Aln19 v Minister for Home Affairs
[2019] FCCA 3726
•6 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALN19 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 3726 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Protection visa application – application for judicial review of decision of Administrative Appeals Tribunal that it had no jurisdiction to review the decision of the Delegate of the Minister for Home Affairs to refuse to grant to the applicant a Protection (Class XA) (Subclass 866) visa – applicant applied to Administrative Appeals Tribunal for merits review outside of the time prescribed under the Migration Act 1958 (Cth) – applicant claimed that the notification letter advising him of Delegate’s refusal of a Protection visa to him and advising him of his review rights was unclear, unnecessarily confusing and ambiguous and did not comply with the requirement of s.66(2)(d)(ii) of the Migration Act 1958 (Cth) – held that notification letter was clear and any complexity in the information it contained was necessary so as to comply with s.66(2)(d)(i)–(iv) – the collocation “may not” in the notification letter meant in the context and circumstances “must not” and was not ambiguous and notification letter validly complied with s.66(2)(d)(ii) – no jurisdictional error established – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 66, 494B, 494C, 501 Migration Regulations 1994 (Cth) |
| Cases cited: Ali v Minister for Home Affairs [2019] FCA 1102 |
| Applicant: | ALN19 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 261 of 2019 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 6 December 2019 |
| Delivered at: | Sydney |
| Delivered on: | 6 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Hochroth of Counsel |
| Solicitors for the Applicant: | Legal Aid Commission of New South Wales |
| Counsel for the First Respondent: | Ms R. Graycar of Counsel |
| Solicitors for the First Respondent: | Sparke Helmore |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Amended Application filed in Court on 6 December 2019 is dismissed.
The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $7,467.
The name of the First Respondent be amended from ‘Minister for Home Affairs’ to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 6 February 2020 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 261 of 2019
| ALN19 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
Introduction
The Applicant is a male citizen of Malawi aged 29 years, having been born on 18 February 1990.
By Amended Application filed in Court on 6 December 2019 he seeks to quash and have re-determined according to law the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 9 January 2019 which found that it did not have jurisdiction to hear and determine an application for review of the decision of the Delegate (Delegate) of the First Respondent, the Minister for Home Affairs (Minister), dated 7 November 2018 refusing to grant to the Applicant a Protection (Class XA) (Subclass 866) visa (Protection visa) because it had been lodged with the Tribunal after the time prescribed under the Migration Act 1958 (Cth) (the Act).
Background
The Applicant arrived in Australia on an Orphan Relative (Class AH) (Subclass 117) visa on 16 May 2004. This visa was cancelled under s.501 of the Act by the Minister on 21 August 2017 because of the very substantial criminal record of the Applicant, extending from July 2008 when he was 18 years of age until June 2017. He sought revocation of that cancellation decision on 14 September 2017, which revocation was refused by a Delegate on 7 May 2018, whose decision was affirmed by the Tribunal on 31 July 2018.
Then on 4 October 2018 the Applicant lodged his application for the Protection visa.
Relevant Criteria and Law Applicable to Protection Visa Applications
A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding 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; ....
Claims for Protection
In short the Applicant claimed to be homosexual and feared being returned to Malawi because homosexuality is illegal there. The Applicant claimed that he would not be able to survive or find a job in Malawi because of hostility towards homosexual people and that there is also a high risk of HIV in Malawi.
Decision of Delegate
In the result, in her Decision Record the Delegate found that on the evidence she was not satisfied that there was any credible basis for the Applicant’s claim that he was in a homosexual relationship in Australia or that he feared harm on return to Malawi due to his homosexuality, and she dismissed his claims and refused to grant the Protection visa to him.
A notification of refusal letter dated 7 November 2018 (notification of refusal letter) enclosing the Decision Record of the Delegate was given to the Applicant by hand while he was in immigration detention on the same day, namely 7 November 2018. It is the validity of that notification of refusal letter which is in issue in this proceeding.
Decision of Tribunal
It is common ground that the Applicant lodged his application for merits review of the Delegate’s decision with the Tribunal on 18 November 2018. By letter dated 20 December 2018 the Tribunal advised the Applicant that his review application was invalid for the following reasons:
It appears that your application is not a valid application as it was not lodged within the relevant time limit. Pursuant to r.4.31(2) of the Migration Regulations 1994, the period in which an application for review of a Part 7-reviewable decision must be given to the Tribunal is 7 working days, commencing on the day the applicant is notified of the decision. In DZAFH v Minister for Immigration [2017] FCCA 387, the Federal Circuit Court held that the prescribed period in r.4.31 commences on, and includes, the day the applicant is taken to have been notified of the decision: at [44] – [46].
The primary decision was handed to you on 7 November 2018 meaning that 7 November 2018 was the date on which you are taken to have been notified.
In accordance with DZAFH, the last day for lodging the application for review was 15 November 2018.
As the application was not received until 18 November 2018, it appears to be out of time. However this is a matter which must be determined by a Member.
In its letter of 20 December 2018 the Tribunal also invited comments from the Applicant on whether his merits review application was validly made, and he responded by an email dated 27 December 2018 in the following terms:
Dear Officer
I have been asked why I was delayed in submitting my application for my protection visa.
The reasons is because I have trouble reading and writing and I needed assistance to understand and complete the application. This is quite an involved process for me. Firstly I had to explain to my partner what I wanted to say in the application, secondly he had to complete the application and then send it to me for signing. Once I signed it, I returned it to him and then he forwarded to you.
I am sorry it was late and I hope you can accept my reason.
By its Decision Record of 9 January 2019 the Tribunal found that it did not have jurisdiction on the basis as earlier advised in its letter of 20 December 2018.
Ground of Attack on Decision of Tribunal in this Court
The Applicant relies upon the following Ground:
1. The Second Respondent (the Tribunal) fell into jurisdictional error in determining that it had no jurisdiction to entertain the Applicant’s application for review of the decision of First Respondent (the Minister) to refuse him a protection visa because:
a. the Tribunal found that the Applicant had been notified of the Minister’s decision on 7 November 2018, such that the last date on which the Applicant could give the Tribunal an application for review was on 15 November 2018 under reg 4.31(1) of the Migration Regulations 1994;
b. in fact, the notification given to the Applicant on 7 November 2018 was an invalid notification, as it did not comply with the requirement in s 66(2)(d)(ii) of the Migration Act 1958 to “state…the time in which an application for review may be made”;
c. as a consequence, the Applicant was never notified of the Minister’s decision and time under reg 4.31(1) had not started running; and
d. it follows that the Tribunal was mistaken as to a jurisdictional fact in making its determination.
Accordingly, the sole question in this case is whether the notification letter validly and effectively complied with s.66(2)(d)(ii) of the Act in stating “the time in which the application for review may be made”.
At the hearing in this Court Mr Hochroth of Counsel appeared for the Applicant and Ms Graycar of Counsel appeared for the Minster.
Consideration
The Applicant was notified of the Delegate’s decision by the notification of refusal letter on 7 November 2018, which was a Wednesday and thus a “working day” as defined in s.5 of the Act, and the decision was delivered by hand as authorised by s.494B(2) and taken to have been received by the Applicant on that date by force of s.494C(2).
Therefore, pursuant to reg.4.31 of the Migration Regulations 1994 (Cth), as he was in immigration detention the Applicant had to give his application for merits review to the Tribunal within seven working days commencing on 7 November 2018, namely by Thursday 15 November 2018. The relevant portions of the notification of refusal letter, which on the basis of the information required to be given by s.66(2)(d)(i)–(iv) of the Act and a readable sized print necessarily extended over the first, second and third pages of the four page letter, in context stated thus:
7 November 2018
…
Transmission Method: By Hand
…
Review Rights
The Department cannot consider your visa application any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision. An application for merits review of this decision must be given to the AAT within the prescribed timeframe. As you are in immigration detention, the prescribed timeframe commences on the day on which you were notified of this decision, and ends at the end of seven working days (beginning with the first working day that occurs on or after that day).
(first relevant paragraph and emphasis added)
Note that this review period is prescribed in law and an application for merits review may not be accepted after that date.
(second relevant paragraph and emphasis added)
Lodging an application for merits review
Applications for merits review can be lodged online, in person, faxed or posted to any registry of the Administrative Appeals Tribunal (AAT).
Your application can be lodged by you or someone else on your behalf. The person who lodges the application must provide written notification to a detention review officer of the Department on the day that the application is lodged. The notification must provide details of the application, including details of your agent if applicable.
Online
of the Administrative Appeals Tribunal
[The letter included a table setting out the addresses of seven Registries of the Tribunal]
…
As this letter was given to you by hand, you are taken to have received it when it was handed to you.
(third relevant paragraph and emphasis added)
Your Immigration status
You are currently an unlawful non-citizen in Australia. You must contact the Compliance Section of your nearest departmental office by calling 13 18 81 to discuss your immigration status.
Being unlawful has serious consequences including possible detention and removal from Australia.
………………………………………………………………………
In my view, the notification of refusal letter sets out what is required by s.66(2)(d)(ii) of the Act and sets it out clearly. The core information given in compliance with s.66(2)(d)(ii) is found in the last sentence of the first relevant paragraph and the third relevant paragraph and which together read as follows:
… As you are in immigration detention, the prescribed timeframe commences on the day on which you were notified of this decision, and ends at the end of seven working days (beginning with the first working day that occurs on or after that day) ... As this letter was given to you by hand, you are taken to have received it when it was handed to you.
There is, in my view, nothing “piecemeal, entirely obscure and essentially incomprehensible” about the notification of refusal letter in this connection, as was the case with the notification letter under consideration in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 (DFQ17). The required information is not placed under an inapt or inappropriate subject heading, but rather states the relevant information under the meaningful, sensibly located and appropriate headings of “Review Rights” and “Lodging an application for merits review”.
The information is not “scattered” in a disconnected manner over several pages of the notification of refusal letter, but is appropriately set out in a unified and coherent manner, although extending over three pages. The information appearing after the heading “Review Rights” and extending through to the top of the third page is all in connection with the unified theme of advising the Applicant of his review rights and how and where he might lodge an application for merits review.
In other words, in my view the notification of refusal letter does not suffer from the vices of the notification letters held to be invalid for breach of s.66(2)(d)(ii) of the Act by the Full Court of the Federal Court in DFQ17 and BMY18 v Minister for Home Affairs [2019] FCAFC 189 (BMY18). Rather, it is relevantly similar to the notification letter held to be valid by Nicholas J in Ali v Minister for Home Affairs [2019] FCA 1102 (Ali), where at [26] – [27] his Honour set out the relevant terms of the notification letter under consideration by him.
In deference otherwise to the arguments of Mr Hochroth, in my view the language of the notification of refusal letter is not, as he submitted, “unnecessarily confusing”. Any complexity in the notification of refusal letter which exists is the result of the terms of the statutory regime: see BMY18 per Perram J at [19]. The definition of “working day” in s.5 of the Act is consistent with common knowledge in this country and, in any event, the notification of refusal letter is a document advising on legal rights under the Act and legal rights inherently involve degrees of complexity and density of thought, meaning and expression.
I do not accept Mr Hochroth’s submission that the second relevant paragraph comprising “Note that this review period is prescribed in law and an application for merits review may not be accepted after that date” is ambiguous or could give the impression that the prescribed period could be susceptible of an extension or that a review application could be entertained by the Tribunal after the relevant deadline. The simple fact of the matter is that while the word “may” is usually regarded as permissive and enabling a discretionary choice or decision, it is also regularly considered as carrying an imperative, mandatory and compulsory sense and signification.
Thus, there are numerous cases in the books where “may” has been recognised as carrying the sense of “must” or “shall”. In Johnsons Tyne Foundry Proprietary Limited v Maffra Corporation (1948) 77 CLR 544 at 568 Williams J said:
‘May’ unlike ‘shall’ is not a mandatory but a permissive word, although it may acquire a mandatory meaning from the context in which it is used, just as ‘shall’, which is a mandatory word, may be deprived of its obligatory force and become permissive in the context in which it appears.
In the well-known case of Julius v Bishop of Oxford [1880] 5 AC 214, Lord Blackburn at 241 and 243 pointed out that enabling or permissive words such as “may” can be construed as compelling and imperative whenever the object of the relevantly given power is to effectuate a legal right. Conversely, in my view permissive words can be given a mandatory and imperative effect when directed at governing, restricting or disabling the assertion of legal rights. The correct construction of the word “may” depends not on the abstract meaning of the word, but rather on the particular context of the word and the circumstances under consideration which then indicate whether it is to be given the sense of “must”: see Windeyer J in Finance Facilities Pty Limited v Federal Commissioner of Taxation (1971) 127 CLR 106 at 134.
In R (On the Application of Drita Hetoja) v Secretary of State for the Home Department [2002] EWHC 2146 (Admin) (Hetoja) Lightman J considered the collocation “may not” as used in s.99 of the Immigration and Asylum Act 1999 and a regulation made thereunder, which were to the effect that the Secretary of State for Home Affairs “may not have regard to ‘certain stipulated matters’”.
At [23] of Hetoja, Lightman J said as follows:
[23] The complaint raises two questions. The first is the construction of the words “may not” in section 97(2) and Regulation 13(a) and in particular whether the words are mandatory, meaning “must not”, or permissive, meaning “need not”. The word “may” is susceptible of meaning either: the actual meaning must turn on the context. The draftsman has given indications both ways. In favour of the permissive meaning, it is to be noted that in section 96(3) where the imperative is intended he uses the formula “must not”. On the other hand in section 101(7), where a mandatory meaning is clearly intended, he uses the formula “may not”. In the context of sections 95-7, the contrast is drawn between considerations which “must” be taken into account and considerations which “may not”. In that context, it is reasonably clear that “may not” is intended to mean “must not”. Support for this view may be found in section 97(7). For in that subsection, where the Secretary of State is intended to be entitled to have regard to or to disregard a consideration, this is expressly spelt out. The words “may not” in Regulation 13(a) likewise are mandatory. This is confirmed by the formula of words following, namely “but this shall not prevent”: nothing in Regulation 13(a) could “prevent” account being taken of a factor unless “may not” meant “must not”. I therefore take the view that the sections and Regulation impose a mandatory obligation to disregard the factors in question.
(emphasis added)
Of course the intended recipients of notification letters sent in compliance with s.66 of the Act would rarely include lawyers having the benefit of all the above quoted legal learning in relation to “may” meaning “must”. However, such a notification of refusal letter is necessarily to be expressed in the English language and in my view a plain English reader of the notification of refusal letter under consideration here would not have been led into a belief or understanding that the second relevant paragraph denoted that a review application could possibly be considered by the Tribunal after the prescribed review period had expired. Rather, such a plain English reader would have had no difficulty in understanding that the second relevant paragraph conveyed a warning to the effect that after the relevant review period an application for merits review “must not”, “shall not” or “cannot” be accepted.
I further note in this connection that the second relevant paragraph appeared in the notification letter considered in Ali (see Ali at [26]) without any adverse comment or finding by Nicholas J. It also appeared in the notification letter considered by the Full Court comprised of Reeves, Perram and Charlesworth JJ in BMY18 (see BMY18 at [17]) and again suffered no adverse comment. It is further relevant that s.66(2)(d)(ii) in its own terms refers to “the time in which the application for review may be made” and of which provision North J in Cao v Minister for Immigration and Citizenship (2009) 176 FCR 396 at 398 [13] said:
[13] Section 66(2)(d)(ii) requires that the notification state the time in which the application for review must be made. It may well suffice to comply with this provision that a statement of the date at which the time to apply expires was made. It does not require an explanation of the way in which the time is calculated or arrived at. The text of the section is clear. The context of the provision confirms this conclusion. The cases which give rise to the need for such notification often involve non-English speaking applicants and often without legal representation. It is likely that Parliament chose to make the notification as simple as is consistent with proper communication.
(emphasis added)
Further, context is always important when considering the possibility of ambiguity. Here the expression “may not” in the second relevant paragraph is preceded by the expression “prescribed by law” which warns a plain English reader of the existence of an authoritative limitation and restriction of the period of time after which review applications would not be accepted and the second relevant paragraph is preceded by the first relevant paragraph which contained in its second sentence as follows:
An application for merits review of this decision must be given to the AAT within the prescribed timeframe.
(emphasis added)
For completeness, I should note that at the hearing Mr Hochroth also submitted that the absence of an explanation or definition of the term “working day” in the notification of refusal letter itself resulted in invalidity and non-compliance with s.66(2)(d)(ii) of the Act. Ms Graycar submitted that there was no authority for this proposition. Mr Hochroth certainly did not suggest that there was any such authority and I reject the submission. There seems to me to be nothing under the statutory regime affecting and governing the notification of refusal letter that required that any definition of “working day” be given therein.
Conclusion
In my view, the Ground contended for by the Applicant is not made out and fails to establish that the decision of the Tribunal is affected by jurisdictional error. The notification of refusal letter complied with s.66(2)(d)(ii) of the Act and the Application filed in Court is to be dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 18 December 2019
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