ASZ16 v Minister for Immigration and Border Protection
[2017] FCA 1629
•16 November 2017
FEDERAL COURT OF AUSTRALIA
ASZ16 v Minister for Immigration and Border Protection
[2017] FCA 1629
Appeal from: Application for extension of time: ASZ16 v Minister of Immigration [2017] FCCA 1617 File number: NSD 993 of 2017 Judge: RARES J Date of judgment: 16 November 2017 Legislation: Migration Act 1958 (Cth) ss 412, 494B, 494C Cases cited: ASZ16 v Minister of Immigration [2017] FCCA 1617 Date of hearing: 16 November 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 15 Counsel for the Applicant: The Applicant did not appear Counsel for the First Respondent: Mr T Liu Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice ORDERS
NSD 993 of 2017 BETWEEN: ASZ16
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
16 NOVEMBER 2017
THE COURT ORDERS THAT:
1.The application for an extension of time be dismissed.
2.The applicant pay the first respondent’s costs fixed in the sum of $1,756.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)RARES J:
This is an application for an extension of time of one day in which the applicant seeks leave to appeal from the decision of the Federal Circuit Court to dismiss his application to set aside the decision of the Administrative Appeals Tribunal, given on 29 February 2016, that it did not have jurisdiction to review the decision of the Minister’s delegate given on 24 September 2015 to refuse to grant a protection visa to the applicant: ASZ16 v Minister of Immigration [2017] FCCA 1617.
On 21 July 2017, a Registrar gave directions for the preparation of the application for hearing in the Full Court sittings commencing on 30 October 2017.
On 21 July 2017, the Court’s national operations team emailed the applicant at his Hotmail.com email address using, however, a lowercase x character in that part of his username, that he included in his application and affidavit of 13 June 2017 as commencing with an uppercase letter X. Thus, the username in the applicant’s email address, in the form which he supplied, commenced with an uppercase letter X, whereas the national operations team commenced typing the address to which the email for him was sent with a lowercase x. And, similarly, on 10 October 2017, when the national operations team emailed the parties with details of the listing today before me, the email to the applicant was addressed to an email address that commenced with a lowercase x.
On 9 November 2017, the solicitors for the Minister emailed a letter to the applicant. The letter referred to the hearing fixed in the Federal Court today at 9.30am and included the Minister’s written submissions. It did not mention that it was listed before me. The email was addressed to the applicant’s username as it appeared in his application and affidavit, namely, commencing with an uppercase X.
When the matter was called on this morning, the applicant did not appear. The Court has tried to telephone him twice on his telephone number given in his application and affidavit, but he has not answered. It is not clear whether email usernames forming part of the email addresses of persons with accounts at Hotmail.com, such as that of the applicant, are case sensitive in the username part. There is no evidence about that matter or what, if any, rules apply to govern the use of case sensitive characters in usernames for these accounts that the Minister has been able to identify.
Nonetheless, after I adjourned to make enquiries of the national operations team whether there was any record of the emails that it had sent to the applicant not having been delivered, I was informed by a member of the national operations team that if an email sent by them to an address is reported by the Court’s email service as being one that could not be delivered or had bounced back, that circumstance is recorded in the electronic court file. The electronic court file in this matter does not include any suggestion that the national operation team emails of 21 July 2017 or 10 October 2017 encountered any difficulty in being received at the applicant’s email account. Moreover, I am satisfied that the applicant did receive the email and letter from the Minister’s solicitors of 9 November 2017 notifying him of today’s hearing, albeit not specifying my name as the judge before whom it would be held.
In all the circumstances, I am satisfied that the applicant has been informed of today’s hearing and it is therefore appropriate for me to continue with it in his absence. That is the more so because the case which the applicant wishes to bring if he were allowed to file a notice of appeal is manifestly hopeless.
Consideration
The trial judge found that the Tribunal had come to the correct conclusion that it had no jurisdiction to deal with the applicant’s application for review because that had been filed outside the 28 day time period after he had been notified of the delegate’s decision permitted by s 412(1)(b) of the Migration Act 1958 (Cth).
The trial judge, before whom the applicant appeared in person, carefully examined the provisions of the Act. Section 494B(4) provided a method of calculating when a person was deemed to have been notified of a decision in the circumstances that occurred in the applicant’s case. That is, s 494B(4) provided that one method of dispatch was for the Minister to date and dispatch a document within three working days of the date of the document, in the place of dispatch, by prepaid post to the last address for service provided to the Minister by the recipient for the purposes of receiving documents. Then s 494C(4) provided that where, as here, a document was dispatched from a place in Australia to an address in Australia (including using that method in s 494B(4)) the addressee was deemed to have received the document seven working days, in the place of that address, after the date of the document.
As the Tribunal found and the trial judge confirmed, the delegate wrote to the applicant by letter dated 24 September 2015 to convey to him the delegate’s decision. The letter was addressed to the applicant at his residential address that he had provided in his visa application both as his residential address and current postal address.
His Honour found that the letter was sent on 25 September 2015 by registered post, which was a prepaid means of sending documents and that, accordingly, pursuant to s 494C(4)(a), the applicant was deemed to have received notice of the delegate’s decision seven working days after 24 September 2015, that is, 5 October 2015. The last day for the applicant to apply to the Tribunal to review the delegate’s decision was, accordingly, 3 November 2015, being 28 days after 5 October 2015. Since the applicant lodged his application for review of the delegate’s decision only on 22 January 2016, he did so well over two and a half months after the last possible date for lodgement in accordance with s 412(1)(b). It follows that the Tribunal’s decision that it had no jurisdiction is irrefragable.
The Tribunal wrote to the applicant on 2 February 2016 inviting him to comment on the validity of his application for review but he did not respond. On 29 February 2016, it gave its decision that it had no jurisdiction.
In my opinion, in those circumstances, the trial judge’s decision that the Tribunal correctly found it lacked jurisdiction could not successfully be challenged.
The applicant’s affidavit in support of his application for an extension of time of one day said that he had difficulty in affording the filing fees and had applied for an exemption. He said that the grounds of his appeal would be that the Tribunal and trial judge had failed to take into consideration “the material facts and life risks” that he would face were he forced to return to China. However, that could only be so if he were able to establish that the Tribunal actually had jurisdiction to hear the application for review. And in my opinion, it is impossible on the material before me to see that there is any case that could possibly be made to suggest that the applicant had filed his application for review of the Minister’s delegate’s decision within 28 days. Rather, he sought to file that well outside of the 28 day period allowed for him to do so under s 412(1)(b).
Conclusion
For those reasons, the application must be dismissed with costs fixed in the sum of $1,756.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 31 January 2018
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