BAS15 v Minister for Immigration

[2016] FCCA 932

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAS15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 932

Catchwords:
MIGRATION – Judicial review – Refugee Review Tribunal – protection visa –– application to Tribunal out of time – whether Tribunal had jurisdiction to hear application for review – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.66, 412, 494B, 494C

Migration Regulations1994 (Cth), regs.2.16, 4.31

Cases cited:

Singh v Minister for Immigration [2015] FCA 220; (2015) 231 FCR 573
SZRLH v Minister for Immigration & Citizenship [2013] FCA 384
SZULH v Minister for Immigration & Border Protection [2015] FCA 835

WZAVL v Minister for Immigration & Anor [2015] FCCA 2388

Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172
Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCATrans 221

Applicant: BAS15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 257 of 2015

Judgment of: Judge Antoni Lucev

Hearing date: 21 April 2016

Date of Last Submission: 21 April 2016

Delivered at: Perth

Delivered on: 21 April 2016

REPRESENTATION

For the Applicant: No appearance

Counsel for the First Respondent: Ms E Tattersall

For the Second Respondent: Submitting appearance, save as to costs

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. That the application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 257 of 2015

BAS15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore and later edited)

Introduction

1. By an application filed on 16 June 2015, the applicant seeks judicial review of a decision of the former Refugee Review Tribunal, now Administrative Appeals Tribunal (“Tribunal”) made on 21 May 2015. The applicant is a citizen of Malaysia. On 15 December 2014, a delegate of the first respondent, the Minister for Immigration and Border Protection (“the Minister”), refused to grant the applicant a Protection (Class XA) Visa (“the Visa”).

Factual background

1. On 20 April 2015, the applicant lodged an application for review to the Tribunal (“the Judicial Review Application”). On 23 April 2015, the Tribunal wrote to the applicant and advised that the Tribunal application was not valid, because it was not lodged within the relevant time limit. The Tribunal explained that the relevant limit for lodging the application was twenty-eight working days from the day the applicant was taken to have been notified of the Delegate’s Decision. The Tribunal invited the applicant to comment on whether a valid application was to be made in writing by the applicant.

2. The applicant did not reply to the Tribunal’s letter of 23 April 2015. The Tribunal subsequently made its decision, and the Tribunal found that the applicant was notified of the Delegate’s Decision by letter, dated 15 December 2014, which was dispatched by post, and was therefore taken to have been notified of the Delegate’s Decision by 24 December 2014, and was therefore required to lodge any application for review of the Delegate’s Decision with the Tribunal by 21 January 2015.

3. Relying on s.494C of the Migration Act1958 (Cth) (“Migration Act”), the Tribunal found that as the application for review of the Delegate’s Decision had not been received by the Tribunal until 20 April 2014, the application for review was not made within the time limit prescribed: see Migration Act, s.494C(4). The Tribunal therefore found and decided that it did not have jurisdiction in the matter.

Judicial Review Application

1. The applicant then lodged the Judicial Review Application in this Court on 16 June 2015. The applicant relies on the grounds set out in the originating application. There are three such grounds, as follows:

   1.Dispute of a “No Jurisdiction” decision handed down by the Refugee Review Tribunal on the 21^st of May 2015

   2.Applicant affirms that decision to refuse the grant of a Protection Class XA Visa was taken to have been received by the Department of Immigration and Border Protection on 18^th day of April 2015 and that a Administration error has incurred when handing down a decisiontio [sic] refuse a grant of a visa.

   3.Applicant lodged an application for a review of a decision to refuse the grant of a Protection Class XA visa with the Refugee Review Tribunal on the 20^th of April 2015 and within the prescribed time limit to lodge a review.

Consideration

1. Ground 1 is incompetent and cannot succeed. The ground is no more than an unparticularised assertion that the Tribunal made a mistake, and cannot disclose jurisdictional error: WZAVL v Minister for Immigration & Anor [2015] FCCA 2388 at [26] and the cases there referred to.

2. Grounds 1 and 2 are otherwise incompetent and evince no jurisdictional error.

3. Ground 3 alleges that the Tribunal application for review of the Delegate’s Decision was lodged within time, and therefore might arguably raise a question of jurisdictional error. Under s.66(1) of the Migration Act, the Minister is required to notify the applicant of a decision to refuse to grant a visa in the prescribed way. Regulation 2.16(3) of the Migration Regulations 1994 (Cth) (“Migration Regulations”) requires that the Minister notify the applicant by one of the methods specified in s.494B of the Migration Act. Section 494B of the Migration Act prescribes dispatch by prepaid post or by other prepaid means as a method by which the Minister gives documents to a person. The Minister in this case complied with that section by dispatching the document:

   a)within three working days of the date of the document. The Court Book (“CB”) 80 and 81 confirms that the notification was dispatched on 16 December 2014, being one working day after the date of the document;

   b)by prepaid post or by other prepaid means; and

   c)to the last address for service provided to the Minister by the recipient. In that regard, the document was dispatched to 28 Grand Paradiso Parade, Merriwa, which was listed as the current residential and postal address in the applicant’s Form B, which is at CB14, as well as the current address in the Form A he submitted on 12 November 2014: CB 44.

4. The Court further notes that:

   a)CB 80 and 81 indicate that the notification was dispatched by registered post; and

   b)the address to which it was dispatched remained the applicant’s address until at least June 2015, when the applicant filed an affidavit in support of the originating application in these proceedings.

5. Section 494C of the Migration Act deals with the circumstances in which a person is taken to have received a document. Section 412 of the Migration Act deals with an application for review of an RRT reviewable decision, and in particular the time in which that must be notified, and reg.4.31 of the Migration Regulations, gives procedural effect to the provisions of s.412 of the Migration Act. Sections 494C and 412 of the Migration Act and reg.4.31 of the Migration Regulations relevantly provide as follows:

   s.494C (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.

   …

   Document not given effectively

   (7)  If:

   (a) the Minister purports to give a document to a person in accordance with a method specified in section 494B (including in a case covered by section 494A) but makes an error in doing so; and

   (b)  the person nonetheless receives the document or a copy of it;

   then the person is taken to have received the document at the times mentioned in this section as if the Minister had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.

   s.412    (1)  An application for review of a Part 7-reviewable decision must:

   (a)  be made in the approved form; and

   (b)  be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and

   (c)  be accompanied by the prescribed fee (if any).

   …

   (4)  Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of Part 7-reviewable decisions (which may be decisions that relate to non-citizens in a specified place).

   reg.4.31  (1)   For the purposes of paragraph 412 (1) (b) of the Act, each period stated in subregulation (2) is prescribed as the period within which an application for review of an RRT‑reviewable decision to which the period applies must be given to the Tribunal.

   (2)   A period mentioned in subregulation (1) commences on the day on which the applicant is notified of the decision to which the application relates, and ends at the end of:

   (a)    in the case of an application given to the Tribunal by or for an applicant in immigration detention on that day — 7 working days (beginning with the first working day that occurs on or after that day); or

   (b)    in any other case — 28 days.

   (3)   Subject to this regulation, an application must be lodged at a registry of the Tribunal:

   (a)    by posting the application to that registry; or

   (b)    by leaving it at that registry in a box designated for the lodgment of such applications; or

      (c)    by leaving it with a person employed at that registry and authorised to receive such documents; or

   (d)    by means of electronic facsimile transmission to that registry.

   (4)   An application posted in accordance with paragraph (3) (a) or transmitted in accordance with paragraph (3) (d) is not to be taken to have been lodged until it is received at a registry of the Tribunal.

6. The effect of s.494C(4) of the Migration Act is that if the Minister gives a document to a person by post, the person is taken to have received the document seven working days after the date of the document. Section 494C of the Migration Act does not create a rebuttable presumption of fact and as such it is irrelevant as to whether or not a document is actually received: Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 (“Xie”) at [13], per Spender, Kiefel and Dowsett JJ. The High Court refused special leave in Xie v Minister for Immigration & Multicultural & Indigenous Affairs: [2006] HCATrans 221. The critical action is the transmission of the document, not its receipt: Singh v Minister for Immigration [2015] FCA 220; (2015) 231 FCR 573 at [27]-[35] per Perry J.

7. Accordingly, although the applicant on the face of the grounds seems to contend that she did not receive the notification until 18 April 2015 (noting that there is no evidence to that effect, notwithstanding that the applicant was afforded an opportunity to file further evidence by reason of the Registrar’s orders at the directions hearing) any delay in receipt is immaterial to the operation of s.494C(4) of the Migration Act: SZRLH v Minister for Immigration & Citizenship [2013] FCA 384, and SZULH v Minister for Immigration & Border Protection [2015] FCA 835 (“SZULH”).

8. Given that the applicant is taken to have been notified of the Delegate’s Decision on 24 December 2014, the application for review was required to be given to the Tribunal by 21 January 2015. Because the application for review was not lodged until 20 April 2015, it was out of time. In the Federal Court in SZULH at [17] Robertson J observed as follows:

   In Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324; (2000) 97 FCR 407, Heerey J at 31 construed section 412 as making plain that if an application is not made in accordance with section 412, the application is not a valid one and the Tribunal has no jurisdiction to review the primary decision under section 414. See also Finkelstein J at 44 and following and Dowsett J at 55. That view was affirmed by a Full Court in VEAN v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 311; 133 FCR 570 at 33 per Gray, Whitlam and Mansfield JJ. Fernando and VEAN have been applied in a number of decisions, for example SZJMY v Minister for Immigration and Citizenship [2008] FCA 708 at 9 and 10, per Flick J, and SZQVV v Minister for Immigration and Citizenship [2012] FCA 1471 at 10 per Flick J.

9. Accordingly, the Tribunal had no jurisdiction to review the Delegate’s Decision. There was, therefore, no jurisdictional error in the Tribunal’s Decision to dismiss the application to the Tribunal by the applicant. It follows that in the absence of the Tribunal having jurisdiction and the absence of jurisdictional error, this application to this court must be dismissed. And there will be a formal order accordingly.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate: 

Date:  3 May 2016