Al Titi v Minister for Immigration
[2017] FCCA 1926
•17 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AL TITI v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1926 |
| Catchwords: MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal erred in finding that the applicant’s application for review was lodged out of time – whether the applicant was required to lodge an application for review within 21 days of receipt of an email from the Department notifying the applicant of the decision of the delegate to refuse his visa application – whether the Administrative Appeals Tribunal erred in finding that the 21 day period was 21 calendar days as opposed to working days – whether the Administrative Appeals Tribunal erred in finding that it had no discretion to extend time for the lodging of a review application – no jurisdictional error – application dismissed. |
| Legislation: Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 347, 474, 494C Migration Regulations 1994 (Cth), reg.1.15A, 4.10 Federal Circuit Court Rules 2001 (Cth), r.44.12 |
| Cases Cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Waterford v The Commonwealth (1987) 163 CLR 54 Reg v The District Court; Ex parte White (1966) 116 CLR 644 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 Rana v Minister for Immigration and Border Protection [2014] FCA 1233 Rana v Minister for Immigration & Anor [2014] FCCA 1488 Milon v Minister for Immigration & Anor [2009] FMCA 85 Khan & Anor v Minister for Immigration & Anor [2007] FMCA 419 Cao v Minister for Immigration & Anor [2009] FMCA 70 |
| Applicant: | IBRAHEEM SALEH AL TITI |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2897 of 2015 |
| Judgment of: | Judge Emmett |
| Hearing date: | 19 July 2017 |
| Date of Last Submission: | 19 July 2017 |
| Delivered at: | Sydney |
| Delivered on: | 17 August 2017 |
REPRESENTATION
| The applicant appeared in person with the assistance of an Arabic interpreter. |
| Solicitor for the Respondents: | Ms Ada Wong Mills Oakley |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2897 of 2015
| IBRAHEEM SALEH AL TITI |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 7 October 2015 (“the Tribunal”).
The Tribunal found that it did not have jurisdiction to review the applicant’s application for review. The issue before this Court is whether that finding was made according to law.
The first respondent, in written submissions, accurately summarised the background and the Tribunal’s decision, as follows:
“Background and the Applicant's case
2. On 18 March 2014, the applicant applied for a Partner (Temporary) visa: CB 1. In response to question 26 of the visa application (CB 2), the applicant agreed to the Department communicating with him by fax, email or other electronic means and provided the email address: [email protected].
3. On 19 June 2015, the delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.211 to Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations): CB 272-298. The delegate was not satisfied that the applicant was the spouse of the sponsor, having regard to the requirements of s 5F and reg 1.15A. Notification of the delegate’s decision was sent to the applicant by email on 19 June 2015.
4. On 11 July 2015, the applicant applied to the Tribunal for review of the delegate’s decision: CB 299. On 7 October 2015, the Tribunal found it had no jurisdiction to review the delegate’s decision as the application for review was not made within the prescribed period: CB 313-314.
The Tribunal’s decision
5. Pursuant to s 347(1)(b) of the Act and reg 4.10 of the Regulations, the Tribunal found that an application for review to it must be filed within 21 days of the day that the applicant was notified of the delegate’s decision: CB 314, [3].
6. The Tribunal found that the delegate’s decision was sent to the applicant by email on 19 June 2015: CB 314, [7]. Accordingly, the Tribunal found that the applicant was notified of the delegate’s decision on 19 June 2015 and that the 21 day period in which he could validly lodge an application for review to the Tribunal expired on 10 July 2015: CB 314, [8].
7. As the applicant did not lodge the application for review until 11 July 2015, the Tribunal found that it did not have jurisdiction in the matter. The Tribunal held it did not have any discretion to waive this requirement: CB 314, see [9].”
On 3 December 2015, the applicant attended a directions hearing before a Registrar of the Court. The Applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support. The matter was set down for hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) on 15 April 2016.
At that directions hearing the applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
The applicant was unrepresented before the Court this morning, although had the assistance of an Arabic interpreter.
On 15 April 2016, the applicant appeared before the Court with the assistance of an Arabic interpreter. The matter was adjourned for hearing to 19 July 2017 and the applicant was given a further opportunity to file submissions in support of his application. On 19 July 2017, each of the applicant and the first respondent was directed to file and serve further submissions by 25 July 2017. On that occasion, both parties consented to judgment being reserved following the filing of submissions, and the parties would be notified when the Reasons were ready for publication.
The applicant confirmed that he relied on the grounds of his application, filed on 23 October 2015, as follows:
“1. I believe that the decision that the Tribunal does not have jurisdiction in my matter is not only harsh but unjust and unfair as I explained the law should give me 28 days and when I completed my application I put my home address and I have been prejudiced by receiving the email giving me 21 days instead of 28 days.
2. My application involved partner grounds. It is not logical not to accept my application for review as my Australian partner and I are both prejudiced and there is no remedy except our expectation from the Honourable Court to quash the decision and make a ruling that even though my notification was received by email I should be given 28 days and not 21 days.
3. My decision was received by email on Friday 19 June 2015 as stated and I hope that the Federal Court will make a ruling in my favour that the application was received the last day of the week and the 21 days should count from Monday 22 June 2015.”
(Errors in original)
The applicant filed a submission in support of his application in which he stated that, even though the Department communicated with him by email, he did not know the “difference and privileges and disadvantages by using email”. He stated that he was not aware that receiving a reply by email would prejudice his right for review by reducing the timeframe from 28 days to 21 days.
The applicant also submitted that the Delegate made various mistakes in its decision in relation to various findings that it made. The applicant then stated in his submissions that there was sufficient evidence “to lead the decision maker to approve the partner visa and not refuse and the refusal was unreasonable and unjust as my partner and I have not been asked to attend an interview.” The applicant also stated that the Tribunal had overlooked “the information on file.”
Plainly the applicant’s complaint about what may or may not have happened before the Delegate, and various findings it made, cannot demonstrate jurisdictional error on the part of the Tribunal.
The applicant has not identified what information on the file the Tribunal overlooked. I understand the applicant’s complaints to be more in the nature of a disagreement with the decision of the Tribunal that it had no jurisdiction to conduct the review because the Tribunal found that the review application was not lodged within the statutory timeframe. Such a complaint invited merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:
“It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”
Section 347(1)(b)(i) of the Act provides relevantly that an application for review of a reviewable decision, such as the applicant’s, must be given to the Tribunal within the prescribed period, being a period ending not later than 28 days after the notification of the decision. Section 347(1)(b)(i) of the Act is as follows:
“Application for review of Part 5-reviewable decisions
(1) An application for review of a Part 5-reviewable decision must:
(a) be made in the approved form; and
(b) be given to the Tribunal within the prescribed period, being a period ending not later than:
(i) if the Part 5-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)--28 days after the notification of the decision; or
…” (Emphasis added)
The word “prescribed” in the phrase “within the prescribed period” is of critical importance. Section 5 of the Act defines “prescribed” as “prescribed by the regulations.” Section 347(5) of the Act provides that the regulations made for the purposes of s.347(1)(b) of the Act may specify different periods in relation to different classes of MRT-reviewable decisions. Section 347(5) of the Act is as follows:
“(5) Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of Part 5-reviewable decisions (which may be decisions that relate to non-citizens in a specified place).”
In the circumstances, s.347(b)(1)(i) of the Act fixes the maximum period within which applications may be made but has the effect of authorising the making of regulations prescribing shorter periods.
Regulation 4.10(1)(a) of the Migration Regulations 1994 (Cth) (“the Regulations”) provides that an application for review of a decision of the Delegate must be lodged within 21 days after notification to the applicant of the decision in accordance with the statutory requirements. Regulation 4.10(1)(a) of the Regulations relevantly prescribes the time for lodgement of applications with the Tribunal in the following terms:
“Time for lodgement of applications with Tribunal (Act, s 347)
(1) For paragraph 347(1)(b) of the Act, the period in which an application for review of a Part 5- reviewable decision must be given to the Tribunal:
(a) if the if the Part 5-reviewable decision is mentioned in subsection 338(2) or (7A) of the Act--starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received; or
…”
(Emphasis added)
It should be noted that reg.4.10(1)(a) of the Regulations prescribes a period of 21 days after the date on which the notice is received; whereas s.347(1)(b)(i) of the Act refers to a period of time after notification of the decision. However, nothing turns on this inconsistency (see Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 (“XIE”) at [4] to [5] per Spender, Kiefel and Dowsett JJ).
Accordingly, the applicant was required to make an application to the Tribunal within 21 days of deemed receipt of the Delegate’s decision. The applicant was notified by email and therefore, under s.494C(5) of the Act, receipt was deemed to be on 19 June 2015. Section 494C(5) of the Act provides as follows:
“When a person is taken to have received a document from the Minister
(1) This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A).
…
Transmission by fax, email or other electronic means
(5) If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.
…”
(Emphasis added)
The first respondent submits the requirement of 21 days in the Regulations means calendar days and not working days. “Working day” is defined in s.5 of the Act to mean “in relation to a place, means any day that is not a Saturday, a Sunday or public holiday in that place.” In the circumstances, the term working day excludes Saturdays and Sundays (see XIE at [9]).
Accordingly, the 21 days in reg.4.10 referred to 21 calendar days and includes weekends. In Rana v Minister for Immigration and Border Protection [2014] FCA 1233, Wigney J upheld a decision of Judge Driver in Rana v Minister for Immigration & Anor [2014] FCCA 1488 where Judge Driver held that reg.4.10(1)(a) of the Regulations prescribed the time limit for the purposes of s.347(1)(b) of the Act as 21 calendar days after notification. Similar approaches have been taken in other decisions of this Court (see Milon v Minister for Immigration & Anor [2009] FMCA 85 at [18]; Khan & Anor v Minister for Immigration & Anor [2007] FMCA 419; Cao v Minister for Immigration & Anor [2009] FMCA 70).
The first respondent read the affidavit of Jezeel Ibrahim, affirmed on 22 December 2015, which I accept confirms that an email was sent on 19 June 2015 to the email address identified by the applicant for correspondence in the review application lodged online on 11 July 2015. The email was sent at 10:16am on 19 June 2015 and included the following documents:
“a. “Covering letter (EMAIL) - RECIPIENT /IBRAHEEM SALEH MOHAMMAD AL TITI- (Main Applicant)”;
b. “IMMI Refusal Notification”;
c. “Form 1026i Limits on Applications in Aus”;
d. “M10 Migration Review Tribunal brochure”; and
e. “Ibraheem Al Titi decision record1”.”
As stated above, the Delegate’s decision was sent to the applicant by email on 19 June 2015. As stated above, s.494C(5) deemed receipt of the Tribunal’s email by the applicant to be the end of the day of transmission, namely, 19 June 2015.
In the circumstances, the expiration of the 21 day period, and the last day on which the applicant could validly lodge an application for review of the Delegate’s decision with the Tribunal, expired on 10 July 2015.
The Tribunal noted that it wrote to the applicant on 18 September 2015 advising him that the Tribunal may not have jurisdiction to review the application because it was not lodged within the 21 days and should have been lodged by 10 July 2015. The Tribunal was satisfied that the applicant was notified of the decision by email on 19 June 2015 and that the notification was in accordance with the statutory requirements. As stated above, the Tribunal found that the application for review was not filed until 11 June 2015.
The applicant responded to the Tribunal’s letter, dated 18 September 2015, on 26 September 2015. In his letter, the applicant stated that he had only opened the email on 22 June 2015, had rung the Department and was told that he had 28 days to appeal. The Tribunal noted that the applicant asked that being 1 day late not be held against him.
The Tribunal was not satisfied that the applicant was told by the Department that he had 28 days to appeal. The Tribunal noted that the letter accompanying the decision record clearly stated that the applicant must lodge his application for review within 21 calendar days.
Accordingly, the Tribunal found that pursuant to s.494C of the Act the applicant was taken to have been notified of the decision on 19 June 2015 and that the prescribed period within which the review application could be lodged ended on 10 July 2015. The Tribunal found that as the application for review was not lodged until 11 July 2015, it was not a valid application and the Tribunal had no jurisdiction to conduct the review.
The applicant’s grounds and submissions misunderstand the statutory regime imposed on the Tribunal. There was no discretion to extend time to the applicant for the lodgement for his review application. To the extent that Ground 3 asserts that the 21 days should count from Monday 22 June 2015, as it clear from the authorities above, the 21 day period is 21 calendar days and runs from 19 June 2015.
In the circumstances, the findings and conclusions of the Tribunal were open to it on the material and evidence before it and for the reasons it gave. The Tribunal’s decision record makes clear that the Tribunal reached its conclusions based on findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no power to interfere.
The proceeding this Court should be dismissed with costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 17 August 2017
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