FEDERAL CIRCUIT COURT OF AUSTRALIA
| APN19 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2342 |
| Catchwords: MIGRATION – Application for judicial review – decision of Administrative Appeals Tribunal – where notification letter advising of delegate’s decision sent via email – where application to Tribunal lodged outside of time limit – whether the applicant was validly notified – content and clarity of notification letter – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.66, 412, 476, 477, 494B, 494C Migration Regulations 1994 (Cth), reg.4.31 |
| Applicant: | APN19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 63 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 19 August 2019 |
| Date of Last Submission: | 19 August 2019 |
| Delivered at: | Perth |
| Delivered on: | 19 August 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr T Lettenmaier |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The applicant be granted leave to file in Court her affidavit sworn 15 August 2019.
The name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 63 of 2019
| APN19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex-Tempore; Revised from Transcript)
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 22 January 2019.
The Tribunal determined that it did not have jurisdiction to review a decision of a delegate of the first respondent, the Minister for Home Affairs (the “Minister”), to not grant the applicant a Protection (Class XA) visa (the “visa”). In effect, the Tribunal determined that the applicant’s application for review had been filed late, it had no discretion to extend the time for filing and, as such, had no jurisdiction to hear the…
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- Case
- [2019] FCCA 2342
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether the AAT had made a jurisdictional error in finding that it lacked jurisdiction. This required the Court to consider whether the applicant had been validly notified of the delegate's decision and, consequently, whether her application for review to the AAT was lodged within the statutory timeframes. The applicant also raised grounds relating to natural justice, procedural fairness, and the opportunity to present her case, which the Court considered in the context of jurisdictional error.
Judge Kendall reasoned that the applicant had agreed to receive correspondence via email and that the notification letter advising of the delegate's decision was sent to her nominated email address on 8 November 2018. The Court found that the applicant was taken to have been notified on that date, meaning the 28-day period for lodging an application for review expired on 5 December 2018. As the applicant lodged her application with the AAT on 10 December 2018, it was out of time. The Court affirmed the AAT's finding that it had no power to extend the time limit for lodging an application for review, citing relevant provisions of the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth), and the precedent established in *Beni v MIBP* [2018] FCAFC 228. The Court concluded that the AAT had not engaged in jurisdictional error.
Consequently, the Court dismissed the applicant's application for judicial review. The applicant was ordered to pay the first respondent's costs fixed at $5,000.
Orders
Orders of the court
1.
The applicant be granted leave to file in Court her affidavit sworn 15 August 2019.
2.
The name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
3.
The application be dismissed.
4.
The applicant pay the first respondent’s costs fixed in the sum of $5,000.
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH
PEG 63 of 2019
APN19
Applicant
And
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(Ex-Tempore; Revised from Transcript)
1.
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 22 January 2019.
2.
The Tribunal determined that it did not have jurisdiction to review a decision of a delegate of the first respondent, the Minister for Home Affairs (the “Minister”), to not grant the applicant a Protection (Class XA) visa (the “visa”). In effect, the Tribunal determined that the applicant’s application for review had been filed late, it had no discretion to extend the time for filing and, as such, had no jurisdiction to hear the matter before it.
3.
This proceeding is brought pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). To obtain relief from this Court the applicant must show that the Tribunal has made a jurisdictional error.
4.
The applicant appeared before this Court without the assistance of a lawyer. She was assisted by a Tamil interpreter. The Court thanks the interpreter for her considerable assistance. The Minister was represented by Mr Lettenmaier.
5.
In considering this application for judicial review, the Court had before it the application filed 18 February 2019, an affidavit from the applicant affirmed 17 February 2019, a further affidavit from the applicant affirmed 23 July 2019 and a third affidavit from the applicant filed in Court on the day of hearing. The Court also had a Court Book (“CB”) of relevant documents comprising 87 pages (marked as Exhibit 1) and the Minister’s outline of written submissions filed 26 July 2019.
Background
6.
The factual background of this matter is accurately set out at [3]-[7] of the Minister’s written submissions dated 26 July 2019. The Court adopts this summary as its own. That summary (with some minor additions) provides as follows.
7.
On 13 March 2018, the applicant, a citizen of Malaysia, applied for the visa (CB 1-40). In her application, the applicant agreed to receive correspondence by email (CB 17).
8.
On 8 November 2018, a Ministerial delegate refused to grant the applicant the visa and emailed a Notification Letter to the applicant’s nominated email address (CB 48). That email address was also confirmed as the correct email address in correspondence to the Department dated 13 April 2018.
9.
On 10 December 2018, the applicant applied for review to the Tribunal (CB 62-69). The same email address was provided for correspondence purposes and the applicant again agreed to receive all communications via email.
10.
On 19 December 2018, the Tribunal wrote to the applicant inviting her to comment on the validity of her application. The Tribunal was of the view that the application was invalid because it was lodged outside the time limit (CB 72-74).
11.
On 26 December 2018, the applicant responded with an explanation as to why her application was late (CB 75). Relevantly, this explanation stated:
I sent in an application for review for my case which you recieved on the 10th of December 2018. On the 19th of December 2018 I was notified by your department that this application for review was late and therefore invalid.
This came as a total shock to me as I believed that I in fact had 35 days to complete my application for review. I obtained this information from my page on the MYVEVO website.
I Believe that my lodgement was late due to a total misunderstanding on my behalf. If in fact I had known the application for review had to be lodged by the 5th of December 2018 I can assure you I would have completed and sent it on time. For this I appologise.
Also in our home my son [name] is the sole provider for our family. He works two jobs and six days a week to provide for us. During the day he works at All Suburbs Wood and at night he works for EDU Cleaning services. We recieve no other income and therefore can not afford the services of a migration agent or immigration lawyer.
So once again I whole heartedly apologise for sending my application for review into you late. I would like to thankyou for taking the time to read this letter and please consider my application for future review.
(Identifiers omitted. Without alteration)
12.
On 23 January 2019, the Tribunal notified the applicant of its decision to uphold the delegate’s decision (CB 77- 82).
Tribunal’s decision
13.
The Tribunal’s decision is short. In full, it provides:
1. This is an application for review of a decision of a delegate of the Minister for Immigration on 8 November 2018 to refuse to grant a protection visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 10 December 2018. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
2. As the applicant was not in immigration detention on the day the applicant was notified of the decision, an application for review of the decision had to be made within 28 days, commencing on that day: r.4.31(2) of the Migration Regulations 1994.
3. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 8 November 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. The Tribunal finds that the applicant is taken to have been notified of the decision on 8 November 2018.Therefore the prescribed period to apply for review ended on 5 December 2018.
4. Pursuant to s.412(1)(b) of the Act and r.4.31 of the Migration Regulations 1994 (the Regulations) an application for review of a decision must be made within 28 days after an applicant is notified of the decision in accordance with the statutory requirements. Specifically, the regulations require that an application for review ‘must’ be given to the Tribunal within the prescribed period. As such, no provision is made for any extension of the time limit, even in special or exceptional circumstances. Accordingly, the Tribunal does not have power to extend the prescribed periods under the Act or the Regulations. In Beni v MIBP [2018] FCAFC 228 the Full Federal Court found that the MR Division of the Tribunal does not have the power to extend the time in which an applicant may make a review application to the Tribunal. The Court held that s.29 of the Administrative Appeals Act 1975 (AAT Act) does not apply to the MR Division by virtue of s.242 of the AAT Act.
5. By a letter dated 19 December 2018 the Tribunal advised the applicant that the application for review was not valid as it was not lodged within the relevant time limits. The Tribunal invited the applicant to comment in writing by 2 January 2019 as to whether the application for review was valid.
6. By an email dated 26 December 2019 the applicant confirmed to the Tribunal that the application for review was lodged on 10 December 2018. The applicant stated that he had misunderstood the time limit for lodging her application for review and that she believed that she had 35 days to lodge the review. As the Tribunal does not have the power to extend the time in which an applicant may make an application for review and in circumstances where the application for review was not lodged within the relevant time limit, the Tribunal does not have jurisdiction in this matter.
7. Therefore, the Tribunal finds that the application for review was not received by the Tribunal until 10 December 2018 and that the application for review was not made in accordance with the relevant legislation. As such the Tribunal finds that it has no jurisdiction in this matter.
DECISION
8. The Tribunal does not have jurisdiction in this matter.
14.
The Court notes that the Tribunal refers to the applicant as “he” (at [6] of the Tribunal’s decision). While unfortunate, nothing turns on this (inferred) typographical error. In the context of this proceeding, this error is immaterial to the outcome.
Proceedings in this Court
15.
The applicant mistakenly indicated that she required an extension of time to bring an application in this Court. The applicant filed her judicial review application within the time period prescribed by s.477 of the Act. Hence, there is no need for an extension of time and the Court will not consider this request.
16.
The judicial review application contained six grounds as follows:
1. My case for Protection Visa not heard
2. Therefore no natural justice was given
3. Procedural errors due to above
4. Did not have an opportunity to present my case for a Protection visa
5. No Equity and Justice
6. Due procedure by Courts/Law is a basic right now sought.
17.
The first affidavit sworn 17 February 2019 contained as follows:
1. I am solely dependent on my son for my sustenance.
2. I have lived with him in Malaysia.
3. I was witness to the threats he had in Malaysia and the reasons he fled to Australia for protection.
4. I am presently separated from my husband.
5. I fear to live alone in Malaysia as I will be a target for attacks against my family given the circumstances stated above.
6. Due to the policies of the government in Malaysia those of Indian origin like me are at risk if they fall foul of any person or persons who have influence with the police and armed forces.
7. Given these circumstances stated above I sought to have my case heard-before the Tribunal.
8. However, as II have no knowledge of English and was not assisted by a competent migrant agent or lawyer I miss~ the date to appeal to the Tribunal
18.
The second affidavit sworn 24 July 2019 states as follows:
1. I am the appellant in case APN 219 v Minister for Home Affairs First Respondent, Administrative Appeals Tribunal Second Respondent.
2. I do not have a lawyer to assist me.
3. My knowledge of English is basic and I need an interpreter in the Tamil language.
4. I had to flee Malaysia and seek refuge in Australia as the enemies of my son targeted him and the whole family, including me, to be destroyed as an act of revenge.
5. The owner of the business where my son worked is a Malay who has political influence which includes the ability to influence the police in their investigations. This Malay gentleman is the owner of a business involving gambling where my son worked.
6. The policy of the government of Malaysia is to favor Malays on the basis of the "Bhumi Putra" policy.
7. Indian Tamils like me are not only disadvantaged but have no protection from the police if there is any conflict with a Malay.
8. Hence, I have a well-founded fear of retuning to Malaysia and therefore seek a Protection Visa to remain in Australia.
19.
The affidavit the applicant handed up in Court today provided as follows:
1. I am the appellant in case APN 219 v Minister for Home Affairs & ANOR.
2. I do not have a lawyer to assist me.
3. My knowledge of English is basic.
4. Hence when I received the email informing me of the decision I was confused.
5. I submit that the letter in question did not strictly comply with section 66(2)(d) of the Migration Act.
6. Due to my weakness in the English language the terms used in the letter were not clear and this was one of the reasons why I was not able to submit the appeal within the given time.
7. The decision was conveyed to me by email which I am not too familiar with.
8. Therefore I appeal that I be given an opportunity to submit my case to the Administrative Appeals Tribunal
20.
The Court notes that the applicant was not legally represented today and is not fluent in the English language. To assist the applicant, the Court explained to her what this Court could and could only look to the issue of jurisdictional error. It was explained to her that there were various categories of jurisdictional error. For migration decisions, they most commonly include, but are not limited to, the following categories:
a) where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b) where the decision-maker ignores relevant material: Craig at 198;
c) where the decision-maker relies on irrelevant material: Craig at 198;
d) where the decision maker fails to consider a “claim” or a relevant “integer” of a claim: Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42];
e) where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
f) where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]-[17]; and
g) where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
21.
The Court also explained to the applicant that this Court cannot undertake a merits review of the Tribunal’s decision. This Court cannot grant her the visa. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
22.
In this context the Court asked the applicant to explain what she felt the Tribunal “did wrong”. Unfortunately, the oral submissions provided did not assist the applicant in relation to the issue of jurisdictional error. Broadly, the applicant’s comments focused on the contents of her protection visa and to merits review generally.
Consideration
23.
The Court notes that it has previously published two decisions concerning the issues that arise in this matter: CZI18 v Minister for Home Affairs & Anor [2019] FCCA 2080 (“CZI18”) and ELM18 v Minister for Home Affairs & Anor [2019] FCCA 2108 (“ELM18”).
24.
Pursuant to s.412(1)(b) of the Act (and as proscribed by reg.4.31(2) of the Migration Regulations 1994 (Cth) (the “Regulations”)), an application for review of the delegate’s decision must brought within 28 days of the date of notification of the delegate’s decision.
25.
In this case, it appears the applicant initially conceded that she was, in fact, late in lodging her application as she was under the impression she had 35 days, as opposed to 28 days. Nonetheless, the Court must itself be satisfied that the application was lodged late, and to do so it must first consider if the content of the notification of the decision (the “Notification Letter”) was in accordance with s.66 of the Act.
26.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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