BIW15 v Minister for Immigration

[2016] FCCA 2551

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIW15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2551

Catchwords:
MIGRATION – Judicial review of a decision of the Refugee Review Tribunal (now known as the Administrative Appeals Tribunal).

Legislation:

Migration Act 1958 (Cth), ss.412, 414, 494B, 494C

Cases cited:
Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324
SZQVV v Minister for Immigration and Citizenship [2012] FCA 1471
SZULH v Minister for Immigration and Border Protection [2015] FCA 835

Applicant: BIW15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 643 of 2015

Judgment of: Judge Howard

Hearing date: 5 September 2016

Date of Last Submission: 5 September 2016

Delivered at: Brisbane

Delivered on: 5 September 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent:    Clayton Utz

ORDERS

1. That the application filed on 14 July 2015 be dismissed.

2. That the applicant pay the first respondent’s costs fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 643 of 2015

BIW15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

A.These reasons were delivered ex tempore on 5 September 2016 and have been settled and corrected for grammatical errors in order to convey the precise intention of the Court.

1. The applicant was born on 24 November 1991 in the People’s Republic of China and is a citizen of that country.  In fact the applicant was born in Fujian Province and lived in China until her departure in 2007.  The applicant travelled to Australia on 16 November 2007 and entered Australia as the holder of a school sector visa subclass 571.

2. The applicant’s first school sector visa ceased on 4 December 2007 and the applicant was then granted a second school sector visa.  The applicant travelled to China on 4 December 2009 and returned to Australia on 5 January 2010.  The applicant’s second school sector visa expired on 15 March 201, at which time a “bridging A” visa came into effect.  The applicant was then granted a student visa Subclass 572 on 6 April 2011.  That ceased in November 2012, at which point a further “bridging A” visa came into effect.  The applicant applied for a second 572 visa on 14 November 2012.  That was refused on 18 December 2012.  The applicant appealed the decision to the Migration Review Tribunal, who affirmed the decision.  The applicant then appealed the decision via ministerial intervention on 13 June 2014 and withdrew her submission in August 2014.

3. On 30 October 2013 the applicant was, in fact, granted a “bridging B” visa, however did not travel outside of Australia, so that the “bridging B” visa expired on 14 January 2014, at which point a “bridging A” visa came into effect.  The applicant applied for a protection visa on 1 September 2014 and was granted a “bridging C” visa in association with that application.  A delegate of the Minister reviewed the applicant’s application for a protection visa.  The delegate made a decision dated 30 March 2015.  That decision is contained in the court book. The court book will be exhibit 1 and is sometimes referred to in these reasons for judgment as “the bundle”.

4. The date of the decision of the delegate is contained at the end of the decision which is at page 74 of the bundle.  On the same date, 30 March 2015, the Minister forwarded to the applicant’s relevant agent, George Wang, a letter by registered post.  That letter is found at page 50 of the court book and it attached information, including details of her review rights, noting on page 1 of the attached letter/information, which is at page 51 of the bundle:

   “No further assessment of this visa application can be taken at this office. However, you are entitled to apply to the Refugee Review Tribunal (RRT) for a review of this decision. An application for review of this refusal decision must be given to the RRT within the prescribed timeframe. This timeframe commences on the day on which you are taken to have been notified of this decision and ends at the end of 28 days. 

   Please note that this review period is prescribed in law and an application for merits review may not be accepted after that date.

   As this letter was mailed to an Australian address from within Australia you are taken to have received it seven working days after the date of this letter.  A working day does not include weekends or public holidays in the Australian State or Territory to where this letter was posted.”

5. The legislation relating to the giving of documents relevantly provides as follows:-

   “494B Methods by which Minister gives documents to a person

   ……

   Dispatch by prepaid post or by other prepaid means

   (4) Another method consists of the Minister dating the document, and then dispatching it:

   (a)  within 3 working days (in the place of dispatch) of the date of the document; and

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

   (c) to:

   (i)  the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or

   (ii)  the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; or

   (iii) if the recipient is a minor--the last address for a carer of the minor that is known by the Minister.”

6. Sections 494B(4)(a), (b) and (c) of the Migration Act 1958 (“the Act”) provide the methods by which the Minister gives documents to a person.  It, essentially, states that the Minister dates the document and dispatches it within three working days of the date of the document – by prepaid post to the last address for service provided to the Minister. 

7. In this case each of those requirements in subsection (4) have been complied with by the Minister. 

8. Section 494C(4) is the next section which requires consideration:-

   “494C When a person is taken to have received a document from the Minister

   ……

   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.”

9. This section states that if the Minister gives a document to a person by the method in subsection 494B(4), the person is taken to have received the documents as set out in this section 494C(4), relevantly, seven working days after the date of the document.

10. In this matter currently before the court, I find as a fact that the Minister sent a copy of the delegate’s decision on 30 March 2015 in accordance with the provisions of section 494B(4). I also find as a fact that the deeming provisions which essentially appear in section 494C(4) are operative and the applicant is taken to have received the document seven working days after the date of the document.

11. Because there were two intervening public holidays, namely Good Friday and Easter Monday, it is noted that the applicant was taken to have received the document on 10 April 2015. The applicant, therefore, is taken to have been notified of the decision on 10 April 2015. Accordingly, pursuant to section 412(1) of the Migration Act, the applicant had 28 days within which to make an application to the tribunal for a review of the decision. Section 412 of the Act states:-

    “412 Application for review of Part 7 – reviewable decisions

    (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).

    (2)  An application for review may only be made by the non-citizen who is the subject of the primary decision.

    (3)  An application for review may only be made by a non-citizen who is physically present in the migration zone when the application for review is made.

    (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).”

12. I find that the 28-day period ended on 8 May 2015.  The bundle discloses that the applicant did not actually lodge an application for a review until 11 May 2015.  This was done online and a copy of that document appears at page 28 of the bundle.

13. At page 18 of the bundle there is contained a letter dated 15 May 2015 sent by the Tribunal to the applicant.  That letter states:-

    “15 May 2015

    Dear BIW15

    INVITATION TO COMMENT ON VALIDITY OF APPLICATION FOR REVIEW – MISS BIW15

    I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Protection Visa.

    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 your authorised recipient on 30 March 2015 and, on the basis that 10 April 2015 was the date on which you are taken to have been notified, the last day for lodging the application for review was 8 May 2015. As the application was not received until 11 May 2015, it appears it be out of time. However, this is a matter which must be determined by a Tribunal 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 29 May 2015. Your application, with any comments you make, will then be referred to a Tribunal member to make a decision on your application. If the Tribunal member decides that you have not made a valid application, you will be given a written statement of decision and reasons.

    If you have any questions, please email [email protected], or contact me on the number listed below, or telephone the Tribunal’s national enquiry line on 1300 361 969. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.”

14. The Tribunal officer had therefore (by that letter) informed the applicant that he was of the view that the application was not a valid application, as it had not been lodged within the relevant time limit.

15. The applicant then wrote on 28 May 2015 to the Tribunal with some comments in relation to the letter that had been sent by the Tribunal dated 15 May 2015.  That letter from the applicant is contained at page 15 of the court book.

16. The Tribunal made its decision and that front cover sheet commences at page 9 of the court book, but the statement of decision and the reasons is contained on page 10 of the court book.  That decision was dated 15 June 2015.  In that decision, the Tribunal concluded that it did not have jurisdiction in the matter.  In paragraph 5 of its decision, and paragraph 6, as well, the Tribunal made it clear that it had concluded that it had no jurisdiction because the applicant had not complied with the 28-day time limit for the lodgement of her application.

17. The decision is, in the circumstances, understandably quite short, and states as follows:-

    “STATEMENT OF DECISION AND REASONS

    APPLICATION FOR REVIEW

    1. An application has been lodged for review of a decision of a delegate of the Minster for Immigration, dated 30 March 2015, 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 11 May 2015. 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 r4.31 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 30 March 2015 and dispatched by post. The Tribunal is satisfied that the applicant was notified of the decision in accordance with statutory requirements.

    4. On 15 may 2015 the Tribunal forwarded a document by e mail to the applicant’s e mail address for service. The document informed the applicant that her application for review was not lodged within the relevant time limit and invited the applicant’s comments on whether a valid application had been made and for her to do so in writing by 29 May 2015.

    5. The applicant responded to the Tribunal in a document dated 28 May 2015. In that document the applicant said that one week before the 28 day limit for lodgement of her application for review she believed that she had lodged the review on line and believed that it had been successfully lodged with the Tribunal. The applicant referred to a computer problem and then was not sure that the applicant had been successfully lodged and then claims to have sent a paper application “through normal mail”. The applicant claimed to have checked with the Tribunal after the 28 day limit and found out that the application had not been received by the Tribunal. She claimed to have sent it to the correct address. She asked the Tribunal to consider her situation.

    6. The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 10 April 2015. Therefore the prescribed period within which the review application could be made ended on 8 May 2015. As the application for review was not received by the Tribunal until 11 May 2015 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.

    DECISION

    7. The Tribunal does not have jurisdiction in this matter.”

18. The applicant filed an application for judicial review of that Tribunal decision on 14 July 2015.  The applicant set out three grounds of review.  I do not consider that the applicant has identified any jurisdictional error in the three grounds of review to which she has referred in her application for judicial review.

19. I note what was stated by Robertson J in SZULH v Minister for Immigration and Border Protection [2015] FCA 835. That decision was handed down by his Honour on 12 August 2015, and I note that His Honour stated, inter alia:-

    “11. The statutory provisions referred to by the primary judge were as follows. Section 412(1)(b) of the Migration Act 1958 (Cth) requires that an application for review be given to the Tribunal within the period prescribed. Regulation 4.31 of the Migration Regulations 1994 (Cth) prescribes the period as 28 days commencing on the day the applicant is notified of the decision.

    12. As held by the primary judge, the statutory requirements as to “notification” begin with s 66(1) of the Migration Act, which states that when the Minister refuses to grant a visa the Minister is to notify the applicant of the decision in the prescribed way. Regulation 2.16(3) requires the Minister to notify an applicant of a decision to refuse to grant a visa by one of the methods specified in s 494B of the Migration Act.

    13. The relevant provision is s 494B(4) which states that a method consists of the Minister dating the document and then dispatching it within three working days of the date of the document and by prepaid post to, relevantly here, the last address for service provided to the Minister by the recipient for the purpose of receiving documents. The primary judge held that the letter was sent, by prepaid post, within three working days of the date of the letter to the last address for service provided to the Minister by the applicant for the purpose of receiving correspondence.

    14. Section 66(2) also states that notification must, if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa, specify that criterion; give written reasons why the criterion was not satisfied; and set out the applicant’s rights of review. The letter of 30 January 2014 ( CB 44), met those requirements.

    15. Thus, the primary judge held, s 494C(4) of the Migration Act operated so that the applicant was taken to have received the letter seven working days after the date of the letter, that date being 10 February 2014, the date of notification as found by the Tribunal.

    16. None of these findings were put in issue by the applicant on the present application.

    17. For completeness, I note that in Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324; (2000) 97 FCR 407, Heerey J at [31] construed s 412 as making plain that if an application is not made in accordance with s 412, the application is not a valid one and the Tribunal has no jurisdiction to review the primary decision under s 414. See also Finkelstein J at [44 ff] 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]–[10] per Flick J and SZQVV v Minister for Immigration and Citizenship [2012] FCA 1471 at [10] per Flick J.”

20. The application in the present case was not made in accordance with section 412. It is therefore not a valid application and the Tribunal therefore had no jurisdiction to review the primary decision of the delegate under section 414 of the legislation. The correctness of this conclusion is confirmed by reference to an earlier decision of Flick J in SZQVV v Minister for Immigration and Citizenship [2012] FCA 1471, a decision handed down 21 December 2012. In that decision, Flick J at page 4 noted an earlier decision of Jeerey J in Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324:

    “Nor can there be any question but that the Tribunal lacked jurisdiction.  The “making of an application within the prescribed time is an essential preliminary to the exercise of the RRTs function”: Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324 at [31], 97 FCR 407 at 415 per Heerey J…”

21. The next sentence in Flick J’s decision states:

    “…There is no power to “override” the time limitation prescribed by s 412(1)(b): VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 311 at [32]-[33], 133 FCR 570 at 578 per Gray, Whitlam and Mansfield JJ.”

22. This type of issue has been the subject of consideration by the courts over many years, including consideration by the Full Court of the Federal Court of Australia.

23. I referred to the grounds of review as stated by the applicant and I have noted my conclusion that none of the grounds disclose any jurisdictional error.  I note, for instance, ground 1, the applicant has stated:

    “1. I am a Chinese citizen and a genuine Christian.  I can not return to China.  If I am forced to leave, I will be in danger.”

24. The applicant has failed to demonstrate any jurisdictional error in relation to that ground, primarily because the Tribunal was not required to review that claim.  The Tribunal is not required to consider claims for protection unless there has been a valid application filed, and that is a question of jurisdiction.

25. As to ground number 2, it states there that:

    “2. RRT did not give good consideration for my explanation.”

26. Ground number 3 states:

    “3. It is not fair not to accept my review application.  I need protection from Australian Government.”

1. As to ground two, in fact, the RRT did give consideration to the applicant’s explanation, including in paragraph 5 of its decision.

2. To the extent that any of the grounds of review (in particular probably the third ground of review) attempts to claim that the Tribunal failed to accord procedural fairness to the applicant, I conclude that this ground is not sustainable.  The deeming provisions in the legislation to which I have referred are such that the ground itself is unsustainable.  There is no demonstration by the applicant of jurisdictional error.

3. I have come to the conclusion that the Tribunal had no jurisdiction to review the decision of the delegate.  There is no jurisdictional error in the Tribunal’s decision and the application must fail.  The application filed on 14 July 2015 is dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Howard.

Date: 4 October 2016