BDU18 v Minister for Home Affairs

[2018] FCCA 2521

FEDERAL CIRCUIT COURT OF AUSTRALIA

BDU18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2521

Catchwords:
MIGRATION – Protection visa – Administrative Appeals Tribunal – where tribunal did not have jurisdiction to hear the application – where applicant claims to not have received the delegate’s decision – whether the applicant was properly notified of the delegate’s decision – whether tribunal gave sufficient weight to evidence – no error established – dismissed with costs.

Legislation:

Migration Act 1958 (Cth), ss.66, 412, 494C, 494B, 476

Migration Regulations1994 (Cth), regs.2.16, 4.31

Cases cited:

Murphy v Minister of Immigration [2004] FCA 657; (2004) 135 FCR 550
Singh v Minister for Immigration [2016] FCCA 549
Xie v Minister for Immigration [2005] FCAFC 172

Applicant: BDU18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMNISTRATIVE APPEALS TRIBUNAL

File Number: SYG 638 of 2018

Judgment of: Judge Baird

Hearing date: 4 September 2018

Date of Last Submission: 4 September 2018

Delivered at: Sydney

Delivered on: 4 September 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Ms C Saunders of DLA Piper

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 638 of 2018

BDU18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore, Revised from Transcript)

1. This is an application seeking judicial review pursuant to s.476 of the Migration Act 1958 (Cth) of a decision of the Administrative Appeals Tribunal dated 22 February 2018.  The Tribunal found that it did not have jurisdiction to review a decision made by a Delegate of the First Respondent, the Minister for Home Affairs, made on 26 July 2017 to refuse to grant the Applicant a temporary protection (subclass 785) Visa.

2. The Applicant had lodged his review application with the Tribunal on 24 January 2018, significantly outside the prescribed 28 day limit within which to seek review of the Delegate’s decision.  The Tribunal has no power to extend time.  It has no jurisdiction where the Delegate’s decision was communicated to the Applicant in compliance with the legislative and regulatory regime.

   The Applicant submits that a friend of his told the Department of Immigration and Border Protection before the Delegate issued his decision that the Applicant had changed address.  Therefore, the decision was mailed to the wrong address.  The Applicant has provided no evidence to support that claim. 

Background

1. The Applicant is a male citizen of Sri Lanka, born in 1974.  He arrived in Australia on 4 March 2011 as an unauthorised maritime arrival.  He attended an entry interview on 10 March 2011.  In the subsequent two years the Applicant was processed and made submissions in accordance with the legislative regime at the time for grant of protection visas. 

2. On 10 December 2015, the Applicant lodged an application for the Visa.  That application is the subject of the current review.  In that application, the Applicant nominated an address in Toongabbie as his address for service.  I have redacted the precise details of his address in these reasons and will indicate his addresses more generally by the suburbs he nominated from time to time. 

3. According to the Department records which were in evidence before the Tribunal and are in evidence in this Court, on 9 November 2016 the Applicant advised the Department of a new address at Pendle Hill. 

4. The Applicant was invited to an interview before the Delegate on 22 May 2017 but the Applicant did not attend.  The Delegate’s decision reveals that the Department was unable to reach him by telephone or mail.  The Delegate proceeded to make the decision based on the Applicant’s previous claims, including the interview records and submissions.  As I have said, the Delegate refused the grant of the Visa on 26 July 2017.

5. The Department records show that the decision record and a notification letter dated 26 July 2017, were sent by the Department by registered post to the Pendle Hill address.  The decision record and notification letter were returned to the Department apparently unopened, and identified as unclaimed on 18 or 19 September 2017 (both dates are stamped on the document). 

6. The Department’s records of client contact details establish that on 18 October 2017 the Applicant, or it may be inferred somebody on the Applicant’s behalf, called the Department and informed it that the Applicant had changed his address on 11 October 2017.  That is, a week prior to the telephone call.  On the evidence before me the only record of updating of the Applicant’s address in 2017 is this record of the telephone call on 18 October 2017.

Proceeding before the Tribunal

1. The Applicant’s review application to the Tribunal, lodged 24 January 2018, was accompanied by a statutory declaration made 23 January 2018, and a letter dated 27 August 2012, from STARTTS, the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors.  The letter attested to the Applicant’s psychological and emotional distress because of his current settlement difficulty as at August 2012 (some 5½ years prior to his application to the Tribunal).

2. The Applicant’s application and statutory declaration set out reasons why he sought an extension of time to lodge what he described as the appeal of the TPV (temporary protection visa) decision of 26 July 2017 (the Delegate’s decision), relevantly: 

   [7] Since being allowed to reside in the community I have not remained at one address for long.

   [8] The Immigration department state in their decision that I was invited for an interview on 22/5/20I7 (page 4 of the delegate’s decision record) and that I was uncontactable. The reason I did not receive the department's invitation to attend the TPV interview was because I had moved to a different address.

   [9] On the 9th of January 2018 I contacted Immigration department regarding my bridging visa, it was at this point that I was informed that my application for a TPV was refused in July 2017.

   [10] I informed Immigration department that I did not receive the refusal notification and the negative decision record.

   [11]I was subsequently provided a copy or the delegate’s negative decision.

   [12]To the best of my knowledge sometime prior to 26 July 2017 (date of refusal) I remember contacting Immigration department notifying them that I had moved to a different address (i.e. my present address [Wentworthville]. The address change was communicated through a friend who provided my present address to the department via telephone.

   [13] I believe Immigration department failed to record my present address communicated through a friend which resulted in me not receiving the decision record.

   [14]I request the AAT to consider my circumstances and grant me an extension or time and accept my application for review or the delegate’s decision dated 26 July 2017.

3. He did not provide any documentary evidence, nor any statutory declaration from the unnamed friend who he alleged communicated his present address to the Department. 

4. On 30 January 2018, the Tribunal wrote to the Applicant, inviting him to comment on its preliminary view that the application was not a valid application as it was not lodged within the relevant time.  The Applicant’s migration agent at the time provided a response by email to the Tribunal on 1 February 2018.  The response email merely forwarded a copy of the statutory declaration and a copy of the STARTTS letter previously provided. 

5. The Tribunal made its decision on 22 February 2018, finding that it did not have jurisdiction. The Tribunal considered that the Department sent the Applicant a notice of the Delegate’s decision by way of letter, dated 26 July 2017, despatched by post to the Pendle Hill address on the same day. The Tribunal was satisfied that the content of the notice complied with the legislative requirements in accordance with s.494B(4) of the Act. The Tribunal therefore found that the Applicant was taken to have been notified of the Delegate’s decision on 4 August 2017, that is 7 working days after the date of the document. The application for review was not received by the Tribunal within the prescribed period of time which ended on 31 August 2017.

6. The Tribunal found that the application for review was not made in accordance with the relevant legislation and that it had no jurisdiction in this matter.  The Tribunal at [10] found that it did not have power to extend the prescribed period. 

7. The decision of the Tribunal in the present case is a privative clause decision as defined by s.474(2) of the Act.  The section operates to prevent judicial review of all decisions under the Act, except those vitiated by jurisdictional error. 

The application before this Court

1. Before me today, the Applicant appeared unrepresented, with the benefit of a Tamil interpreter.  I explained the costs consequences of an adverse decision to the Applicant, and he indicated that he wished to proceed. 

Grounds of review

1. When asked, he responded that he wished to press all three grounds set out in the application filed on 12 March 2018.  They are as follows (without alteration):

   Ground 1

   The decision is affected with legal error, as the AAT failed to consider that the delegate may not have properly notified the applicant of the outcome of his application for a protection visa within the required timeline

   Particulars

   ·Department file notes may need to be obtained to confirm if the applicant's friend in fact had informed the department that the applicant had changed addresses. This the Tribunal did not do.

   ·The AAT's inference that the applicant made a "vague assertion" is unreasonable as the applicant should have been considered as "vulnerable" due to the applicant having previously attended STARTTS counselling.

   ·The fact that the applicant is a former Torture and Trauma Survivor was not considered or given sufficient weight by the Tribunal.

   ·The STARTTS report identifies the applicant having had a traumatic past and having suffered from mental health issues".

   Ground 2

   The Tribunal failed to put the applicant on notice that if he had provided evidence that corroborates the claim that he lived at the Wentworthville address at the time of the delegate's decision a different decision may have been made by the Tribunal [9].

   ·The applicant was invited to comment only on the validity of his application for review.

   ·In this case an obligation arose to put the applicant on notice that evidence that corroborates his claim that he lived at Wentworthville address may be of assistance.

   Ground 3

   The Tribunal acted in a matter that was inconsistent and unreasonable

   ·The Tribunal states that it has no power to extend the time limit and that it has no jurisdiction to do so

   ·However the Tribunal states that "this case is whether the applicant was properly notified of the delegate's decision".

   ·The Tribunal invited the applicant to comment on the validity of his review application.

   ·However chose to not give weight to any of the applicant's responses and the fact that he was a Torture and Trauma survivor.

   ·Having invited the applicant to comment on the validity of the application it erred in not properly looking into the reason for not appealing on time

2. The Applicant has not provided any evidence in writing, or written submissions before me. 

3. In oral submissions, he has said to me that he moved address and he advised the Department through his friend, who phoned the Department.  When I asked him what evidence he had as to when his friend called the Department, he said he did not have any evidence now, but maybe he could provide evidence of phone bills and letters, which show that he had moved.

4. He accepted that the issue of when he informed the Department was an important issue.  He said that his friend informed the Department one week after he moved.  I did not give the Applicant further time to provide letters or phone bills.  I informed the Applicant that the question was not whether he had moved, but when he had informed the Department. 

Consideration

1. I turn now to consider each of the grounds, and in so doing also address the legislative regime.

Ground 1

1. The Applicant asserts that the Tribunal failed to consider that the Delegate may not have properly notified him of the refusal decision.  The evidence does not support that assertion.  The Applicant’s claim that he had notified the Department of his change of address to Wentworthville is contrary to the evidence before the Tribunal, which shows that he did not provide that address until 18 October 2017.

2. In determining whether the Tribunal had jurisdiction, the first issue for the Tribunal (and for this Court), is whether the notification of the Delegate’s decision is valid. Pursuant to s.66(1) of the Act, the Delegate’s decision must to be notified to the Applicant in the prescribed way. Regulation 2.16 of the Migration Regulations1994 (Cth) sets out the prescribed methods, and relevantly, reg.2.16(3) of the Regulations is applicable. That regulation requires that the Minister notify the Applicant of the decision by a method specified in s.494B of the Act.

3. On the evidence before me, the notification letter enclosing the Delegate’s decision was dispatched on 27 July 2017 by registered post. It was sent one business day after the date of the letter. I find that it was dispatched within 3 working days of the date of the letter as required under s.494B(4) of the Act.

4. Pursuant to s.66(2)(d) of the Act, the Delegate’s notification must specify whether the decision may be reviewed, the time limit on the application for review, who can apply for a review, and where the application for review can be made. I find that the notification letter dated 26 July 2017, under the headings, variously, “review rights”, “lodging an application for merits review online”, “registries of the Administrative Appeals Tribunal” and “your immigration status”, satisfied the requirements of s.66(2)(d) of the Act.

5. Further, in satisfaction of s.66(2)(a), the Delegate’s decision notification included a section which specified the criterion which the Applicant did not satisfy for the Visa in the following terms:

   This application was refused because you did not satisfy subsection 36(2) of the Migration Act 1958. That provision requires you to be a non-citizen in Australia in respect of whom Australia has protection obligations or a member of the same family unit as such a person.

   The attached decision record provides more detailed information about this decision and the applicant(s) it applies to.

6. As Ms Saunders for the Minister submits, the second issue for determination is when the Applicant was deemed to have received the notification of refusal of Visa letter. Pursuant to s.494C(4) of the Act, where a document is sent to an Applicant by prepaid post, the Applicant is taken to have received the document 7 workings days after the date of the document. That is, in the present case, the Applicant is deemed to have received the letter on 4 August 2017.

7. Justice Spender, in Murphy v Minister of Immigration [2004] FCA 657; (2004) 135 FCR 550 at [68]‑[69] considered the terms of s.494C and s.494B(4) of the Act. His Honour held that in the circumstances of that case, a person is taken to have received the document 7 working days after the date of document without qualification, and that there is nothing to indicate that the effect of the subsections is to be read as if there was a proviso that the person is not taken to have received the documents where the document has been returned undelivered. The Full Court of the Federal Court decision of Xie v Minister for Immigration [2005] FCAFC 172, and in this Court, the decision of Judge Emmett in Singh v Minister for Immigration [2016] FCCA 549 are to similar effect.

8. The third issue necessary to determine is by when the application to the Tribunal was required to be lodged. Pursuant to s.412 of the Act and reg.4.31 of the Regulations, in order to be validly lodged, an application must be lodged within 28 days, commencing on the date the Applicant was notified. It follows that the application to the Tribunal in the present case needed to be lodged by 31 August 2017. Self-evidently, it was not. I find that the Tribunal was correct to find that it did not have jurisdiction.

9. Particular 1 of ground 1 asserts that the Tribunal ought to have checked the Department files to determine whether the Applicant’s friend had informed the Department that the Applicant had changed the address.  Contrary to that particular, the Tribunal decision at [9] makes clear that the Tribunal did check the Department file, and that there was nothing in the Department record indicating that the Applicant informed it as he claimed.  The Tribunal stated: 

   [9]There is nothing in the Department records or any other evidence before me to indicate that the applicant or anyone on his behalf informed the Department at any time prior to 29 July 2017 that his contact address had changed to the Wentworthville address.

   It follows that particular 1 to ground 1 is not made out. 

10. The remaining particulars assert that the Tribunal ought to have considered that the Applicant was vulnerable when the Tribunal drew the inference that the Applicant’s assertion regarding his friend notifying the Department of the address change was vague, and alleged that proper weight was not given to the STARTS report.

11. It was open, and I so find, to the Tribunal to take into account the lack of detail provided by the Applicant when the Tribunal rejected the Applicant’s assertion.  There is nothing to support that such a finding was unreasonable.  The Tribunal did have regard to the STARTS report, but did not give it weight, noting that it was dated years before the Applicant applied for the Visa.  Ms Saunders submits, and I agree, that particulars 3 and 4 seek to engage the Court in impermissible merits review.

Ground 2

1. Ground 2 asserts that the Tribunal erred by failing to put the Applicant on notice that he was required to provide evidence to corroborate his claims regarding the date on which he notified the Department that he had changed his residential address.  The Tribunal invited the Applicant to comment by letter dated 30 January 2018.  In that letter, the Tribunal set out what it identified as the central issue before it as follows:   

   I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Temporary Protection (Class XD) visa.

   It appears that your application is not a valid application as it was not lodged within the relevant time limit. Pursuant to r.4.31(2) of the Migration Regulations 1994, the period in which an application for review of a Part 7-reviewable decision must be given to the Tribunal is 28 days, commencing on the day the applicant is notified of the decision. In DZAFH v Minister for Immigration [2017] FCCA 387, the Federal Circuit Court held that the prescribed period in r.4.31 commences on, and includes, the day the applicant is taken to have been notified of the decision: at [44] – [46].

   The primary decision was posted to you on 26 July 2017 meaning that 4 August 2017 was the date on which you are taken to have been notified. In accordance with DZAFH, the last day for lodging the application for review was 31 August 2017. As the application was not received until 24 January 2018, it appears to be out of time. However this is a matter which must be determined by a Member.

   If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 13 February 2018. Your application, with any comments you make, will then be referred to a Member to make a decision on your application. If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.

1. The Applicant was clearly aware from that letter that the address used by the Department was a central issue in his review, and indeed, the Applicant was aware of this before the date of the invitation from the Tribunal by what he set out in his statutory declaration (see particularly at [12] and [13] which I have already set out – see above at [10]).  The Applicant at this time (30 January 2018), was assisted by a migration agent, and it is a reasonable inference that the Applicant was aware of the need to provide evidence to support his claims if such evidence was available.  The Applicant has not identified what evidence he would have provided, nor has any evidence been provided to this Court.  I find that ground 2 is not made out. 

Ground 3

1. Ground 3 asserts that the Tribunal’s reasoning was inconsistent and unreasonable. 

2. The Tribunal found it did not have jurisdiction, as the application for review was lodged out of time. It was correct to find that it did not have jurisdiction for the reasons it gave. It was also correct to find that it did not have power to extend the prescribed time, as it found at [10]. Ms Saunders submits, and I accept, that ground 3 seeks to cavil with the merits of the Tribunal’s decision, and thus, seeks impermissible merits review. This ground must fail.

Conclusion

1. The Applicant has been unsuccessful in establishing any error that goes to the Tribunal’s jurisdiction.  The application should be dismissed with costs. 

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Baird

Associate: 

Date:  11 September 2018