Akb18 v Minister for Home Affairs
[2019] FCCA 441
•8 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AKB18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 441 |
| Catchwords: MIGRATION – Application for judicial review of a decision of the Administrative Appeals Tribunal that it lacked jurisdiction to hear and determine a merits review application from a decision of a Delegate of the Minister for Immigration because it was lodged outside the applicable 28 day period for doing so – first applicant claimed Department of the Minister ignored his ‘preferred’ method of communication – applicant was notified of decision in accordance with s.494B of the Migration Act 1958 (Cth) – the Administrative Appeals Tribunal correctly had regard to the relevant statutory regime – Administrative Appeals Tribunal did not commit jurisdictional error – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), s.494C |
| Cases cited: AWA15 v Minister for Immigration [2018] FCA 604 Calimoso v Minister for Immigration and Border Protection [2016] FCA 1335 CGJ16 v Minister for Immigration and Border Protection [2018] FCA 1437 |
| First Applicant: | AKB18 |
| Second Applicant: | AKC18 |
| Third Applicant: | AKD18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 214 of 2018 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 8 February 2019 |
| Delivered at: | Sydney |
| Delivered on: | 8 February 2019 |
REPRESENTATION
| The Applicants appeared in person. |
| Counsel for the First Respondent: | Ms J. Strugnell |
| Solicitors for the First Respondent: | Minter Ellison |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 29 January 2018 is dismissed.
The First and Second Applicants are ordered to pay the First Respondent’s costs of the proceeding in the sum of $5,600.
Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicants have up to and including 19 March 2019 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 214 of 2018
| AKB18 |
First Applicant
| AKC18 |
Second Applicant
| AKD18 |
Third Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
Introduction
The Applicants are citizens of India. The First Applicant is a male who was born on 18 June 1986. The Second Applicant is a female, having been born on 19 January 1993 and is the wife of the First Applicant. The Third Applicant is a female, having been born on 11 February 2014 and is the daughter of the First and Second Applicants.
The First Applicant arrived in Australia on 14 January 2016, and the Second and Third Applicants arrived on 7 March 2016, all on Tourist (Class FA) (Subclass 600) visas.
On 29 August 2016 they applied for Protection (Class XA) (Subclass 866) visas (Protection visas). Only the First Applicant made actual claims to protection on the basis of fearing harm on account of his political opinions, in particular from members of the Congress Party. The Second and Third Applicants applied as secondary applicants being members of the same family unit as the First Applicant.
By Application to this Court filed on 29 November 2018, the Applicants seek to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 24 January 2018, which found that it had no jurisdiction to review the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 17 February 2017, refusing to grant them Protection visas.
It is not in dispute that at some date prior to the decision of the Delegate the First Applicant notified the Department of the Minister that his most recent residential address was an address in Toongabbie (Applicant’s postal address). That address differed from the original residential and postal address given by the Applicants in their application for a Protection visa form, which had been an address at Rooty Hill. That form had also given the Applicant’s email address (nominated email address). I infer that when the First Applicant gave the Applicant’s postal address to the Department it was provided for the purposes of receiving documents. It is difficult to see for what other reason, in the circumstances of this case, that it could have been given to the Department.
Relevant Statutory Criteria for the Grant of a Protection Visa
A convenient summary of the relevant grounds and criteria for the grant of a Protection visa can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:
... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....
Delegate and Tribunal Decision
The Delegate in her Decision Record of 17 February 2017 refused to grant a Protection visa to the First Applicant which meant that she was bound to refuse to grant Protection visas to the Second and Third Applicants. The Delegate found that the First Applicant’s claims to fear harm were not credible and that he would not be threatened or attacked if he returned to India.
Thereafter the notification of refusal letter from the Department dated 20 February 2017, and the Decision Record of the Delegate of 17 February 2017, were sent by registered post on 20 February 2017 to the Applicant’s postal address. The evidence relied upon by Ms Strugnell, who appeared for the Minister, established that fact to my satisfaction, and I refer in that regard to two affidavits of Ms Davyskib affirmed respectively on 7 June 2018 and 15 January 2019.
Then on 9 March 2017 the envelope containing the Delegate’s Decision Record and the notification of refusal letter were returned to the Department marked “unclaimed”. There is no evidence before the Court which goes in any way to explain why the envelope was returned marked “unclaimed”.
Thereafter, in November 2017 the First Applicant says that he ascertained that his Protection visa application had been refused and he filed an application for review of the Delegate’s decision on 25 November 2017. By letter dated 12 December 2017 the Tribunal advised the Applicants that it had formed the preliminary view that their application for review was not lodged within the stipulated statutory 28 day time limit for seeking review, and invited them to comment on the validity of their application for review.
Then by email dated 25 December 2017, the First Applicant replied to the Tribunal, attaching a letter which stated that he had previously received correspondence from the Department of the Minister in connection with the Protection visa application by email, and pointing out that, as he argued today, the Department could have or should have sent the Decision Record and notification refusal letter by email to him to the nominated email address or, alternatively, when the envelope was returned unclaimed, at that point have contacted him by email because he had until 28 March 2017 to validly lodge an application for merits review, but that was not done by the Department.
The Tribunal made its decision on 24 January 2018 finding it did not have jurisdiction to review the Delegate’s decision. The Tribunal made a number of findings, including:
(a) any review of the Delegate’s decision had to be made within 28 days of the date on which the Applicants were taken to have been notified of the adverse decision;
(b) the material before the Tribunal indicated that the Applicants had been notified of the Delegate’s adverse decision by letter dated 20 February 2017 in accordance with the relevant statutory requirements;
(c) the response provided by the First Applicant provided no basis for accepting the merits review application;
(d) the Applicants were taken to have been notified of the decision on 1 March 2017 in accordance with s.494C of the Migration Act 1958 (Cth); and
(e) the prescribed period within which the review application could be made ended on 28 March 2017.
Accordingly, as the application was not received by the Tribunal until 25 November 2017 the Tribunal had no jurisdiction in the matter.
Application to this Court and Consideration
The Application filed in this Court contains one Ground which submits that the Department “was not fair, lawful and just to [the First Applicant] in respect of the notification procedure” of the adverse decision of the Delegate. At the hearing the First Applicant made, as I understood him, two substantive points:
(a) he had indicated, as stated at CB17 of Exhibit A in answer to question 41 in the Protection visa application form, that he agreed to the Department communicating with him by fax, email or other electronic means and gave his nominated email address and the Department should have sent the Decision Record of the Delegate and the notification of refusal letter to that email address; and
(b)further, that when within the time he had to file a valid application for review the envelope was returned unclaimed, the Department then could have and should have contacted him to point out that the envelope had been returned unclaimed and that he still had time to file a valid application for review, but that had not been done.
As to the submission of the Applicant summarized in [14(a)] above, the fact remains that the First Applicant had also given in his Protection visa application form his residential address, which he also gave as his postal address, and the authorities relied upon by the Minister make quite clear that the Department retains a discretion in such circumstances and is not bound to send communications by email. The relevant statutory scheme was recently analysed and described by Allsop CJ in CGJ16 v Minister for Immigration and Border Protection [2018] FCA 1437 (CGJ16) and I do not consider it necessary to set out that regime again here. However, that case bore certain similarities to the present case because the applicant in CGJ16 had provided an email address and a residential address and the Delegate’s adverse decision had been sent by prepaid post. At [13] and [24] Allsop CJ of CGJ16 stated as follows:
[13] … Section 494B(4) of the Act permits the Minister to notify that applicant by prepaid post and to dispatch the document within three working days of the date of the document. The fact that it can be communicated by other means, such as by email, does not mean that a choice made by the Department to communicate by prepaid post is not valid.
………
[24] The operation of the Act and the Regulations is strict. The Department sent the notification to the address provided by the applicant. There was no obligation to provide the notification by email: see the decisions of Minister for Immigration and Border Protection v Kim [2014] FCA 390; 220 FCR 494, Pathania v Minister for Immigration and Border Protection [2015] FCA 1262; 240 FCR 254 and Rahman v Minister for Immigration and Border Protection [2016] FCA 662.
As to the submission of the Applicant summarized in [14(b)] above, there is no law that required the Department to do that.
This is an unfortunate case and one can easily have great sympathy for the Applicants because they have on the basis of the statutory provisions and the authorities lost their right of merits review. However, the authorities are clear that the Tribunal has no power to extend the time period for the lodging of a valid application for merits review no matter how small the delay or how compelling the circumstances.
Unfortunately for the Applicants, in my view the Tribunal was correct to find that their application for merits review was lodged outside the statutory time limit and was therefore invalid, and accordingly the Tribunal had no jurisdiction to hear the review application on its merits. As I have said, there is no provision in the Act that allows the Tribunal or a Court to override or extend the time limit. As Charlesworth J stated in Calimoso v Minister for Immigration and Border Protection [2016] FCA 1335 at [29]:
[29] The time period in which an application for review must be filed is absolute. The Tribunal has no discretion to extend the time in which an application may be made.
Unfortunately for the Applicants, the Ground relied upon then in their Application to this Court fails and accordingly it must be dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 26 February 2019
0
6
2