Apv16 v Minister for Immigration and Border Protection
[2018] FCA 354
•20 March 2018
FEDERAL COURT OF AUSTRALIA
APV16 v Minister for Immigration and Border Protection [2018] FCA 354
Appeal from: APV16 v Minister for Immigration & Anor [2017] FCCA 1432 File number: NSD 1097 of 2017 Judge: CHARLESWORTH J Date of judgment: 20 March 2018 Catchwords: MIGRATION – whether valid application for review made to administrative Tribunal – time of receipt of notification of original decision – evidence before Tribunal and primary judge insufficient to show original decision dispatched to correct address – evidence adduced on appeal – evidence showing Tribunal lacked jurisdiction – appealable error – futile to remit to Tribunal – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 66, 412, 494B, 494C
Migration Regulations 1994 (Cth) regs 2.16, 4.31
Date of hearing: 21 November 2017 Date of last submissions: 21 December 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 29 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Mr Pinder Solicitor for the First Respondent: MinterEllison Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice ORDERS
NSD 1097 of 2017 BETWEEN: APV16
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
CHARLESWORTH J
DATE OF ORDER:
20 MARCH 2018
THE COURT ORDERS THAT:
1.The appeal is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
CHARLESWORTH J:
This is an appeal from a judgment of the Federal Circuit Court of Australia (FCC) dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal.
On 21 November 2017 I gave oral reasons for rejecting all but one of the grounds of appeal as unmeritorious. The appeal was adjourned part heard because of an issue arising in the course of the proceedings that might have affected the final disposition of the appeal in respect of one ground. What follows at [4] to [18] below is a written record (with minor alterations) of the oral reasons given on 21 November 2017 for rejecting all of the grounds of appeal, except for that ground potentially affected by what will be described as “the envelope issue”.
At a resumed hearing, the Court heard further submissions in relation to the envelope issue and the appeal may now be finally determined. For the reasons given at [19] to [28] below, the envelope issue does not assist the appellant. Accordingly, the appeal should be dismissed.
REASONS GIVEN ON 21 NOVEMBER 2017
The appellant is a citizen of Pakistan. In December 2015, he made an application to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Border Protection refusing to grant him a protection visa under the Migration Act 1958 (Cth). The Tribunal concluded that it did not have jurisdiction to review the delegate’s decision because the application for review had not been made within the time prescribed in the Act and the Migration Regulations 1994 (Cth).
Section 66 of the Act provided that when the Minister refuses to grant a visa, he is to notify the applicant of the decision in the prescribed way.
Regulation 2.16 relevantly provides:
2.16 Notification of decision on visa application
(1)For subsections 66(1) and 501G(3) of the Act (which deal with giving notice of decisions), this regulation sets out the way of notifying a person of a decision to grant or refuse to grant a visa.
…
Refusal to grant visa
(3)The Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act.
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.
The effect of reg 2.16 is that the methods by which the Minister may give notification of the decision to a visa applicant are those prescribed in s 494B of the Act, and the time at which the notice is deemed to have been received is to be calculated by reference to s 494C. Those provisions relevantly provide:
494B Methods by which Minister gives documents to a person
Coverage of section
(1)For the purposes of provisions of this Act or the regulations that:
(a)require or permit the Minister to give a document to a person (the recipient); and
(b)state that the Minister must do so by one of the methods specified in this section;
the methods are as follows.
…
Dispatch by prepaid post or by other prepaid means
(4)Another method consists of the Minister dating the document, and then dispatching it:
(a)within 3 working days (in the place of dispatch) of the date of the document; and
(b)by prepaid post or by other prepaid means; and
(c)to:
(i)the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or
(ii)the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; or
(iii)if the recipient is a minor—the last address for a carer of the minor that is known by the Minister.
494C 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).
…
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.
Section 412(1)(b) of the Act together with reg 4.31(2) of the Regulations provides that an application for review to the Tribunal by an applicant not in immigration detention must be given to the Tribunal within 28 days of the applicant being notified of the decision subject to review.
The time fixed by the Act is immovable. The Tribunal does not have the discretion to extend the time in any circumstances.
For the purposes of s 494B and s 494C of the Act, it was necessary that the Tribunal make a finding of fact as to when the appellant was taken to have received notification of the delegate’s decision to refuse to grant him the protection visa. The Tribunal found that the decision had been sent by registered post to the appellant at the last residential address that he had provided to the Department of Immigration and Border Protection, that address being 35A [street name redacted], Brighton Le-Sand, New South Wales 2216. The cover letter to the record of the delegate’s decision states the address as being 35A [street name redacted], Brighton-Le Sands, New South Wales 2216.
As can be seen, there is a slight variation between that address and the address originally provided by the appellant to the Department. The primary judge determined that nothing of moment turned on the grammatical and typographical differences. There is no appealable error affecting that conclusion.
The issue before the Tribunal was whether or not the appellant had, as he had claimed, notified the Department of a new residential address in the first week of April 2014, that is, prior to the date on which the delegate’s decision was made. I am satisfied that the Tribunal afforded the appellant procedural fairness in respect of the question of whether or not the decision had been notified to the correct address.
The Tribunal rejected the appellant’s claim that he had given the Department notice of an alternative address, namely a “form 929 document notice”. It did so on the basis, firstly, that there was no record of the Department ever having received the notice. In dealing with that issue, the Tribunal made an adverse credibility finding against the appellant, especially concerning the time in which he claims that he, in fact, learned of the delegate’s adverse decision. The grounds of appeal in this Court do not engage at all with the Tribunal’s adverse credibility finding.
The grounds are expressed in a notice of appeal filed on 6 July 2017 as follows (original grammar and spelling retained):
1.The Hon. Federal Circuit Court Judge Street made legal error by not considering procedural fairness on part of Administrative Appeal Tribunal (AAT) decision and made legal error.
2.The Hon. Federal Circuit Court Judge made legal error in his judgement by not properly Appling provision of s 424(a) and s 424 (b) of the Migration Act - 1958.
3.The Administrative Appeal Tribunal (AAT) made legal error by not correctly assessing documentary evidence and oral submission made by the Appellant and made legal and jurisdictional error.
4.The Administrative Appeal Tribunal (AAT) erred in its judgment by not applying s 36(2) of the Migration Act - 1958. The Tribunal has not considered serious harm faced by the Appellant.
5.The Administrative Appeal Tribunal (AAT) made legal error in its decision without providing source of information or authenticity of the information which considered.
6.The Administrative Appeal Tribunal (AAT) has not given enough consideration to the evidence provided, state persecution and fear for Appellant life and come to adverse conclusion.
The grounds in [2], [4] and [6] raise questions going to the issue of whether or not the appellant satisfied the criterion for a protection visa and, in particular, whether he was a refugee. The grounds also challenge the procedures said to have been adopted by the Tribunal when dealing with that question. These grounds of appeal have no merit. The Tribunal did not deal with the question of whether the appellant was a refugee. Rather, it concluded that it did not have jurisdiction to review the delegate’s decision.
The ground in [1] alleges that the FCC judge made an error by not finding that the appellant had been denied procedural fairness before the Tribunal. The learned primary judge correctly found that a ground of review before him, similarly expressed, was not made out. As I have mentioned, the Tribunal did bring to the appellant’s attention the question of the validity of his application for review. The appellant was given an opportunity to make submissions and give evidence about it and he availed himself of that opportunity.
The ground in [5] is expressed in vague terms. It has not been demonstrated that any questions concerning the authenticity of material before the Tribunal arose. That ground is rejected.
The ground in [3] is also vaguely expressed. It alleges that the Tribunal made a legal error by not correctly assessing documentary evidence and oral submissions made by the appellant. It is unclear whether the documentary evidence to which the appellant refers is the documentary evidence he supplied in support of his application for a protection visa, or whether that is a reference to documentary evidence bearing on the question of whether or not the Tribunal had jurisdiction to review the delegate’s decision. Having regard to the status of the appellant as a self-represented litigant, I am inclined to interpret the ground of appeal broadly, so as to encompass the second issue. So interpreted, it is this ground of appeal that gives rise to the envelope issue.
THE ENVELOPE ISSUE
The Tribunal found that the decision record of the delegate was sent by registered post in an envelope bearing the address that had been provided by the appellant, namely 35A [street name redacted], Brighton Le-Sand in New South Wales.
Relevantly, the first ground of judicial review before the primary judge was expressed as follows:
The Administrative Appeals Tribunal should have jurisdiction in my matter, as I did not receive the original application/refusal as specified in the decision.
In ground 3 it was said:
I am entitled to continue my review contrary to the decision by the Tribunal.
It appears that the learned primary judge did not ask, and the Minister did not seek, further particulars of these grounds. In determining the grounds, the primary judge nonetheless considered whether the Tribunal had committed jurisdictional error by finding that the decision record was dispatched to the correct address so as to enliven the deeming provisions in s 494B and s 494C of the Act. The primary judge concluded that it was open to the Tribunal to make the factual finding that it did on the material before it, namely that the decision record had been dispatched to the said address.
In the course of submissions on the appeal, this Court was taken to a copy of the face of the envelope which, it was said, was a true copy of the envelope which contained the decision record sent to the appellant. The same copy was in evidence before the Tribunal and before the primary judge. It became apparent during the course of submissions that a part of the address on the envelope was concealed by what appears to be a sticker reading “return to sender”. Neither the reasons of the Tribunal member, nor the reasons of the primary judge, made reference to the circumstance that the full address to which the decision record was sent could not be discerned from the copy of the envelope in evidence before them. That gives rise to a real question as to whether or not it was open to the Tribunal to find (as it did) that the decision record was sent to the last address that the appellant had provided.
The Minister acknowledges that the question of whether the envelope was correctly addressed went to a jurisdictional fact, such that an error in its determination would constitute jurisdictional error by the Tribunal. The Minister made no submission to the effect that the issue did not fairly arise before the primary judge, nor that the issue did not fairly arise on the grounds of appeal.
But for what follows, I would have allowed the appeal on this basis and remitted to the Tribunal the question of whether it had jurisdiction to hear and determine the application for review.
Counsel for the Minister appropriately took instructions as to whether the original of the envelope remained in existence. The original envelope was subsequently received in evidence on the appeal and the parties given the opportunity to make submissions in respect of it.
The Minister submitted that the original envelope demonstrated that the decision record was dispatched to the relevant address. I accept that submission. The sticker on the original envelope is translucent, such that the address can be seen beneath it. In addition, the sticker may be partially removed so as to reveal the address beneath. It follows that if the question of jurisdictional fact were to be remitted to the Tribunal, the Tribunal would be bound to conclude that it did not have jurisdiction to hear and determine the application for review.
In circumstances in which the appellant applied for a protection visa, and having regard to the strict and immovable deadline for making a review application to the Tribunal, it is unfortunate that the Tribunal did not identify the deficiency in the evidence before it and ask to inspect the original envelope. The primary judge ought to have identified the discrepancy as one affecting the outcome of the grounds of review before him. The primary judge committed appealable error by concluding, without qualification, that it was open to the Tribunal to make the findings that it did on the evidence before it.
However, remittal of the question to the Tribunal would be futile. On the evidence adduced on this appeal, the Tribunal did not have jurisdiction to hear the appellant’s application for review and, accordingly, the appeal should be dismissed.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth. Associate:
Dated: 20 March 2018
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