BMG19 v Minister for Home Affairs

[2019] FCCA 2627

FEDERAL CIRCUIT COURT OF AUSTRALIA

BMG19 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2627

Catchwords:
MIGRATION – Persecution – review of Administrative Appeals Tribunal (“Tribunal”) decision – visa – protection visa – terms of an effective notification of the period within which an application for review could be made to the Tribunal.

ADMINISTRATIVE LAW – Allegation that Tribunal’s decision that it had no jurisdiction was erroneous.

Legislation:

Migration Act 1958, ss.66, 412, 474, 494
Migration Regulations 1994 (Cth), reg.4.31

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
DZAFH v Minister for Immigration & Border Protection [2017] FCCA 387

DFQ17 v Minister for Immigration & Border Protection [2019] FCAFC 64
Ali v Minister for Home Affairs [2019] FCA 1102

Applicant: BMG19

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 885 of 2019

Judgment of: Judge Cameron

Hearing date: 15 August 2019

Date of Last Submission: 15 August 2019

Delivered at: Sydney

Delivered on: 15 August 2019

REPRESENTATION

Solicitors for the Applicant: Mr M Jones of Parish Patience Immigration Lawyers

Solicitors for the Respondents: Ms B Rayment of Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the respondent’s costs fixed in the sum of $5,000.

3. The name of the first respondent be amended in the Court record to Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 885 of 2019

BMG19

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of Egypt who arrived in Australia on 8 November 2011. On 26 July 2017 he lodged an application for a protection visa with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution in Egypt because of political views which would be imputed to him and because of his membership of a particular social group. On 21 December 2018 the applicant’s application was refused by a delegate of the first respondent (“Minister”). On 18 January 2019 the applicant applied to the Administrative Appeals Tribunal (“Tribunal”) for a review of that departmental decision. He was unsuccessful before the Tribunal which found that it had no jurisdiction to hear the matter. The applicant has applied to this Court for judicial review of the Tribunal’s decision.

2. In this judicial review proceeding the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

BACKGROUND FACTS

1. The applicant accepted that the delegate’s letter of refusal had been emailed on 21 December 2018.

2. On 18 January 2019 the applicant lodged an application with the Tribunal for review of the departmental decision.

3. By letter dated 29 January 2019 the Tribunal wrote to the applicant advising that the application for review might be invalid as it had been lodged outside the 28 day period prescribed by reg.4.31(2) of the Migration Regulations 1994 (“Regulations”).

4. Referring to DZAFH v Minister for Immigration & Border Protection [2017] FCCA 387, the Tribunal said that the 28 day timeframe for bringing an application for review under the Regulations commenced on the date the applicant had been notified of the departmental decision, in this case 21 December 2018, and expired on 17 January 2019. The Tribunal noted that the applicant had lodged his application for review on 18 January 2019. The Tribunal invited the applicant to respond to these issues before a decision on the validity of his application for review was made.

5. The applicant’s solicitor replied by letter dated 25 February 2019 saying that the applicant had not been validly notified of the delegate’s decision under s.66(2)(d)(ii) of the Act. This was said to be because a notification to refuse a visa application must state “the time in which the application for review may be made” but the letter which had notified the applicant of the departmental decision relevantly only stated that the “timeframe [for review] commences on the day on which you are taken to have been notified of this decision, and ends at the end of 28 days”. It was argued that the statement “ends at the end of 28 days” was “ambiguous” and failed to comply with reg.4.31(2).

The Tribunal’s decision and reasons

1. After discussing the applicant’s submissions and the evidence before it, the Tribunal concluded that it lacked jurisdiction to determine the applicant’s application for review. The Tribunal’s decision was based on the following findings and reasons:

   a)the applicant had been validly notified of the departmental decision by email on 21 December 2018;

   b)given that he had been validly notified of the departmental decision by email on 21 December 2018, the applicant had had until 17 January 2019 to apply for review of that decision;

   c)the applicant lodged his review application on 18 January 2019;

   d)the application for review had not been made within the time limit specified by the Regulations; and

   e)because the applicant’s application for review was lodged after the 28 day period had expired, it had no jurisdiction to determine the application.

THE PROCEEDING IN THIS COURT

1. In his amended application the applicant alleged:

   The Tribunal erred in finding that the application for review was out of time.

   Particulars

   Migration Regulation 4.31(2) stipulates that:  “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 notice of refusal of the application for a Protection visa dated 21 December 2018 stated that the timeframe for lodging an application for review “commences on the day on which you are taken to have been notified of this decision, and ends at the end of 28 days”.

   Pursuant to s 66(2)(d)(ii) of the Migration Act 1958, a notice of refusal of a visa must state the time in which the application for review may be made.  As it did not state the time correctly, the purported notice of 21 December 2018 was not a valid notice and therefore the time for lodging an application for review did not commence to run.

   The purported notification was otherwise invalid because it failed to convey clearly the information that any review application had to be made by 17 January 2019, and was piecemeal, entirely obscure and essentially incomprehensible.

RELEVANT LEGISLATION

1. Section 66(2)(d)(ii) of the Act relevantly provides:

   66Notification of decision

   (1)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.

   (2)Notification of a decision to refuse an application for a visa must:

   …

   (d)if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500—state:

   …

   (ii)     the time in which the application for review may be made; and

   …

2. Section 412 of the Act relevantly provides:

   412   Application for review of Part 7-reviewable decisions

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

   …

   (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

3. Section 494(5) of the Act provides:

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

   (5)If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.

4. Regulation 4.31(2) of the Regulations provides:

   4.31Time for lodgement of application with Tribunal

   …

   (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 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 28 days, commencing on the day the applicant is notified of the decision.

CONSIDERATION

1. A failure to comply with s.66(2) means that there has been no notification of the delegate’s decision. This is because the Act states that notification of the delegate’s decision “must” be effected in the manner it prescribes. A failure to follow the steps mandated by the Act amounts to a failure to discharge the duty which the Act imposes. Therefore, if the requirements of the section are not followed, the purported notification is not the notification required by the Act and so it does not engage any of the rights and duties which are consequent upon the giving of a notification which does comply.

2. As stated in DFQ17 v Minister for Immigration & Border Protection [2019] FCAFC 64 which binds me, a notification under s.66(2) must be clear, relevantly, in its statement of the time within which an application for review might be made to the Tribunal: DFQ17 at [58]. The relevant enquiry therefore is whether the statement of that information in the letter sent in this case was clear.

3. The relevant wording of the notification letter was, as in DFQ17, in the following terms:

   An application for merits review of this refusal decision must be given to the AAT within the prescribed timeframe.  This timeframe commences on the day on which you are taken to have been notified of the decision, and ends at the end of 28 days.

4. Unlike in DFQ17, in this case there was no need for the applicant to calculate when he was taken to have received the delegate’s letter because it was emailed to him and, as the letter advised him, he was taken to have received the letter at the end of the day it was sent, which would have been obvious to him.  The applicant in this case was not called upon to undertake the three step process described by Perram J in DFQ17 and the statement regarding when a review application had to be made was not, as in DFQ17:

   … piecemeal, entirely obscure and essentially incomprehensible. 
   (at [62])

5. The applicant also submitted that although the second of the two sentences quoted from the delegate’s letter stated the commencement date of the period correctly, without further explanation it was unclear whether the phrase “at the end of 28 days” meant 28 days after the commencement day or 28 days including the commencement day, namely 21 December 2018. With respect, I see no need for further explanation. The letter stated that time started to run on the day the applicant was taken to have received the letter and it also stated that he was taken to have received the letter at the end of the day on which it was emailed. That is to say time started to run on the day the letter was sent, and if that was the first day of the limitation period, it did not involve much to realise that there were 27 days left.

6. It might be noted in this connection that it was not held in DFQ17 that the words quoted from the delegate’s letter were, in themselves, unclear. What was unclear in DFQ17 was how the applicant was to discover when he was to be taken to have been notified of the visa refusal. That problem did not exist in this case, nor do I consider that the form of words in issue in Ali v Minister for Home Affairs [2019] FCA 1102 makes that case so distinguishable from this case that its reasoning is not relevant to present considerations. In many important respects, it is very similar to this case and with respect I adopt with some alteration what Nicholas J said there at [29]:

   A person exercising a reasonable amount of care when reading the letter would understand it to convey that an application for review had to be lodged [at the end of 28 days including the date the letter was emailed]. In my opinion the letter provided sufficient information to facilitate the timeous lodgement of an application for review. …

CONCLUSION

1. For these reasons, I find that there has been no failure to comply with s.66(2) and that, therefore, the Tribunal’s decision is not affected by jurisdictional error.

2. Consequently the application will be dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  17 September 2019