AZAFN v Minister for Immigration - [2015] FCCA 2498

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZAFN v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2498

Catchwords:
MIGRATION – Application for judicial review of decision of the Refugee Review Tribunal – application filed with Tribunal out of time – decision of Ministerial Delegate forward to applicant by pre-paid post to address designated in her application for a protection visa – letter returned unclaimed – application made to RRT more than 28 days after decision despatched – Tribunal determined it had no jurisdiction – deeming provisions contained in Migration Act 1958 – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.412; 474; 476; 494

Migration Regulations 1994, r.4.31(2)

Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Craig v South Australia (1995) 184 CLR 163
Sainju v Minister for Immigration & Citizenship (2010) 185 FCR 86
Tay v Minister for Immigration & Citizenship (2010) 183 FCR 163
Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172
SZRLH v Minister for Immigration & Citizenship [2013] FCA 384

Applicant:

AZAFN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

ADG 390 of 2014

Judgment of:

Judge Brown

Hearing date:

28 August 2015

Date of Last Submission:

28 August 2015

Delivered at:

Adelaide

Delivered on:

18 September 2015

REPRESENTATION

Counsel for the Applicant:

In person

Solicitors for the Applicant:

Not applicable

Counsel for the First Respondent:

Mr Tredrea

Solicitors for the First Respondent:

Sparke Helmore

Solicitors for the Second Respondent:

Submitting Appearance

ORDERS

The application filed on 15 October 2014 be dismissed.
The name of the second respondent is amended to the Administrative Appeals Tribunal.
The applicant pay the costs of the application fixed in the sum of five thousand eight hundred dollars ($5,800.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 390 of 2014

AZAFN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

The applicant is a citizen of India. She first arrived in Australia on 23 November 2009, as the dependent of a student visa holder. On 23 July 2013, she applied for a protection (class XA) visa pursuant to the provisions of the Migration Act 1958 (Cth) (“the Migration Act”).
On 1 August 2013, the applicant completed a pro forma document headed “application for an applicant who wishes to submit their own claims for protection”. In this document, she claimed to be at risk of suffering death, if she returned to India, because her parents-in-law had been opposed to her marriage and had threatened to kill her, if she ever left her spouse.
The form required the applicant to submit both a current residential and current postal address in Australia. The applicant provided an address in suburban Perth as being both her residential and postal address. On 23 August 2013, the Department of Immigration & Citizenship acknowledged receipt of the relevant visa application by means of a letter, which was sent to the applicant at her postal address.
On 16 April 2014, the applicant was invited to attend an interview, with a departmental officer, to discuss her claims for protection. The applicant did not respond to this invitation. The invitation letter was sent to the address provided by the applicant.
On 21 May 2014, a delegate of the Minster for Immigration & Border Protection refused to grant the applicant the visa in question because she was not satisfied that the applicant was a person in respect of whom Australia owed protection obligations pursuant to section 36 of the Migration Act 1958. Again the relevant decision was sent to the address provided by the applicant.
The envelope containing this decision was returned to its sender on 12 June 2014 endorsed with a sticker indicating that the addressee had left the address or was unknown there.[1] On 23 July 2014, the applicant applied for a review of the delegate’s decision, earlier made on 21 May 2014, in the Refugee Review Tribunal (as the Administrative Appeals Tribunal was formerly known).
[1] See casebook at page 60
On 1 August 2014, a Tribunal officer wrote to the applicant, in the following terms:
“I am of the view that your application is not a valid application as it was not lodged within the relevant time limit. The time limit is 28 days from the day on which you are taken to have been notified of the primary decision. The primary decision was posted to you on 21 May 2014 and, on that basis, 4 June 2014 was the date on which you are taken to have been notified. The last day for lodging the application for review was 27 June 2014. As the application was not received until 22 July 2014, it appears to be out of time. However, this is a matter which must be determined by a Tribunal member.”[2]
[2] Ibid at page 71
The applicant was invited to comment on this letter. She did so in correspondence, directed to the Tribunal, dated 28 August 2014. She advised that she had not received the letter containing the delegate’s decision. Rather, the decision had come to her notice, when she had personally attended at the offices of the department to inquire as to the status of her application. At this stage, she was informed that her application had been unsuccessful.
In this context, the applicant’s submitted that the department “should have called or sent [her] an email asking the reason [given that she had not attended the departmental interview].” As such, the applicant claimed, with some justification, she had not had the opportunity to put her case personally to the Department. In this context, she pointed to the fact that she had applied for administrative review as soon as the refusal decision had come to her personal notice.
On 8 September 2014, the Tribunal determined that it did not have any jurisdiction to review the determination relevant to the applicant. In support of this decision, the Tribunal provided the following reasons:
“Pursuant to s.412(1) of the Act and r.5.31 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.
The material before the Tribunal indicates that the applicant was notified of the decisions by letter dated 25 May 2014 and dispatched by post. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 4 June 2014. Therefore the prescribed period within which the review application could be made ended on 22 July 2014. As the application for review was not received by the Tribunal until 22 July 2014 it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.”[3]
[3] See court book at page 75

The current application

In her application filed on 15 October 2014, the applicant seeks that the decision of the Migration Review Tribunal, made on 8 September 2014, be quashed. The grounds of her application are as follows:
“MRT refused by review application stating that it was invalid and tribunal does not have jurisdiction in this matter. Tribunal stated in in pursuant to s.412(1)(b) of the act and r.4.31 of the migration regulations 1994, an application had to be made within 28 days after the applicant was notified of the decision in accordance with the statutory requirements. Tribunal gave me a chance to response. I clearly stated to them that I had not received any letter and I was informed about this by immigration on 27/06/2014 and on basis of that I applied on 22/07/2014 that is within 28 days time. Tribunal failed to understand meaning of s.421(1)b) and r.4.31. Migration regulation and law is drafted in a way that It serves purpose of immigration and help applicant giving him a fair go. When the post is being sent by immigration and due to some mistake of post applicant did not get it then how come applicant is deemed to receive it. This is totally unfair and against ethos of Australian community. I need a fair go and want this section and regulation to be changed appropriately. Tribunal made a wrong decision by taking section and regulation by its literal meaning and not considering fact of Applicant.”
In addition, the applicant seeks an extension of time, pursuant to section 477 of the Migration Act 1958 in which to bring her application. Pursuant to the section, any application to this court, in relation to a migration decision, must be made to the court within 35 days of the decision being made.
In her application, the applicant contends that she was unaware of this time limit, particularly as she has not been provided with any legal advice to date.

The Minister’s position

The Minister opposes the granting of any extension of time to the applicant pursuant to section 477. More significantly, the Minister contends that there is no jurisdictional error arising from the Refugee Review Tribunal’s decision. Essentially, the Minister contends that the Tribunal correctly applied the deeming provisions relevant to the provision of the delegate’s decision to the applicant at the postal address provided by her in the original visa application.

The legal principles applicable

Part VIII of the Migration Act 1958, deals with judicial review of what are termed migration decisions. The expression migration decision includes what is termed a privative clause decision.This latter expression, pursuant to section 474, means any decision of an administrative character made under the Migration Act 1958.
Pursuant to section 476(1), this court has the same original jurisdiction, as does the High Court, in migration decisions.
Pursuant to paragraph 75(v) of the Constitution, the High Court has authority to grant prerogative writs against any officer of the Commonwealth. Accordingly, in migration decisions, this court has authority to quash the decision of the Refugee Review Tribunal by way of a writ of certiorari, which is what, in effect, the applicant seeks.
However, pursuant to section 476(2), the Federal Circuit Court has no jurisdiction in respect of privative clause decisions. Pursuant to section 474, privative clauses are deemed to be final and conclusive and as such, must not be challenged or reviewed in any court or subject to writs of certiorari or mandamus.
Accordingly, the decision in question, in these proceedings, being a migration decision is also a privative clause decision. As such, the court does not have jurisdiction to re-hear the matter, as a consequence of the provisions contained in section 474 of the Act.
However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by Tribunals, which are affected by jurisdictional error or have been made in bad faith.[4]
[4] See Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476
In general terms, an administrative Tribunal exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[5]
[5] See Craig v South Australia (1995) 184 CLR 163

The deeming provisions

The relevant jurisdiction, conferred upon Refugee Review Tribunal, to review ministerial decisions arises under Part 7 of the Migration Act 1958 and the various divisions, which it contains. Division 2 creates various decisions, which are characterised as being reviewable by the RRT, one of which is a decision to refuse to grant a protection visa. Division 3 provides the mechanics for how decisions, which are classified as reviewable, are to be conducted.
Section 412 provides a number of pre-conditions, which must be satisfied in respect of any application for review. These include the form to be utilised; the payment of any prescribed fee; and germane in the present case, that the relevant application has been made within the period prescribed which is a “period not later than 28 days after the notification of the decision”.
Regulation 4.31(2)of the Migration Regulations 1994 provides as follows:
“(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 an RRT-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.”
The Tribunal found that the applicant was notified of the decision of the Minister’s delegate not to grant her the protection visa in question by the letter of 25 May 2014, which was despatched by post. This was a RRT-reviewable decision. As such any application to the RRT had to lodged within 28 days.
As the application in question was lodged with the Refugee Review Tribunal on 22 July 2014, the Tribunal found it was out of time. The next issue therefore is when the applicant is taken to have been notified of the decision conveyed to her postal address.
Section 494B of the Act provides an inclusive list of methods by which the Minister is to give a document to a person. In particular, section 494B(4)(a) & (b) authorises the Minister to date and despatch a document, within 3 working day of the date of the document concerned by “prepaid post or other prepaid means”.
Germane to the present matter, pursuant to section 494B(4)(c)(ii) the above method is engaged in respect of correspondence forwarded to:
“the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents.”
The Tribunal found that the applicant had been notified of the relevant decision, when the Minister’s letter had been conveyed to her designated address for service, provided by her in her application form, by means of pre-paid post, notwithstanding her protestation that she had not in fact received the letter.
Section 494C provides circumstances in which it is deemed that a person has received a document, including by prepaid post. Relevantly section 494C(4)(a) provides as follows:
“(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”
In all the circumstances of the case, the finding made by the Tribunal that the applicant in this matter was to be taken to have received the decision of the ministerial delegate on 4 June 2014 and therefore any application to review that decision needed to have been filed by 2 July 2014 was clearly the only the decision which was available to the RRT.
Accordingly, its decision that it had no jurisdiction to entertain the application in question cannot be regarded as being vitiated by any error of jurisdiction. In my view, the Tribunal correctly applied the provisions of section 412(1)(b) of the Act.
Jacobson J considered the application of analogous deeming provisions, created by regulations made under the Act, in Sainju v Minister for Immigration & Citizenship.[6]He said as follows:
[6] Sainju v Minister for Immigration & Citizenship (2010) 185 FCR 86 at [51] – [53] [55] –[56] & [58]
“What seems to me to be decisive is that each of the deeming provisions focuses upon the physical act of the Minister in giving the document to the person, rather than whether the document is actually received.
The underlying assumption in each of the deeming provisions is that the act taken by the Minister is sufficient to bring the document to the attention of the person, regardless of whether this has actually occurred.
Thus, when a document is handed to the person, it is assumed that the person will open the envelope and read it, regardless of whether he or she actually does. Also, when a document is handed to another person at the addressee’s residence or place of business, it is assumed that the other person will give it to the named person. So too, it is assumed that the postal system will work in the ordinary way and that the addressee will receive the document within the time stated.
…
It may be that in an unusual case there will be unfairness because the assumption which underlies the deeming provision is not fulfilled. The other person may not hand the document to the addressee, the postal system may produce inordinate delay or the email may be lost for a period of time in cyberspace. Perhaps the document will never find its way to the addressee.
But the authorities dealing with deeming provisions in relation to non-electronic communications make it clear that the effect of those provisions is not to create a rebuttable presumption of fact. They are not to be read as if they were subject to a proviso that the person is not taken to have received the document if the contrary is proved.
…
The purpose of provisions such as these is to achieve administrative certainty as to whether a document has been given to a person, and as to the time at which this has occurred. It affects time limits for review of administrative decisions and may, in some instances, foreclose that possibility. (citations removed)
Accordingly, I am satisfied that it was not an integer of the MRT’s jurisdictional function that it was required to consider whether the applicant had actually personally received the decision in question, after it had been transmitted by prepaid post to her nominated address, and thereafter had been afforded an opportunity to consider it and respond to it, as she considered appropriate.
As Jacobson J held, the focus of section 494C is on the actions of the Minister in conveying a decision, not on the actions of the designated recipient of the decision in question. The section assumes that the document has been received and considered, if the conditions attached to its delivery have been met.
The aim of such deeming provisions is on the provision of administrative certainty. The Minister, as a consequence of section 494A, is entitled to convey a document by the method which the Minister considers appropriate.
Section 494C is part of a statutory scheme to provide a regime for the clear determination of when the receipt of specified documents relating to migration decisions occurs, whether the means of delivery is, as here, by prepaid post; or by hand; or by electronic means.
The Full Court of the Federal Court took a similar view in Tay v Minister for Immigration & Citizenship.[7] This case was concerned with section 494C(5), the deeming provision applicable to the dispatch of documents by electronic means. In Tay the Full Court was expressly called upon to consider the validity of an earlier decision Xie v Minister for Immigration & Multicultural & Indigenous Affairs,[8] which dealt with section 494C(4).
[7] Tay v Minister for Immigration & Citizenship (2010) 183 FCR 163
[8] Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172
This section is the same provision applicable in these proceedings. It deals with the provision of documents by prepaid post and when such documents are deemed to have been received. In Xie Spender J indicated that there was nothing in section 494C(4) to indicate that its operation was subject by any implied condition in terms of until the contrary is proved.

In Tay, the Full Court said as follows:
“…we have concluded that the decision in Xie is not wrong nor does it produce unintended or irrational consequences. The construction of s 494C(4) in Xie and the consequent rigidity of time limits imposed on applications for review may seem harsh but, as the explanatory material referred to below indicates, they result from the considered decision of the legislature as to an appropriate way to facilitate visa applications and to clarify when documents are received. In so far as is presently relevant, the provisions of s 494C(4) and s 494C(5) are identical and therefore the reasoning of the Full Court in Xie is equally applicable to both subsections.”[9]
[9] Ibid at [19]
The grounds of review, propounded by the applicant, centre on the harshness of the decision, from her perspective, which she characterises as not being in keeping with the Australian ethos of a fair go for everyone.
However, I consider that I am bound by the decision in Tay, the effect of which is to hold that section 494C(5) does not create a rebuttable presumption of fact. Rather the section makes very detailed provision for determining when a document is taken to have been received, by its designated recipient, from the Minister.
The sentiments of the applicant are understandable. However the RRT was bound to apply the provisions contained within section 494C of the Act and assume that the applicant had received the Minister’s decision on a date which could be calculated from the applicable regulations. The intent of the legislation to provide administrative certainty. As the Full Court said in Tay:
“Section 494C makes very detailed provision for determining when a document is taken (deemed) to have been received from the Minister. Those provisions must be construed in a statutory context of similarly detailed provisions concerning the methods by which the Minister may give documents to a person when this is a requirement (s494B) and when it is not required (s494A) and the identification of the authorised recipient of documents (s494D). The provisions all evidence concern that there should be certainty in the transfer of documents from the Minister both as to the method and as to the time of delivery …”
In his submissions, Mr Tredrea, counsel for the Minister relies on the comments of Robertson J in SZRLH v Minister for Immigration & Citizenship, which he submits are apposite to the present matter. In the case His Honour found, regrettable though such an outcome might appear, the “inexorable and inevitable result”, when an application for review was not lodged within the statutory time limit, was the failure of the application because the Tribunal’s jurisdiction had not been engaged.[10]
[10] SZRLH v Minister for Immigration & Citizenship [2013] FCA 384 at [24]
I agree with Mr Tredrea. In my view, the only conclusion which is open to the court is to dismiss the application, regardless of what sympathy may be arise for the applicant because, in her perception, she has not had a fair go.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate:

Date: 18 September 2015