BET16 v MIBP
[2016] FCCA 3165
•14 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BET16 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3165 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – where facsimile of review application failed to transmit – “authorised officer” – whether the Tribunal had jurisdiction to review the delegate’s decision – no jurisdiction to review decision – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 66(1), 411(1), 412, 414, 494B Migration Regulations 1994 (Cth), regs.2.16(3), 4.31(1) |
| Cases cited: Fernando v Minister for Immigration & Multicultural Affairs (2000) 97 FCR 407 |
| Applicant: | BET16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 224 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 28 September & 5 December 2016 |
| Date of Last Submission: | 5 December 2016 |
| Delivered at: | Sydney and by video-link to Perth and Yonga Hill Immigration Detention Centre |
| Delivered on: | 14 December 2016 |
REPRESENTATION
| The applicant appeared in person by way of videolink. |
| Counsel for the First Respondent: | Mr P Macliver |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 224 of 2016
| BET16 |
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 who arrived in Australia on 23 March 2009 as the holder of a student visa. He became an unlawful non-citizen on 28 April 2015 and was taken into immigration detention on 8 December 2015, having served a prison sentence for unlicensed driving and “reckless conduct endangerment cause serious injury”.
On 18 December 2015 the applicant applied for a protection visa on the basis that he claimed to fear harm from his family and community in India because of his imprisonment and conduct in Australia.
On 15 February 2016 a delegate of the Minister decided to refuse to grant the applicant a protection visa. A letter setting out the decision and the reasons for it was handed to the applicant by hand by an officer of the Department.
On 23 February 2016, the applicant asked an officer of Serco[1] to send by facsimile an application for review to the Administrative Appeals Tribunal. There were three attempts made that afternoon to fax the document, but none were successful. The applicant eventually lodged an application with the Tribunal on 11 March 2016.
[1] The company responsible for the management of immigration detention facilities in Australia.
On 13 April 2016 the Tribunal made a decision that it did not have jurisdiction to review the delegate’s decision because the application for review had been lodged out of time.
Consideration
The issue before the Court is whether the Tribunal had jurisdiction. More specifically, the questions are whether the application for review was lodged within time; and whether the time for lodging was affected by the conduct of the Serco officer to whom the applicant gave the application for review.
The critical provision for the purposes of these proceedings is s.414(1) of the Migration Act 1958 (Cth). That section provides that “if a valid application is made under s.412 for review of a Part 7-reviewable decision” the Tribunal must review the decision. A “Part 7-reviewable decision” is defined by s.411(1) and includes, subject to irrelevant exceptions, a decision to refuse to grant a protection visa. The decision of the delegate in this case was a “Part 7-reviewable decision”.
The corollary of this provision is that if there was no valid application made under s.412 of the Act the Tribunal had no duty, and indeed no power, to review the decision of the delegate: s.414(2).
Sub-section 412(1)(b) of the Act provides that an application for review of a Part 7-reviewable decision must be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after notification of the decision. Regulation 4.31(1) of the Migration Regulations 1994 (Cth) provides that if an applicant is in immigration detention on the day the applicant is notified of a Part 7-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 seven working days commencing on the day the applicant is notified of the decision.
Section 66(1) of the Act relevantly provides that when the Minister grants, or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way. Regulation 2.16(3) of the Regulations provides for the purposes of s.66(1) that the Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in s.494B of the Act.
One of the methods specified in s.494B of the Act consists of the Minister (including by way of an authorised officer) handing the document to the recipient. An authorised officer means an officer authorised in writing by the Minister, the Secretary or the Australian Border Force Commissioner for the purposes of the relevant provision of the Act: s.5.
On 30 June 2015, the Minister signed a document authorising officers of the level of APS4[2], APS5 and APS6 and Executive 1 and 2 in the Public Risk Assessment Branch of the Department (PRAB) for the purposes of s.494B. The delegate’s decision was handed to the applicant by an officer who was an APS5 in the PRAB, that is, by an authorised officer, and so the letter was given to the applicant by the method prescribed by s.494B(2) of the Act.
[2] Australian Public Service.
The consequence of that is that the application for review had to be given to the Tribunal by 23 February 2016. As noted above, the application was not given to the Tribunal until 11 March 2016 and so it was made outside the time prescribed by the Act and the Tribunal had no jurisdiction to review the delegate’s decision: ss.412 and 414.
The remaining issue is whether that conclusion is affected by the conduct of the Serco officer.
The Tribunal gave the applicant the opportunity to address the question whether there was jurisdiction to review the delegate’s decision. The Tribunal summarised the applicant’ s response as follows:
[6]…
·The applicant claims that the due date for submission of the application was 24 February 2016. He claims he filled in the forms and handed them to someone in SERCO. He claims he was thereafter given a transmission report which he claims “…suggesting the documents were passed on to the Tribunal (Copy of transmission attached).”;
·The applicant claims he informed his case manager on 24 February 2016 that the documents had been faxed and she said she will follow them up;
·The applicant writes that on 10 March [2016] he was informed by the case manager that no documents (application for review) had been received by the Tribunal;
·The applicant writes that he called the Tribunal and spoke with a “Mr david” (sic) who confirmed transmission attempts were made on 23rd and 24th according to the Tribunal’s incoming transmission records. The applicant claims this corresponds with the outgoing transmission records provided to the applicant by SERCO. He writes that the Tribunal only received blank pages and that this does occur. He writes that he was advised to resubmit his appeal together with a statement of clarification and request that consideration be given to accepting his application;
·The applicant writes that he is detained in Yongah Hill immigration detention centre and that he relies on SERCO officers for administrative procedures. He writes that he has been let down. He writes that he requests the Tribunal accept the application for review which he claims is a matter of life or death for him.
[7]Attached to the response to the natural justice letter is a Fax transmission report (TX Result Report). At the top of this report there is a table which is reproduced below:
Addressee
Start Time
Time
Prints
Result
Note
00386005801
02-23 14:30
00:01:57
000/042
Cont
00386005801
02-23 14:46
00:01:56
000/042
Cont
00386005801
02-23 16:04
00:01:56
000/042
NG
[8]Explanatory notes located immediately below the above table on the TX Result Report provide guidance as to the meaning of the entries in the Result column. In particular, ‘Cont’ is shown to mean Continue, and ‘NG’ is shown to mean Other Error.
(Emphasis in original)
In his evidence in these proceedings, the applicant says:
…
23rd february (one day before deadline) i gave my document to SERCO officer responsible for faxing documents.
He asked me to come back two hours. I went back after two hours he told me that documents been faxed but for transmission report come back later. I asked him to keep the documents so that if there is any problem then try again. I went to check again same day but the officer booth was closed for the day.
24th february i had an appointment on that day with my case manager. I went to check my fax. The officer there gave me the documents and the transmission report and told me that documents been faxed.
…
(Errors and emphasis in original)
The only transmission record in evidence is the one set out in the Tribunal’s reasons. It shows that there were three attempts to fax a 42 page document on 23 February 2016; one at 14:30, the second at 14:46 and the third at 16:04. The record of “Prints” shows that none of these attempts was successful. Although it is not clear what “Cont.” or “Continue” means, the legend of results includes “OK” which is said to mean “Communication OK”. I infer from the absence of “OK” from the table of results that there was no successful communication with the receiving facsimile.
The applicant sent this transmission record to the Tribunal on 31 March 2016 saying that it suggested “the documents were passed onto the tribunal”.
I infer from this fact that this transmission sheet was given to the applicant on either 23 or 24 February 2016 and, given his submission to the Tribunal that it suggested that the fax had been sent, that the applicant inferred from it that the documents had been sent. The applicant was wrong about that. From that I also conclude that the applicant drew that inference himself and was not told by any Serco officer that the document had been sent. Rather, it is likely that he was told at around 2:30pm (14:30) on 23 February 2016 that the officer would try again in another 2 hours. This is what happened, but again, the attempt was unsuccessful.
In these circumstances, the applicant was left in the same position as an applicant whose migration agent, charged with lodging an application, for one reason or another, fails to do so within the required time. The result is that the application was out of time and, even if that is harsh and significant injustice arises, the statutory provision and the limit of scope of judicial review allows no interference.
In Fernando v Minister for Immigration & Multicultural Affairs (2000) 97 FCR 407 (“Fernando”) Heerey J said at [31] in relation to the Migration Act:
… ss 412 and 414 clearly stipulate that the making of an application within the prescribed time is an essential preliminary to the exercise of the RRT’s function.
…
See, to a similar effect, Finkelstein J at [44]ff.
Fernando was not the first decision of the Federal Court to this effect (see the cases referred to in the passage of the primary judge’s reason set out at [17]) and has been applied consistently since: VEAN v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 570; [2003] FCAFC 311 at [33]; SZJMY v Minister for Immigration & Citizenship [2008] FCA 708 at [9]-[10]; SZQVV v Minister for Immigration & Citizenship [2012] FCA 1471 at [10]; SZULH v Minister for Immigration & Border Protection [2015] FCA 835; SZEBS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 456 at [11]; SZCGQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 945 at [7].
The outcome is the same regardless of whether the late application was caused by the applicant or an agent: SZRHA v Minister for Immigration & Citizenship [2013] FCA 531 (special leave refused). In light of that, my conclusion as to what the applicant was told by the officer of Serco is not critical to the outcome of these proceedings. The undisputed fact is that the application for review was not given to the Tribunal until after the time allowed by the legislation had expired. As a result, the Tribunal had no jurisdiction to review the delegate’s decision and this application must be dismissed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 14 December 2016
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