BRG15 v Minister for Immigration
[2016] FCCA 2586
•14 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRG15 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2586 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal – whether review application arrived by express post to GPO Box within relevant time limit – Tribunal has jurisdiction to hear the application – application allowed – remitted to the Tribunal. |
| Legislation: Migration Act 1958 (Cth), ss.412(1)(b), 420A Migration Regulations 1994 (Cth), regs.2.10, 4.31, 4.31AA(1)(c) |
| Cases cited: Chen v Minister for Immigration and Border Protection (2013) 216 FCR 241; (2013) 139 ALD 12; [2013] FCAFC 133 SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; (2013) 138 ALD 1; (2013) 299 ALR 246; [2013] FCAFC 71 |
| First Applicant: | BRG15 |
| Second Applicant: | BRH15 |
| Third Applicant: | BRI15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1900 of 2015 |
| Judgment of: | Judge McNab |
| Hearing date: | 11 July 2016 |
| Date of Last Submission: | 11 July 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 14 October 2016 |
REPRESENTATION
| The Applicants In Person | |
| Counsel for the Respondents: | Ms Mitchell |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
A writ of certiorari issue, quashing the decision of the Second Respondent dated 27 October 2015.
A writ of mandamus issue remitting the matter to the Second Respondent, to consider and determine according to law the application made to it by the application for review of the delegate of the First Respondent's decision.
The First Respondent pay the applicant’s reasonable costs (if any).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1900 of 2015
| BRG15 |
First Applicant
| BRH15 |
Second Applicant
| BRI15 |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Nature of Application
By way of an application filed 18 August 2015, the applicants seek judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 24 July 2015, which decided that it did not have jurisdiction to review the decision of the First Respondent, by his delegate, not to grant the applicants’ Protection (Class XA) visas (“visa”) because the application to the Tribunal was lodged out of time.
Background
The factual background relating to the application is relevantly set out in the first respondent’s written submissions filed on 4 July 2016 and is paraphrased as follows:
The first applicant is a 51-year-old citizen of India who first arrived in Australia, accompanied by his wife and son (the second and third applicants respectively), on 7 May 2008 as the holder of a tourist visa. Subsequently on 21 June 2008, the applicant lodged his initial application for a Visa, which was refused by a delegate on 13 October 2008 and the Tribunal affirmed that decision on 19 March 2009.
On 12 December 2013 the applicants lodged the current application for the visa following the Full Federal Court decision of SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; (2013) 138 ALD 1; (2013) 299 ALR 246; [2013] FCAFC 71.
In his visa application, the first applicant effectively sought protection based on the same grounds raised with respect to his previous visa application (fear of harm from the political party Shiromani Akali Dal based on the applicant’s association with Dera Sacha Sauda). The first applicant submitted that, contrary to the delegate’s and the Tribunal’s findings on that visa application, he could not relocate within India as he would not be in a position to establish a business elsewhere.
The applicant also claimed to fear harm to his son on the basis of his son’s medical condition which, he claimed, could not be properly treated in India.
Following an interview with the first applicant on 13 March 2015, the Minister’s delegate notified the applicants of his decision to refuse to grant the visa and included a brochure informing the applicants of their right to apply to the Tribunal, relevantly, within 28 calendar days after the applicants were taken to have received the letter.
On 10 June 2015, the Tribunal received the applicants’ review application signed 4 June 2015. A cover letter provided with the review application stated that the first applicant was sending the application through for the second time as the first attempt at posting the application did not go through. The first applicant provided an Australia post tracking number and stated that:
The “incorrect delivery address” was followed up and I contacted Australia post about it and I was told that it had been an error because a minute afterwards, it was “in transit” and delivered at 4:21pm on the 12th of May.
The Tribunal’s file contained a case note dated 11 June 2015 which recorded that there was no record of receipt of a review application on 12 May 2015. However, it concurs with the applicant, that upon checking the same tracking number, it showed that on 11 May 2015 there was an attempted delivery but the address was incorrect and that, one minute later, the parcel was in transit. The tracking record shows that the parcel was processed through the Australia Post facility and delivered on 12 May 2015.
By letter sent to the applicants dated 11 June 2015, the Tribunal acknowledged the review application and noted that the applicants “will be advised if it appears that your application may not be valid.”
The Tribunal faxed Australia Post on 15 June 2015 requiring further details regarding the delivery of the parcel. Australia Post responded by email dated 19 June 2015 with additional tracking records which stated:
The procedure if an express post article is addressed to the Tribunal PO Box, is for the postman to scan the article automatically as “Attempted Delivery- Incorrect address on parcel”; and
The “delivered scan” on 12 May 2015 at the GPO Box room is “performed” when the Express Post article is placed in the PO Box.
By letter dated 24 June 2015, the Tribunal invited the applicants to comment on its view that the review applications were not lodged within the relevant time limit, with their response due in writing by 17 July 2015. The first applicant’s response was received by the Tribunal on 10 July 2015 which stated that he had sent the second review application as soon he got word that his visa had been refused.
A Tribunal case note dated 14 July 2015 notes the first applicant’s response and states that no records could be found corroborating receipt of the review application. Subsequently, on 24 July 2015 the Tribunal decided that it did not have jurisdiction, pursuant to s.412(1)(b) of the Migration Act 1958 (Cth) (“the Act”), to review the delegate’s decision to refuse the visa. Relevantly, it stated that the review application must be physically received at a registry to constitute lodgement; that the evidence was that a review application was not received until 10 June 2015; and therefore the application for review was not made in accordance with the relevant legislation; and therefore the Tribunal had no jurisdiction in this matter. The applicants were notified of the decision by letter dated 27 July 2015.
Subsequently on 5 August 2015, the Tribunal received the applicant’s review application signed 6 May 2015, with a handwritten note on the envelope stating:
PLEASE POST BACK TO 10/120 SPENCER ST. MELBOURNE.
This letter ended up at 800 Bourke Street. Melb –NAB – incorrectly.
After receiving that application, the Tribunal sent a letter dated 7 September 2015 to the applicants, inviting comment on its view that the review applications were not lodged within the relevant time limit, with their response due in writing by 30 September 2015. The applicants did not respond to that invitation.
On 27 October 2015, the Tribunal decided that it did not have jurisdiction to review the delegate’s decision to refuse the visa on the basis that the applications were not received until 5 August 2015, outside the time limit provided under s.412(1)(b) of the Act and
reg. 4.31 of the Migration Regulations 1994 (Cth) (“the Regulations”).
The Tribunal informed the applicants of its decision by letter dated 27 October 2015.
Grounds of Review
The applicants in the application filed 18 August 2015 state the Grounds of application as follows:
Ground 1
The application for review was lodged on time and delivered on 12 May 2015 according to Australia Post. There is no evidence that the Express Post was sent to an incorrect address.
Ground 2
The Tribunal must accept contrary to its finding that the application was physically received by the Tribunal because Express Post must be reliable and was lodged on time.
Ground 3
I was originally accepted as a person who has a well founded fear of persecution if compelled to return to India therefore I have an arguable case and at the time of my previous application there was no issue of complimentary protection visa available and there is one now.
Ground 4
I ask the Honourable Court to take into account that the Express Post mentioned has been delivered and I have not received any comment as to the whereabouts of the Express Post sent to the Tribunal.
Relevant legislation provisions as at 12 May 2015
At the time that the matter was considered by the Tribunal, the legislation was as follows:
Section 412 of the Act provides:
(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).
Regulation 4.31(2) of the Regulations provides:
(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 an RRT‑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.
Regulation 4.31AA of the Regulations provides:
(1) An application for review by the Tribunal of an RRT‑reviewable decision must be given to the Tribunal by:
(b) sending it by pre‑paid post to a registry of the Tribunal; or
(c) having it delivered by post, or by hand, to an address specified in a direction given by the Principal Member under section 420A of the Act; or
(2) An application made to the Tribunal in accordance with paragraph (1)(a) or (b) is taken to have been received by the Tribunal at the time the Tribunal receives it.
(3) An application made to the Tribunal in accordance with paragraph (1)(c) is taken to have been received by the Tribunal at the time it is received at the relevant address.
CONSIDERATION
Katzmann, Griffiths and Wigney JJ in Chen v Minister for Immigration and Border Protection (2013) 216 FCR 241; (2013) 139 ALD 12; [2013] FCAFC 133, considered whether an application for a visa, deposited at a GPO Box specified by the Minister’s Department as the mode for submitting an application for a visa, was made at ‘an office of Immigration in Australia,’ in accordance with reg.2.10 of the Regulations. The GPO Box was considered by the Court to be part of the Department’s office for the purposes of the visa application.[1]
[1] Chen v Minister for Immigration and Border Protection [2013] FCAFC 133 at [68]
The evidence before the Tribunal is that when the letter is marked ‘delivered’ by Australia Post, this indicates that the letter has been placed in the PO Box of the Tribunal.
In circumstances where there is uncontradicted evidence of the applicant that:
a)he posted the letter containing the application on 10 May 2015;
b)the tracking system maintained by Australia Post states that the letter has been delivered;
c)the information before the Tribunal from Australia Post that the reference to “delivered” in the tracking system means that it had been delivered to the Tribunal’s PO Box;
d)the PO Box is the property of the Tribunal and part of the Tribunal; and
e)there is evidence that the letter was delivered by Australia Post to the Tribunal Post box within the time fixed by the Regulations;
then accordingly there was a valid delivery within the meaning of reg.4.31AA(1)(C).
On the balance of probabilities, the evidence shows that the document was delivered to the Tribunal when it was marked “delivered” and therefore the Tribunal has jurisdiction to hear the application. I uphold Ground 1 of the application.
In these circumstances, it is appropriate that I set aside the decision and remit the matter for hearing.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 14 October 2016
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