ALN15 v Minister for Immigration (No.2)

[2015] FCCA 2054

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALN15 v MINISTER FOR IMMIGRATION (No.2) [2015] FCCA 2054

Catchwords:
MIGRATION – Protection (Class XA) visa – whether a decision was made – application for an extension of time – delay of 266 days – no sufficiently arguable ground that warrants an extension of time in the interests of the administration of justice – whether the failure to make a valid visa application was the result of a failure to notify – applicant received oral notification – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 258C, 46(2A), 474, 476, 477

Migration Regulations 1994 reg.3.21

Owners of the Ship, Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404

Applicant: ALN15

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 1021 of 2015

Judgment of: Judge Street

Hearing date: 30 July 2015

Date of Last Submission: 30 July 2015

Delivered at: Sydney

Delivered on: 30 July 2015

REPRESENTATION

Counsel for the Applicant: Mr H Jewell

Solicitors for the Applicant: Allens

Solicitors for the Respondent: Mr A Markus

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the Respondent fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1021 of 2015

ALN15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

1. This is an application said to be within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in relation to an application for protection lodged on 22 May 2014. The applicant seeks relief by way of mandamus, on the basis that there has been no migration decision in respect to that application, and in the alternative, an application for an extension of time under s.477 of the MigrationAct. 

2. Counsel for the applicant submitted that this Court has jurisdiction under s.476(1) to grant mandamus in circumstances where a migration decision should have been made under the Act and that the words “in relation to migration decisions” were capable of extending to the statutory obligation to make a decision under another provision of the Migration Act in circumstances where that would then be a migration decision in the meaning of s.476. Section 476 is a provision conferring jurisdiction on the Court and should be construed consistent with the principles in Owners of the Ship, Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404 at[426].

3. In my opinion, s.476 does confer a jurisdiction on this Court to grant mandamus in circumstances where there has been a refusal to make a decision that would otherwise be a migration decision in s.476. The application in this case identified a letter dated 18 July 2014 as potentially being a decision within s.476 in respect of which an extension of time was required under s.477.

4. Counsel for the applicant submitted that s.474 subs.(3)(j) refers to a failure or refusal to make a decision but that, in the present case, it was said that the letter dated 18 July 2014 was not a decision of an administrative character made or proposed to be made or required to be made, as the case may be, under this Act or under a regulation or other instrument within the meaning of s.474(2). The letter dated 18 July entitled Notification of Invalid Application for Protection Class XA Visa relevantly provided:

   Dear [ALN15],

   Notification of Invalid Application for a Protection (class XA) visa

   This letter refers to your application for a Protection (Class XA) visa, which was lodged at Sydney on 22 May 2014.

   I wish to advise you that the application for this visa made by the following applicant(s) was not a valid application:

   [ALN15]

   Your application for a visa is invalid because it did not meet section 46(2A) of the Migration Act 1958 (the Act). Under that provision you were required by an officer to provide personal identifiers in relation to the application. As you have not provided your personal identifiers your application in invalid.

   Invalid Application cannot be accepted or processed. Your application has not been accepted and will not be assessed against the visa criteria for grant or refusal.

   Questions about this assessment

   If you have questions about the process or information that was taken into account in determining that your application was not valid, you may contact Onshore Protection NSW.

   Lodging another application

   You may want to consider lodging a fresh application. Before lodging the fresh application you should check that the application meets the requirements for a valid visa application.

   Any new application will be considered on its individual merits.

5. The respondent submitted that the letter dated 18 July 2014 was clearly a migration decision of an administrative character and that the requirements of s.477 must be met by the applicant in the present case. I accept the respondent’s submission in this regard. The letter dated 18 July 2014 is in my opinion a decision of an administrative character.

6. An extension of time in the present case is one in respect of which there has been delay in the order of 266 days. For an extension of time under s.477, the Court must be satisfied that there is an adequate explanation for the delay and that there is a sufficiently arguable ground that warrants an extension of time in the interests of the administration of justice. The explanation for the delay in the present case was that the letter dated 18 July 2014 made reference to the possibility of lodging another application and that the applicant did do that and it was found to be invalid.

7. I do not accept that the letter dated 18 July 2014 conveyed a representation of entitlement to make a valid application or any representation referable to the decision conveyed in the letter dated 18 July 2014 that explains the delay in the present case. It is not necessary to set out the applicant’s migration history, which was explored in evidence.  Suffice to say that the applicant arrived in Australia on 21 January 2009. 

8. Given the substantial delay in the present case I do not regard the applicant has provided a satisfactory explanation for the delay and, on that ground alone, I decline the application under s.477.

9. Turning to the issue of whether there is a sufficiently arguable jurisdictional error, the applicant argued that s.46(2A)(ab) required written notification with the providing of personal identifiers. The applicant, in her affidavit, asserted that she did not receive a copy of the letter dated 6 June 2014 requiring the applicant to provide personal identifiers.

10. The applicant was cross-examined and, in my opinion, was an unsatisfactory witness.  The applicant did acknowledge that she had a problem with her short-term memory.  However, the applicant maintained that she contacted the Department on 3 July 2014, both in her affidavit, orally, and the written documents for 3 July 2014 at page 62 (applicant’s affidavit 14 April 2015) clearly contradict that version of the events by the applicant where it is recorded:

    Called client on all available phone numbers - left a message to let her know that she had not attended her biometrics interview and that can she please contact us via phone or email.

11. Further, in relation to an alleged conversation on 15 July 2014, the applicant gave an expanded version of the conversation when the issue was raised with the applicant as to the uncertainty of the meaning of paperwork.  I do not accept the applicant is a credible witness.  I do not accept the applicant did not receive the letter that was despatched according to the Department records to the applicant’s correct address as recorded in notations that appear on page 58 to 60 on 24 June 2014.  I find that the applicant did receive written notice being the letter dated 6 June 2014 and I do not accept the applicant’s evidence to the contrary.

12. Further, on any view the applicant had received oral communications requiring the applicant initially to attend an appointment for the provision of biometric information on 3 July 2015, which she failed to attend and was notified of a requirement to attend an appointment made for 15 July 2014. Those oral communication were, in my opinion, a fulfilment of the obligation under s.46(2A). Insofar as an obligation to require the applicant to provide one or more personal identifiers, it was submitted that the Court should accept there was a conversation to the effect that if the applicant did not have the paperwork somebody from the Department would contact the applicant and that this in essence amounted either to a waiving of the requirement to provide personal identifiers or a fulfilment of the obligation by the applicant by having attended and made herself available.

13. I do not accept the applicant’s version of the conversation.  It is not consistent with the practice that was the subject of evidence by Ms Abdallah.  I accept Ms Abdallah’s evidence and find that the practice was followed in this case. The practice was to ensure that persons that attended the Immigration Client Services counter who could not identify when their appointment was would be the subject of steps to identify from the appointment list or some other internal officer the appointment in respect of that particular person.  I do not accept the applicant’s version of the conversation on 15 July 2014.

14. Whilst there is a provision that requires a person to be provided with written information in relation to the obtaining of personal identifiers, being s.258C, together with reg.3.21, I accept the respondent’s submission that s.46(2A)(ab) does not require the applicant to be required in writing by an officer to provide one or more personal identifiers. I note that to impose such an obligation would be impractical in the physical exercise of the obtaining of those identifiers.

15. The respondent also pointed out that the requirement referred to under s.46(2A)(ab) was the subject of an obligation to actually provide the personal identifiers as specified s.46(2B). I am satisfied that the applicant was required by an officer to provide personal identifiers within the meaning of s.46(2A) and I am satisfied that the applicant did not do so and the applicant has not complied with that requirement and that the decision made on 18 July 2014 was valid.

16. I do not regard the grounds in the application as being sufficiently arguable to warrant an extension of time in the interests of the administration of justice. Further, if an extension of time were granted, for the reasons I have given there is no substance in the grounds advanced by the applicant. Further, if contrary to the reasoning above, there was no decision within s.476, I find no case has been made out to support the grant of mandamus.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 5 August 2015