APN19 v Minister for Immigration
[2019] FCCA 2342
•19 August 2019
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 |
| Cases cited: Ali v Minister for Home Affairs [2019] FCA 1102 Craig v State of South Australia (1995) 184 CLR 163 CZI18 v Minister for Home Affairs & Anor [2019] FCCA 2080 |
| 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 matter before it.
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.
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.
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
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.
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).
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.
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.
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).
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)
On 23 January 2019, the Tribunal notified the applicant of its decision to uphold the delegate’s decision (CB 77- 82).
Tribunal’s decision
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.
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
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.
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.
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
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.
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
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].
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.
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
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”).
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.
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.
It is noted that in the applicant’s third affidavit, filed today, the applicant specifically states at [5] that the letter in question did not comply with s.66. The Court will address this issue below.
If the Court is satisfied that the Notification Letter accords with the statutory requirements, it is then for the Court to determine if the applicant was validly notified and if the application was outside the time limit.
DFQ17 v Minister for Immigration & Border Protection
The legislative provisions referred to above as relevant to this matter have been extensively canvassed by Perram J in DFQ17 v Minister for Immigration & Border Protection [2019] FCAFC 64 (“DFQ17”).
Counsel for the Minister argued that the facts in this case are distinguishable from the facts in DFQ17.
The Court has highlighted the relevance of the decision in DFQ17 in its judgments in CZI18 and ELM18. The Court repeats that summary here.
DFQ17 concerned an appeal from the Administrative Appeals Tribunal. The Tribunal had been asked to review a decision of the delegate to refuse the appellant’s application for a protection visa. That refusal was communicated to the appellant by a letter dated 3 February 2017. That letter was sent to a post office box address the appellant had provided on her protection visa application.
Justice Perram explained that an appeal to the Tribunal must be brought within 28 days of the date upon which a visa applicant is taken to have received notification that the visa application has been refused. The Minister contended that the appellant was duly notified by the delegate that her application for the visa had been refused by means of the letter dated 3 February 2017. Consequently, she needed to lodge any review application by 13 March 2017. She did not do so until 28 March 2017. The Tribunal concluded that her application was out of time and could not be entertained.
His Honour noted, relevantly, that:
a)on the second page of the letter sent to the applicant under the heading ‘Review Rights’ the letter says:
‘An application for merits review of this refusal decision must be given to the AAT within the prescribed timeframe. This timeframe commences on the day on which you are taken to have been notified of the decision, and ends at the end of 28 days.’
b)on the third page of the letter under the heading ‘Financial or case worker assistance’ the letter says:
‘As this letter was mailed to an Australian address from within Australia, you are taken to have received it seven working days after the date of this letter. A working day does not include weekends or public holidays in the Australian state or territory where this letter was posted.’
Justice Perram found that the letter in question was obscure and confusing. His Honour explained that the question for the Court was whether a letter which explains the date by which a review application must be lodged in an obscure manner ‘states’ the time within which such application must be lodged within the meaning of s.66(2)(d)(ii). If it does not, the visa applicant has not been notified of the refusal and the 28 day period in which to apply for a review has not yet commenced to run.
In assessing whether the time by which the application to the Tribunal was to be made was ‘stated’ in the letter of 3 February 2017, His Honour noted that s.66 of the Act requires the Minister to notify an applicant of a decision to refuse to grant a visa. Section 66(2)(d)(ii) relevantly provides:
Notification of decision
…
(2)Notification of a decision to refuse an application for a visa must:
…
(d)if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500—state:
…
(ii) the time in which the application for review may be made; and
…
His Honour then asked: what is the time in which a review application must be made? He noted that if the applicant is not in immigration detention the issue is governed by reg.4.31(2) of the Regulations which provides:
4.31Time for lodgement of application with Tribunal
…
(2)For paragraph 412(1)(b) of the Act, if an applicant is not in immigration detention on the day the applicant is notified of a Part 7-reviewable decision, the period in which an application for review of the decision must be given to the Tribunal by or for the applicant is 28 days, commencing on the day the applicant is notified of the decision.
Note:If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.
His Honour explained that in light of these legislative provisions, an unsuccessful applicant must make any review application to the Tribunal within 28 days of the day the applicant is notified of the decision or, should that decision fall on a non-working day, the next working day.
His Honour then asked: when is an applicant notified of a refusal decision? He noted that the answer to this question turns upon the mode of delivery by which the refusal is communicated. It was noted that in DFQ17, the decision was sent by pre-paid post. Accordingly, the matter was governed by s 494C(4) which provides:
494CWhen a person is taken to have received a document from the Minister
…
Dispatch by prepaid post or by other prepaid means
(4)If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a)if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or
(b)in any other case—21 days after the date of the document.
…
His Honour highlighted that the letter in DFQ17 was sent from an address in Sydney to a post office box in Sydney. Consequently, subclause (a) applied and the appellant was taken to have received the decision on 14 February 2017 – that being 7 working days after the date of the letter of 3 February 2017. Hence, if the letter of 3 February 2017 was an effective notification of the decision then the effect of reg.4.31(2) was that any review application with the Tribunal had to be made by the appellant within 28 days, i.e., 13 March 2017.
Having assessed the letter and the relevant legislative provisions, His Honour expressed concerns as follows:
45.Pausing here, it should be noted that the calculation of 13 March 2017 from 3 February 2017 is not a straightforward exercise. Section 494C(4)(a) uses the expression ‘7 working days… after the date of the document’ whereas reg 4.31(2) stipulates ‘28 days, commencing on the day the applicant is notified of the decision’. Applying s 36(1) of the Acts Interpretation Act 1901 (Cth) (which applies to reg 4.31(2) by virtue of s 13(1)(a) of the Legislation Act 2003 (Cth)) and having regard to the difference between days and working days, the 7-day period is not inclusive of the first day, weekends and public holidays but the 28-day period is inclusive of the first day, weekends and public holidays. Accordingly, 14 February 2017 must be double-counted. Whilst previous decisions of this Court have accepted that the notification letter need not draw attention to the need to double-count the day a person is deemed to have been notified of the decision (see, for example, Cao v Minister for Immigration and Citizenship [2009] FCA 586; 176 FCR 396 per North J; 176 FCR 396; CGJ16 v Minister for Immigration and Border Protection [2018] FCA 1437 per Allsop CJ), it does serve to highlight a certain need for clarity.
46.The first step in the Appellant’s argument is that s 66(2)(d)(ii) requires that a notification of a refusal decision must ‘state… the time in which the application for review may be made’. The second step is the factual contention that the letter annexed below is so obscure it cannot be said to state that time. The final step is that a decision which is sent to an unsuccessful applicant which does not state the time in which a review may be made to the Tribunal, has not been notified within the meaning of reg 4.31(2) so that the 28 day period has not yet begun to run.
47.As the appeal was conducted, this third step was not disputed by the Minister…
48.Attention may therefore be confined to the first two steps…
49.One starts with the meaning to be given the word ‘state’ in s 66(2)(d)(ii)….
….
58.I conclude that when s 66(2) uses the word ‘state’ it means that the notification must set out the information in each of the subsections in a way which is not only complete …. but clear as well. This required the letter of 3 February 2017 …. clearly to convey to the Appellant that the period in which she could seek review ended on 13 March 2017.
59.Turning then to the letter of 3 February 2017, the question is whether it ‘states’ the time within which a review application must be made within the meaning of s 66(2). This is a question of law: Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439 at 450 [24] per Gleeson CJ, Gummow and Callinan JJ. As I have explained, the question of whether the notification stated ‘the time in which the application for review may be made’ necessarily devolves to an inquiry into whether that information was clearly conveyed.
60.As described above, the letter referred to the time in which the application for review may be made in different sections across different pages. On page 2 of the letter under the heading ‘Review Rights’ the letter referred to the 28-day period during which the Appellant could seek review of the delegate’s refusal decision. The letter then referred to the seven working day period by which the Appellant was taken to have received the notification on page 3 under the heading ‘Financial or Case Worker Assistance’. The date of the letter was on the top left of page 1. It was from these three separate pieces of information across three pages under different headings that the Appellant, whilst remembering to double-count 14 February 2017, was expected to calculate 13 March 2017.
61.The Minister submitted that there was nothing misleading or erroneous about putting the statement as to the date on which the letter was taken to be received on a separate page because the period in which review may be sought was not the only matter in the letter that proceeded by reference to that date. Accordingly, it made logical drafting sense to express the deemed notification period separately from the explanation of the period in which review may be sought. Whilst that may explain the intent behind the drafting choices of the Minister, the present question is whether the letter clearly conveyed that the time in which the application for review may be made ended on 13 March 2017.
62.I have no doubt that in this case the letter of 3 February 2017 failed to convey clearly the information that any review application had to be made by 13 March 2017. It was piecemeal, entirely obscure and essentially incomprehensible. Consequently, the letter did not state the matter in s 66(2)(d)(ii). It was not in dispute that this meant that time had not yet commenced to run. The Tribunal erred in concluding that the review application was out of time and was therefore wrong in thinking it had no jurisdiction to entertain the review application.
Did the notification letter “state” the time in which to file an application for review?
Having reviewed the Notification Letter in this case, the Court concludes that it is clearly distinguishable from the letter the subject of DFQ17. The Court is satisfied that, here, the Notification Letter was not “piecemeal, entirely obscure and essentially incomprehensible”.
The Court is satisfied that the Notification Letter here meets s.66(2)(d) of the Act, and clearly indicates to the applicant what her review rights are, as:
a)the date of the letter was at the top left of the first page of the notification letter (CB 48);
b)at the base of page 1, under the heading “Review rights”, it is indicated that the timeframe in which to seek review at the Tribunal is 28 days ; and
c)on page 3 of the notification letter under the heading “Financial and case worker assistance” it is stated “As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted”.
While all of this information could, arguably, have been provided on the one page, the letter is to be read as a whole: Ali v Minister for Home Affairs [2019] FCA 1102. While the placement of the information on page 3 under “Financial and case worker assistance” is odd, it does not render the Notification Letter invalid. Read as a whole by a person exercising “reasonable care”, the Notification Letter sufficiently conveys the time in which an applicant has to bring a review application.
The facts of this case are distinguishable from DFQ17. In DFQ17, there was the added complexity of having to double count days and make a calculation based on two different definitions of what constitutes a “day”. Here, the applicant had all the information she required. She was not faced with differing definitions of what constitutes a day. Nor was she required to undertake two separate calculations. Rather, there was one straightforward calculation relevant to the 28 day period.
The Court is satisfied that the Notification Letter in this matter indicated the applicant’s review rights with clarity. The Notification Letter does not suffer the same deficiencies as seen in DFQ17.
The Court concludes that the Notification Letter here satisfies the requirements of s.66(2) of the Act.
The applicant is found to have received the relevant notification on 8 November 2018.
Was the applicant “notified” and was the application lodged late?
Having determined that the Notification Letter was valid, the Court must now address whether the transmission of the notification was carried out in accordance with the relevant legislative requirements.
At question 40 of the applicant’s visa application she provided an email address. At question 41 the applicant answered “yes” to receiving communications via email (CB 17). It is observed that there is a note beneath question 41 that identified electronic communication (i.e, email) as the preferred method of communication.
The Notification Letter was sent via email to the email address indicated at question 40. Sending a document by email is an approved method by which the Minister may provide a document to a person: s.494B(5) of the Act.
Having sent the Notification Letter by email to an email identified by the applicant, the applicant is deemed to have received the letter at the end of the day on which it was transmitted to her electronically: s.494C(5) of the Act.
Hence, the applicant “received” the notification letter on 8 November 2018 and had 28 days from that date to lodge the application for review at the Tribunal.
The applicant was required to have filed the application for review by 5 December 2018. The application for review was not made until 10 December 2018. The application was 4 days outside of the statutory time limit and the applicant herself appears to accept this in her submissions to the Tribunal.
As correctly identified at [4] of the Tribunal’s decision, the Tribunal had no discretion, nor, indeed, any power, to extend the time in which the applicant could lodge her review application. While the applicant explained that there was a misunderstanding and she believed she had 35 days to lodge a review application, the Tribunal has no power to extend the time. The applicant’s explanation was, regrettably, in that context, of little assistance to her.
In circumstances where an applicant had been validly notified and had lodged the application outside of the statutory time limit, the Tribunal had no choice but to determine it did not have jurisdiction: Beni v Minister for Immigration & Border Protection [2018] FCAFC 228.
There was, consequently, no error in the Tribunal’s finding that the application did not meet the criterion of s.412(1)(b) of the Act and reg.4.31 of the Regulations.
The applicant’s further contentions
In relation to the applicant’s grounds of review and the contents of the applicant’s affidavit the Court notes that the Tribunal has not denied the applicant procedural fairness or due process. The Tribunal acted in accordance with the statutory requirements and, while the applicant’s case was not “heard”, the applicant lost the right to have her case “heard” when she failed to file the application within the prescribed time limit.
In respect of those paragraphs of the applicant’s affidavit where reference is made to her not having legal representation and limited language ability, the Court sympathises. However, there is no right to representation in migration proceedings and there was no requirement for the Notification Letter to be in the applicant’s native language: SZGWH v Minister for Immigration & Citizenship [2007] FCA 543 at [12].
Further, to the extent that the applicant expresses concerns that the information was sent via emails and that she is not familiar with this sort of electronic correspondence, again, while the Court sympathises, the Court cannot assist her in this regard. It is noted that the applicant clearly indicated that she was content to have all correspondence sent to her electronically via email. At no time did she indicate that this was an inappropriate means of transmission.
In respect of the remaining paragraphs of the affidavits, the content in these affidavits pertains to the merits of the applicant’s claim to be afforded protection status. This Court has no jurisdiction to assess these claims. They are, in the context of these proceedings, irrelevant.
Conclusion
This is a most unfortunate case. The applicant here quite honestly thought she had done right thing. Unfortunately, she had not. Her application was four days late and, in the circumstances of this case, where she was validly notified, there was nothing the Tribunal could do to assist her. Regrettably, in these circumstances, there is also nothing that this Court can do, as no error is found in relation to the Tribunal’s decision
The Tribunal was correct to determine that it did not have jurisdiction. The application, accordingly, must be dismissed.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 2 September 2019
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