AUN15 v Minister for Immigration
[2015] FCCA 3376
•4 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUN15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 3376 |
| Catchwords: MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – notification of decision to refuse visa application – criteria for effectiveness of notification. |
| Legislation: Tribunals Amalgamation Act 2015, item 15AG of sch.9 Migration Act 1958, ss.66, 411, 412, 414, 494B, 494C, 474 Evidence Act 1995, s.161 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZJDS v Minister for Immigration & Citizenship (2012) 201 FCR 1 |
| Applicant: | AUN15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 217 of 2015 |
| Judgment of: | Judge Cameron |
| Hearing date: | 4 December 2015 |
| Date of Last Submission: | 4 December 2015 |
| Delivered at: | Perth |
| Delivered on: | 4 December 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr P.R. Macliver |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
There be no order as to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 217 of 2015
| AUN15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Kenya who arrived in Australia on 7 February 2009 as the holder of a student visa. On 5 March 2014 he lodged an application for a protection visa with the Department of Immigration and Border Protection (“Department”), alleging that he feared persecution in Kenya because of his homosexuality. On 1 December 2014 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), the predecessor of the second respondent, for a review of that departmental decision. The Tribunal found that it did not have jurisdiction to review the delegate’s decision as the applicant’s application for review had not been received within the period during which a valid application could be made and had been made on the wrong form. The applicant has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Relevant legislation
Notification of decisions to grant or refuse visas
Section 66(1) of the Act provides that when the Minister grants or refuses a visa, he must notify the applicant of that decision in the prescribed way. Regulation 2.16(3) of the Migrations Regulations 1994 (“Regulations”) provides that the Minister must effect notification of a refusal to grant a visa by one of the methods specified in s.494B. Section 494B relevantly provides:
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.
…
Transmission by fax, email or other electronic means
(5)Another method consists of the Minister transmitting the document by:
(a) fax; or
(b) email; or
(c) other electronic means;
to:
(d)the last fax number, email address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents …
Section 494C relevantly provides:
494CWhen 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).
...
Transmission by fax, email or other electronic means
(5)If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.
...
Review of decision to refuse visa
At the time the delegate’s decision was made, by virtue of s.411(1) of the Act as it stood then, that decision was an “RRT-reviewable decision”. Pursuant to s.414 of the Act, the Tribunal’s jurisdiction arose if an application to it complied with s.412 of the Act. Between them, s.412(1)(b) and reg.4.31(2) of the Regulations relevantly provided that an application for review of a decision covered by s.411(1) had to be made within twenty-eight days of the notification of the decision. Section 412(1)(a) provided that an application for review of an RRT-reviewable decision had to be made in the approved form.
Background facts
Primary application
In his application form the applicant nominated an address in Belmont, WA as his residential and postal address. In answer to a question which asked “Do you agree to the department communicating with you by fax, e-mail, or other electronic means?” the applicant answered in the affirmative and provided an email address.
On 7 November 2014 the Department wrote to the applicant inviting him to attend an interview on 18 November 2014. That letter was addressed to the applicant at an address in Victoria Park, WA, which was not the applicant’s nominated postal or residential address. The applicant did not attend his scheduled departmental interview and, as noted earlier, the delegate refused the applicant’s application for a protection visa on 1 December 2014. Under cover of a letter dated 1 December 2014, the delegate’s decision record was dispatched by prepaid registered post to the applicant at the incorrect Victoria Park address. That letter was returned to the Department on 22 December 2014 with the notation “Unclaimed”.
On 22 December 2014 the Department again sent to the applicant the letter enclosing the delegate’s decision record. On that occasion the letter was sent to the applicant at his nominated email address. In an internal Department email dated 10 March 2015, which was reproduced in the Court Book, a gateway engineer in the Department’s gateway team advised that the email to the applicant had been processed by the Department’s gateway mail relays and successfully delivered to the applicant’s email server relay at 08:11 (GMT/UTC) on 22 December 2014. The engineer indicated that he could not find any sign that the email to the applicant had bounced back.
On 6 March 2015 the applicant was granted a Bridging visa E which was ultimately cancelled on 11 March 2015. The applicant was then taken into immigration detention.
Review application
On 3 April 2015 the applicant sent to the Tribunal by facsimile an application for review. The applicant’s application was on a form headed “Application for review to the Migration Review Tribunal (For persons in immigration detention) (Form M2)”. Part E of that form was headed “Decision to be reviewed” and required the applicant to identify the decision which he wished to be reviewed and provide a copy of the relevant decision. The applicant did not fill out any part of Part E of the form or provide a copy of a delegate’s decision. However, in a covering letter dated 31 March 2015 he stated that after he had lodged his protection visa application he had not received any correspondence from the Department until 27 February 2015 when he was advised that his Bridging visa C had ceased on 19 January 2015. He stated that he then visited the Department’s office and had been advised that the letter notifying of the decision to refuse him a protection visa had been sent to him in December 2014 and the time in which he could seek a review of that decision had expired. The applicant stated that he had not received the notification email from the Department.
In a letter dated 7 April 2015 the Migration Review Tribunal acknowledged receipt of the applicant’s review application. The letter indicated that the applicant’s application was being treated as an application to seek review of the decision to cancel his Bridging visa E. The fax number to which that letter was sent was incorrect.
On 8 April 2015 the Migration Review Tribunal sent to the applicant a letter seeking his comments on the preliminary view it had formed that his application to review the cancellation of his Bridging visa E had not been lodged within the relevant time. A case note by a Tribunal officer indicates that after receiving the 8 April 2015 letter, on 9 April 2015 the applicant telephoned the Tribunal and advised that he had lodged an application seeking review of the decision to refuse him a protection visa, not the decision to cancel his Bridging visa E. He stated that he had not received the Department’s notification of the refusal of his protection visa. In an email sent to the Tribunal later that day, the applicant reiterated that he had not received the Department’s notification of the refusal of his protection visa application. Following the receipt of the applicant’s email, the Tribunal determined that the applicant had intended to lodge a review of the decision to refuse him a protection visa and treated his application as such.
In assessing the applicant’s review application, the Tribunal sought from the Department evidence of the email sent to the applicant notifying him of the decision to refuse his protection visa application. On 13 April 2015 the Department sent to the Tribunal a screen shot of one of the Department’s systems which indicated that the email had been sent to the applicant’s nominated email address on 22 December 2014 at 19:11:37. That evidence was corroborated by the annexure to the affidavit of the Minister’s solicitor, David John Ian Carroll, affirmed 12 November 2015, which indicates that an email addressed to the applicant at his nominated email address was sent to him at 19:11:37 on 22 December 2014 and included an attachment described as “Refusal Notification”.
The Tribunal’s decision and reasons
The Tribunal found that it had no jurisdiction to review the decision to refuse the applicant a protection visa because his application had been filed out of time. In that regard the Tribunal noted that the printout from the Department showed that the applicant had been sent an email at his nominated email address notifying him of the decision to refuse his application for a protection visa at 19:11:37 on 22 December 2014. It noted that the email had been sent to the same email address it had used to correspond with the applicant during the course of its review. The Tribunal also noted that while the applicant claimed not to have received the email, that could have occurred for a variety of reasons other than non-transmission from the Department’s computer system. It found that, in any event, non-receipt was not the same as [non-] notification.
The Tribunal found that the email had been transmitted to the applicant’s correct email address on 22 December 2014 and that, in accordance with s.494C of the Act, the applicant was taken to have been notified of the decision on 22 December 2014. It therefore found that the time period within which the applicant could have made his application had ended on 19 January 2015 and as his application had not been received until 3 April 2015, it had been received out of time.
The Tribunal also noted that the applicant’s review application had been made on a form M2, which was for applicants in immigration detention seeking a review with the Migration Review Tribunal, instead of the prescribed form R1. Referring to SZJDS v Minister for Immigration & Citizenship (2012) 201 FCR 1, the Tribunal found that as the applicant’s review application had not been made on the approved form, it also had no jurisdiction in the matter on that basis.
Proceedings in this Court
In the application commencing these proceedings the applicant alleged:
1.I never received an email from the department inviting me to attend an interview for the visa. I have always stayed in contact with the department of immigration.
My final application was made in detention centre and did not have an legal assistance hence was not sure of the form to lodge the appeal in.
Only notified that I did not attend an hearing from the department by my case manager while in detention.
Had prepared material to present to the department of immigration and consulted an immigration agent.
3.The application was not made within twenty-eight days.
4.I was not notified of the decision by the department.
5.The form used in the application.
The applicant’s complaint is that he was not advised of the delegate’s decision in time for him to make a valid application to the Tribunal for a review of that decision. I am prepared to accept that the applicant did not know about the delegate’s decision until it was too late and it is particularly regrettable that the Department seems to have been incapable of writing to the applicant at the residential and postal address he identified in his application for a protection visa. It seems to me that the applicant has a genuine cause for feeling aggrieved.
Unfortunately, none of that matters. The effect of the interlocking provisions of the Act and the Regulations is that as long as the Department follows the prescribed notification procedure an applicant is taken to have been notified of a departmental decision even if, in fact, he or she has never seen it.
I am satisfied by the evidence in the Court Book and in Mr Carroll’s affidavit that an email was sent to the applicant on 22 December 2014 to which was attached a copy of the delegate’s decision. None of the presumptions set out in s.161 of the Evidence Act 1995 concerning the dispatch of the email and the time it was dispatched have been rebutted. Even so, I do not consider it would be fair to the applicant to place any reliance on the presumption in s.161(1)(d) as he did not give evidence at the hearing of this application, his presentation being limited to submissions from the bar table.
I find that the delegate’s decision was sent by email to the applicant on 22 December 2014 and that he had twenty-eight days thereafter within which to seek merits review from the Tribunal. He did not apply for review until April 2015. The Tribunal was correct to conclude that the application for review was out of time and that it did not have jurisdiction in the matter. Given that finding, it is not necessary for me to reach a concluded view on whether the review was initiated using the wrong form.
Because the Tribunal did not err, the application must be dismissed. However, it is a matter of concern that the Department kept writing to the applicant at an address which was not the address identified in his protection visa application form. Its inefficiency in that regard also meant that the applicant did not have an opportunity to attend the interview with the delegate and so he was denied the opportunity to provide to the delegate such information as he might have wanted to give her. That seems to me to be a very unfair situation. It is not suggested that the applicant was advised by an email notification that he was invited to attend for an interview with the delegate.
In the circumstances, it would seem only fair for the Minister to allow the applicant to make a second protection visa application.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 17 December 2015
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