AKU15 v Minister for Immigration

[2016] FCCA 2512

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKU15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2512

Catchwords:
MIGRATION – Application for protection visa – application for reinstatement – no reasonable prospects of success – whether the Tribunal erred in refusing to review the delegate’s decision – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 66, 411(1), 412, 414, 494B, 494C, 494D

Migration Regulations 1994 (Cth), reg.4.31(2)
Federal Circuit Court Rules, 2001 (Cth), r.13.03C(1)(c)

Applicant: AKU15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 987 of 2015

Judgment of: Judge Smith

Hearing date: 10 & 17 August 2016 & 1 September 2016

Date of Last Submission: 1 September 2016

Delivered at: Sydney

Delivered on: 1 September 2016

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr T. Hilliard, Sparke Helmore

ORDERS

1. The application for reinstatement is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 987 of 2015

AKU15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The applicant first arrived in Australia on 24 February 2012 on a student visa. On 20 May 2014 he applied for a protection visa. That application was refused by a delegate of the Minister on 8 January 2015. On the same day, the delegate sent to the applicant’s migration agent, by registered post, a copy of the reasons for decision in accordance with s.66 of the Migration Act 1958 (Cth).

2. On 18 February 2015 the applicant lodged an application with the Refugee Review Tribunal[1] for review of the delegate’s decision. The Tribunal found that it did not have jurisdiction to review the decision because the application was made outside the time prescribed by the Act and the Migration Regulations 1994 (Cth).

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

3. On 10 April 2015 the applicant applied to this Court for judicial review of the Tribunal’s decision. The matter was set down for hearing on 17 May 2016 at 2.15pm. The applicant did not appear at that time and the application for review was dismissed pursuant to r.13.03C (1) (c) of the Federal Circuit Court Rules 2001 (Cth) (“Rules”). By application lodged on 25 May 2016 the applicant seeks an order that the orders dismissing his application be set aside. The Court has power to set aside the decision pursuant to r.16.05 (2) of the rules.

4. The criteria which are usually applied in determining whether or not to exercise that power include the following:

   i)A reasonable explanation has been given for the applicant’s absence at the trial or hearing;

   ii)There are material arguments available to the applicant that might reasonably lead to the making of an order different to that to be set aside; and

   iii)There is no prejudice to the party with the benefit of the orders that is not able to be adequately addressed by the Court.

Application for reinstatement

1. In his affidavit filed in support of this application, the applicant explained that due to a misunderstanding on 17 May 2016 he went to the Federal Court Registry. When he went there he was told that the hearing was at 88 William Street, Sydney. Afterwards, the applicant says, he rushed to the Court and he appeared before the Court at 3.15pm. I infer that he was in fact told that the hearing was at 80 William Street and I accept the applicant’s evidence. I consider that while other people might disagree, there was a reasonable excuse for the applicant’s failure to appear.

2. It was not as though the applicant simply had something better to do, or he simply did not want to turn up. The fact that he showed up at the Court only shortly after the hearing indicates his genuine desire to appear and to prosecute his case. I consider that there is no real prejudice to the Minister that could not be adequately addressed by an order for costs. The remaining question is whether there is any material argument available to the applicant that might reasonably lead to the making of an order different to the order dismissing the application.

Tribunal’s decision

1. The Tribunal’s decision was based upon the fact that the applicant applied to it for review of the delegate’s decision outside of the time provided for by the rules and regulations. In his originating application in this Court the applicant argued that the Tribunal failed to consider all the circumstances of his situation and did not “give fair and just consideration to allow my an avenue to redress” (error in original).

2. At the hearing the applicant explained that the delay in filing the application for review in the Tribunal was brought about by his agent’s failure rather than his own.

3. If that is the case, then the applicant may have a right to bring proceedings against the agent for negligence, but subject to the correctness of what the Tribunal said, the negligence of the agent does not affect whether or not the Tribunal had jurisdiction. That question is determined by an analysis of the requirements of the Act and Regulations and the facts before the Court.

4. What the Tribunal in fact did was to refuse to review the delegate’s decision. Section 414 of the Act provides relevantly that if a valid application is made under s.412 for review of an RRT[2] reviewable decision the Tribunal must review the decision. The decision of the delegate was to refuse to grant a protection visa and so was an RRT reviewable decision within the meaning of sub-s.411(1)(c) of the Act. The question then, is whether an application was made under s.412 of the Act. If it was, the Tribunal had to review the decision; if it was not, the Tribunal had no jurisdiction to review that decision and was correct not to do so.

   [2] Refugee Review Tribunal.

Consideration

1. Section 412 provides that an application for review of an RRT reviewable decision must relevantly be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision. The period prescribed in reg.4.31(2) of the Regulations is 28 days commencing on the date of the notification. The notification is that referred to in s.66 of the Act. Such notification must, under s.66(2), include specification of the relevant criterion and written reasons.

2. In this case, as I have noted briefly above, by letter dated 8 January 2015 the delegate notified the applicant of the refusal of the application. In that letter there were included written reasons for the refusal including specification of the criteria which were not met, namely, sub-ss.36(2)(a) and (aa) of the Act. The next question is whether the notification was in the prescribed way.

3. Section 494B prescribes methods of the Minister giving documents to a person and includes at sub-s.494B(4) “dispatch by prepaid post or other prepaid means”. That method requires that the document be dated. In this case it was dated 8 January 2015. It must then be dispatched within three working days of the date of the document and it must be sent by prepaid post or by other prepaid means.

4. There is evidence before the Court of the postal records of the Department which shows that the letter was sent on the date of the document, namely, 8 January 2015. The evidence here is that the document was sent by registered post.

5. The document must be dispatched to the last address for service provided by the recipient for purposes of receiving documents. In this case, the applicant nominated, as an authorised recipient, migration agent Home Migration Services Pty Ltd with the business or residential address of suite 1714 Australia Square Tower, 264 George Street, Sydney. The letter enclosing the notification of decision was addressed to that authorised recipient at the address given. Section 494D(2) provides that:

   If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person.

   …

   Thus, in this case the Minister is taken to have given the document to the applicant because the document was given to the migration agent.

6. Section 494C(4) provides that if the document was dispatched from a place in Australia to an address in Australia, the person is taken to have received the document seven working days after the date of the document. It does not matter for the purposes of the Act whether or not the applicant actually received the document. In those circumstances, the applicant is taken to have received the document on 19 January 2015, and by my calculation, was required to have lodged an application by 16 February 2016; however, the application was not lodged by that time and so was not an application made in accordance with s.412 of the Act.

7. For those reasons, I can see no reasonable argument to suggest that the Tribunal in fact had jurisdiction and was wrong to refuse to review the decision. I would add that the Tribunal gave the applicant the opportunity to address the question of its jurisdiction and took his response to that opportunity into account. For those reasons, I can see no reasonable argument the Tribunal failed to observe the requirements of procedural fairness in connection with its decision.

8. In light of those conclusions, there is no material argument available to the applicant that might reasonably lead to the making of an order different to the order made on 17 May 2016 dismissing the application.

Conclusion

1. The application for reinstatement is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     4 October 2016