfer of documents from the Minister both as to the method and as to the time of delivery. This was recognised by the Full Court in Xie, leading it to conclude that s 494C(4) did not create a rebuttal presumption: See [17] above.
That s 494C(5) does not create a rebuttable presumption of fact is supported not only by our construction of the relevant statutory and regulatory provisions, but also by extrinsic material relevant to the introduction of these provisions.
In the face of this authority, put shortly, I am compelled to agree with the first respondent’s submission. The reality is that the applicant was notified in accordance with the relevant provisions of the Act and Regulations and his application was out of time and the Tribunal was correct to conclude that it had no jurisdiction accordingly. The written submissions of the first respondent assert at paragraph 26, further, there is no suggestion that the applicant was misled about his review rights in any way or that there was a third party preventing him from filing the application within time.
That brings us to the further issue the applicant has raised both in his affidavit sworn in Jalandhar in the Punjab on 27 July 2016 and in his oral submissions before the court today. Essentially what the applicant asserts is that he was assured by a prior case manager in the Department, called “Ms Kyra”, the he could return to India and continue his case from there. That proposition is put in issue, at the very least, by the affidavit of Ms Scanlon, to whom I have referred. Further the likelihood of a Departmental Officer representing the state of affairs to the applicant wholly inconsistent with the Act, is very low. I do not think any representations, even if made by Ms Kyra would estop the exercise of the Minister’s power, in any event. The applicant can of course seek Ministerial intervention directly about this aspect of the matter should he be so minded. It should be noticed that the applicant appeared by telephone at his own request, and I confirmed with him that he had received the first respondent’s submissions.
Accordingly, even if he was misled, it would be a matter of no moment for these purposes. The further short point that is made by the first respondent is that since the applicant has left Australia, his application for a refugee visa is bound to fail. That is because s.36(2) of the Act has as a criterion for a Protection visa that the applicant for the visa is a non-citizen and is in Australia. The applicant obviously is not in Australia. Whether or not the applicant is likely to get another visa is an open question and the Minister submits that there is no likelihood of it.
The applicant in his oral submission stresses that his parents – and, I infer, the entirety of his family – are shortly to arrive in Australia and, I infer, live here. It is not inconceivable that in some fashion the applicant might be able to obtain a visa. The difficulty, however, is that in Tchoylak v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 302 a Full Court of the Federal Court noted that the fact that the applicant was no longer in Australia, and had no realistic prospect of being permitted to return in the future, rendered his appeal moot. Further, in SZSPI v Minister for Immigration and Border Protection and Another (2014) 233 FCR 279 a Full Court of the Federal Court relevantly held at [48]:
we are prepared to dismiss the matter on the basis of the application being moot in the absence of the applicant in Australia. We are not prepared to deal with the matter on its merits.
In those cases the applicants were removed involuntarily, whereas in this case the applicant volunteered.
In these particular circumstances, in this case, I have dealt with the matter on its merits in case, in the future, the applicant, in some fashion, is able to return. His application was plainly out of time and the time was not extendable. It was doomed to fail and did so.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Date: 5 December 2016