FEDERAL CIRCUIT COURT OF AUSTRALIA
| AXY17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2006 |
| Catchwords: MIGRATION – Extension of time application made pursuant to section 477(2) – extension of time in relation to the application to review the Delegate’s decision and the Tribunal’s decision – binding and significant jurisprudence preventing the Tribunal from extending time for applications to review – no authorities offered by the Applicant’s lawyer to support his contention that the Tribunal has this power – no evidence to support an extension of time being granted to the application for review filed in this Court – responsibility on legal representative properly “to consider” the reasonable prospects of success of an Application – application to extend time refused – personal costs order made against Applicant’s solicitor – consideration of operation of Code of Conduct for migration agents. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J(1)(a), 5J(4)(b), 36(1), 36(2A), 36(2)(aa), 48B, 314(2), 412, 412(1)(b), 477(1) – (3), 486E, 486E(1)(b)(i), 486F(1)(a) & (c) |
| Applicant: | AXY17 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | CAG 13 of 2017 |
| Judgment of: | Judge Neville |
| Hearing date: | 19 July 2017 |
| Date of Last Submission: | 19 July 2017 |
| Delivered at: | Canberra |
| Delivered on: | 7 September 2017 |
REPRESENTATION
| Counsel for the Applicant: |
| Solicitors for the Applicant: | Hugh Ford and Associates |
| Counsel for the Respondents: |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application, filed 6th March 2017, be dismissed.
Pursuant to ss.486E and 486F of the Migration Act 1958, the Applicant’s solicitor pay the First Respondent’s costs in the sum of $3606.00.
Pursuant to s.486F(1)(c) of the Migration Act 1958, within 14 days of the date of these Orders, that is by close of business on 19 September 2017, the Applicant’s solicitor is to repay to the Applicant any costs she has already paid to her solicitor in relation to the current migration litigation.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT |
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Details
- Case
- [2017] FCCA 2006
- Decision Date
CaseChat Overview and Summary
This matter concerned an application for review of a delegate of the Minister for Immigration's decision to refuse to grant a protection visa. The applicant sought review of this decision before the Tribunal, which found it had no jurisdiction to hear the matter. The applicant subsequently sought judicial review of the Tribunal's decision.
The primary legal issue before the court was whether the Tribunal had erred in law by finding that it lacked jurisdiction to review the delegate's decision. This turned on whether the applicant's application for review had been lodged within the prescribed time limit, as stipulated by section 412(1)(b) of the *Migration Act 1958* (Cth) and regulation 4.31 of the *Migration Regulations 1994* (Cth).
The Tribunal reasoned that the applicant was notified of the delegate's decision on 10 November 2016, and pursuant to section 494C of the Act, was taken to have been notified on that date. This meant the 28-day period for lodging a review application expired on 8 December 2016. As the application was received by the Tribunal on 9 December 2016, it was out of time, and the Tribunal therefore lacked jurisdiction. The applicant's migration agent contended that an electronic lodgement attempt was made on 7 December 2016, but due to IT system failures, the application was not successfully uploaded until 9 December 2016. The Tribunal had regard to this explanation but noted that the IT work was undertaken two weeks after the alleged problems were identified and that the agent's explanation did not overcome the statutory notification date.
The court ultimately dismissed the application for judicial review, upholding the Tribunal's finding that it lacked jurisdiction. The court found no error of law in the Tribunal's determination that the application for review was lodged outside the statutory time limit.
The primary legal issue before the court was whether the Tribunal had erred in law by finding that it lacked jurisdiction to review the delegate's decision. This turned on whether the applicant's application for review had been lodged within the prescribed time limit, as stipulated by section 412(1)(b) of the *Migration Act 1958* (Cth) and regulation 4.31 of the *Migration Regulations 1994* (Cth).
The Tribunal reasoned that the applicant was notified of the delegate's decision on 10 November 2016, and pursuant to section 494C of the Act, was taken to have been notified on that date. This meant the 28-day period for lodging a review application expired on 8 December 2016. As the application was received by the Tribunal on 9 December 2016, it was out of time, and the Tribunal therefore lacked jurisdiction. The applicant's migration agent contended that an electronic lodgement attempt was made on 7 December 2016, but due to IT system failures, the application was not successfully uploaded until 9 December 2016. The Tribunal had regard to this explanation but noted that the IT work was undertaken two weeks after the alleged problems were identified and that the agent's explanation did not overcome the statutory notification date.
The court ultimately dismissed the application for judicial review, upholding the Tribunal's finding that it lacked jurisdiction. The court found no error of law in the Tribunal's determination that the application for review was lodged outside the statutory time limit.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Because of its brevity, it is appropriate to set out the Tribunal’s decision in full (CB 203):STATEMENT OF DECISIONS AND REASONSAPPLICATION FOR REVIEW1) An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 10 November 2016, 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 9 December 2016. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation. 2) Pursuant to s. 412(1)(b) of the Act and r.4.31 of the Migration Regulations 1994, an application for review of this decision had to be made within 28 days after the applicant was notified of the decision in accordance with the statutory requirements. 3) The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 10 November 2016 and dispatched via email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. 4) On 3 January 2017, the Tribunal wrote to the applicant through her migration agent indicating that in the view of the Tribunal, the application is not a valid application as it was not lodged within the relevant time period. The applicant’s migration agent responded on 13 January 2-17 indicating that documents she attempted to lodge on 7 December 2016 were not done so because of IT failures in her IT system. The agent included a Tax Invoice from CompeteriT dated 23 December 2016. The Tribunal has had regard to the information provided and notes that the IT work undertaken two weeks after the problems were identified. 5) The Tribunal finds that in accordance with the s.494C of the Act, the applicant is taken to have been notified of the decision on 10 November 2016. Therefore the prescribed period within which the review application could be made ended on 8 December 2016. As the application for review was not received by the Tribunal until 9 December 2016 it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction. DECISION6) The Tribunal does not have jurisdiction in this matter. In support of the Application to this Court, the Applicant’s Migration Agent, Ms Ramos, filed an affidavit on 12th July 2017. Again because it was relied upon so heavily by the Applicant in the extension of time Application (noting also that Ms Ramos was available for cross-examination, but was not required) it is as well to set out her affidavit in full with the exception of its formal parts and the last paragraph (para. 18):1) That on the 16th March 2015, the visa applicant who is known as [the Applicant] came to my office for professional advice. We agreed to proceed with an application for Protection Visa subclass 866.2) [The Applicant] had applied for a Protection Visa sub class 866 and her visa application had been refused on 10th November 2016.3) I advised [the Applicant] to seek the review of the decision to refuse her visa application. Also I did advised her that the time for lodgement of the application for review will be 28 days from the day 10 November 2016; we agreed to lodge the application close to the 28 day in order to have more time to prepare the further documentation.4) On late evening 7th December 2016 I filled the form for an Application for Review at the AAT Refugee section, on line and when the details of the application had been entered on the system, I then pressed the button which is known as 'enter' and the system indicated that the application had been lodged. In my opinion, the application for the review of the decision had been lodged electronically within the prescribed period of time.5) Unfortunately I did not realise that our system failed and all work done online were not uploaded, on that day we were unaware about the failure until a client called us on the 9th December telling that she had not received some documents that she expected on the 7th.6) In relation to the acknowledgement letter from the A A Tribunal, sometimes the Tribunal takes more than two ds [sic: “days”] to send the acknowledge letter to the applicant/advisor. When I did not receive it on the 8 of December, I though sometimes it takes a couple of days more.7) After we did received a phone call from our client telling that documents were not lodged on the date 9th December 2016, I started to check all work sent on that date and we realise that [the Applicant’s] application for review at the AAT was not uploaded online, so immediately on the 9th I filled the application online again and lodged it.8) Then our system was on and off until we call the IT technician, he confirms that our system was having some technical problems among the computers, scanner/print and the internet; that was why sometimes the system works sending documents and sometimes did not. We were suggested to replace some devices.9) Our technician works based on his schedule, first he did order new equipment, the new machine came in the office around after middle of December and then the Technician came in to our office to install and works, so the job was done by 23 December 2016, according to his schedule of activities.10) On 12th December 2016, we received a letter from the AAT- acknowledge letter and also a little explanation that “Please note the validity of your application has not yet been assessed. We can only review a decision if a valid application for review has been made. You will be advised if it appears that your application may not be valid.”11) On the 3rd of January 2017, we received a letter from the AAT- Invitation to Comment on Validity of application for review – [the Applicant].12) On 13th January 2017, I did response to the invitation to comment on validity of application for review – [the Applicant]; also I did enclose evidence such as the Tax Invoice from the technician and evidence payment for work done in our office.13) I did write a letter to the Hon. Tribunal Member in charge, to allow this application to proceed for the benefit of [the Applicant]. Allowing [the Applicant] the opportunity for her case to be reviewed at the AAT.14) Personally I felt bad with the review application of [the Applicant] a widowed woman from Ghana, her case needs to have the opportunity to be heard. In my professional life as a Migration Agent this is my first time that I failed one of my clients. Unfortunately, I didn't realise that this error had happened, until the 9th of December. 15) On 25th January 2017, we received a letter from the AAT -Notification of Decision – [the Applicant] – “the decision was the Tribunal does not have jurisdiction in this matter.”The Hon. Tribunal Member did a summary of the case including the following statement “The agent included a Tax Invoice from CompeterIT dated 23 December 2016. Tribunal has had regard to the information provided and notes that the IT work undertaken two weeks after the problems were identified”. I did call to the Tribunal, completely devastated, I spoke with Robert Cook seeking for advice and he did give some advice for further procedure including court application.16) That is the truth how the events were occurred and the time that the technician took to complete his work in our office, which was exactly from the 12th December to 23rd December 2016, from the day when he did come into the office to test the equipment, then the waiting period from the Office Work to deliver the Brother Machine into the office and other devices that were necessary to complete that task.17) On January 2017 I was sick from my spine and waiting for a back surgery at my spine, the hospital admitted me on 4th of February 2017 I was in hospital for 7 days, then I wasn't able to work for what I did ask to my assistance to be in contact with referred Migration Lawyer to assist in the case of [the Applicant]. Unfortunately a Migration Lawyer said yes to represent [the Applicant] but then a couple of week later he said that he will not take the case, then I was in contact with a second Migration Lawyer who still that he will represent to [the Applicant] but he took so much time and he did not lodge the application to the Court.
Ratio Decidendi
Legal Principle Established
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