BSJ15 v Minister for Immigration
[2016] FCCA 984
•27 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BSJ15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 984 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – Tribunal found it had no jurisdiction as the review application was lodged 23 years after the applicant was notified of the departmental decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.115, 116 |
| Cases cited: Chan Ta Srey v the Minister for Immigration [2003] FCA 1292 Minister for Immigration v Singh [2000] FCA 377 |
| Applicant: | BSJ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2331 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 27 April 2016 |
| Delivered at: | Sydney |
| Delivered on: | 27 April 2016 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms C Hillary of DLA Piper |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2331 of 2015
| BSJ15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 23 July 2015. The Tribunal found that it did not have jurisdiction in relation to the review application before it. The background facts relating to this matter are conveniently set out in the Minister’s outline of legal submission filed on 20 April 2016.
The applicant is a male citizen of Malaysia. He applied for refugee status and a domestic protection entry permit (subclass 784) on 24 July 1991.[1]
[1] Court Book (CB) 1-51.
The applicant gave the same residential address in both applications.
The applicant gave a postal address in both applications.[2]
[2] This was the address of the applicant’s migration agent.
A decision was made within the Minister’s department to refuse the application for refugee status on 31 March 1992.[3] The applicant was notified of this decision, and the decision to refuse the application for a domestic protection entry permit, by letter dated 31 March 1992[4] and addressed to the applicant’s postal address.
[3] CB 62-64.
[4] CB 59-61.
I note that s.115 of the version of the Migration Act 1958 (Cth) (Migration Act) in force at that time provided for the internal review of delegate's decisions. There is no evidence that such an internal review was sought. Pursuant to s.116 of the Migration Act, as in force at the time of the delegate's decision, under the heading of “Applications for review by Tribunal”, the applicant had the right to apply to the then Immigration Review Tribunal for review of the delegate's decision, and for the review of any decision made following an internal review. The time limit for such an application was 28 days.[5]
[5] Section 116 (3) (a) of the Migration Act 1958 (Cth) as in force at the time of the delegate's decision stated “the regulations that may be made must not provide a period during which an application for review of a reviewable decision may be made that is longer than: (a) if the applicant is physically present in Australia - 28 days”. Regulation 24(1) of the Migration (Review) Regulations 1989 (Cth) in force at the time of the decision and Regulation 40 (1)(a) of the Migration (Review) Regulations (1993) (Cth) in force in November 1993 at the time the applicant lodged an application to remain permanently in Australia (by which time he had actual knowledge of the delegate’s decision) indicated that an application for review must be made within 28 days after the day on which the person to whom the decision relates is taken to have been notified of the decision.
The applicant applied to the Tribunal on 16 June 2015, seeking review of the decision dated 27 March 1992, notified by letter dated 31 March 1992.[6] In emailed submissions[7] the applicant's migration agent alleged that the delegate's decision was not properly notified to the applicant as the refusal letter of 31 March 1992 did not correctly state the time period within which the applicant could apply for review of the decision. The applicant's agent relied upon the decision of the Federal Court in Chan Ta Srey v Minister for Immigration [2003] FCA 1292 (Srey) in support of his submissions.
[6] CB 86-90.
[7] CB 99-118.
The Tribunal made a decision on 23 July 2015, finding that it did not have jurisdiction as the application was made out of time.[8] The Tribunal rejected the submissions of the applicant's agent on the basis that at the relevant time there were no legislative requirements for the content of the notification letter. The Tribunal further found that the applicant must have received notification of the delegate's decision by at least 23 November 1993 as on that date he lodged an application to remain permanently in Australia.[9]
[8] CB 123-127.
[9] See CB 65-85. The application appears to have been in fact lodged on 25 November 1993 but nothing turns on this typographical error, particularly given that the application was signed by the applicant on 23 November 1993. The point is that the Tribunal found that by November 1993 the applicant must have received the notification of the delegate’s decision.
These proceedings began with a show cause application filed on 25 August 2015. There are five grounds in the application:
1.The Second Respondent failed to exercise discretion and did not take into account of all relevant considerations in making the determination, in particular to the case precedent as set out in Chan Ta Srey v Minister For Immigration & Multicultural & Indigenous Affairs (2003) FCA 1292 (12 November 2003 and other cases.
2.The Second Respondent denied the applicant natural justice or procedural fairness in making the determination without thoroughly examining the similarity and difference between Chan Ta Srey v Minister For Immigration & Multicultural & Indigenous Affairs (2003) FCA 1292 (12 November 2003 and my matter, and insisted that (in Paragraph 18 of its decision) “the (literal) interpretation appears plainly inconsistent with s115 (3) of the Act which, in setting out matters for which the Regulations may provide for in relation to review of decisions, states that the Regulations must not provide a period during which an application for review may be made that is longer than 28 days.”, without explaining why it was so.
3.There was no evidence to support finding pursuant to the First Respondent’s consideration being taken of the factors raised by the applicant in the submission made earlier (to the First Respondent).
4.Paragraphs 17 – 31 in the determination of the Second Respondent was an improper exercise of power and did show bias against the applicant. No relevant considerations have been taken into account other than the ‘narrow’ or so called ‘purposive’ approach taken by the second respondent to interpret the then Legislations in particular to r.24, ad r. 8J.
5.Both the First Respondent, and the Second Respondent allegedly did not fairly conduct the fact finding under the statutory requirement by way of using very limited line of statutory interpretation in making the decisions.
(errors in original)
The application is supported by an affidavit filed with it, which I have received.
I also have before me, as evidence, the court book filed on 1 October 2015. The nub of the applicant’s grounds is that the decision of the delegate, which the applicant sought to review before the Tribunal, was affected by the decision of the Federal Court in Srey, in that the notification of the delegate’s decision to him was not compliant with procedural requirements.
In written submissions which I received yesterday the applicant also asserts that the decision of the delegate was affected by the earlier decision of the Federal Court in the Minister for Immigration v Singh [2000] FCA 377 (Singh). In oral submissions, the applicant contends that, in the circumstances he faced in 1992, the outcome was unfair, because he did not receive notification of the delegate’s decision until after the period had expired for seeking review of that decision. The Minister contends that the applicant should be taken to have received notification of the delegate’s decision within that period, but the Minister concedes that he is not in a position to prove the actual date of despatch of the notification, given the passage of time.
Assuming, for the sake of the argument, that the applicant is correct and that he cannot be taken to have received notification of the delegate’s decision prior to the expiry of the period within which he was entitled to seek internal review of that decision, pursuant to the provisions of the Migration Act applying at the time, he has nevertheless conceded from the bar table that he did receive notification after that 28 day period in the latter part of 1992. It would logically follow that it was open to him to seek internal review at that time, on the basis that he had not been properly notified of the delegate’s decision and time did not run until the date of actual notification.
He did not take that opportunity. Instead he applied for a different kind of visa, dependent on knowledge of the rejection of the former protection permit he had sought at the time. The Minister’s submissions otherwise deal adequately with the grounds raised. I agree with the Minister’s submissions as to the then-applicable law and the outcome, save for the arguability of the proposition that the applicant may not have received notification of the delegate’s decision within the period for seeking internal review.
Whether the Tribunal had jurisdiction to review the delegate's decision is a jurisdictional fact to be determined by the Court.
In determining this question, the first issue to be determined is whether the delegate's decision was validly notified to the applicant, and when. This requires consideration of the legislative requirements as at 31 March 1992, being the date on which the delegate's decision was purportedly notified to the applicant. The relevant section of the Migration Act as in force at that time is s.24(7), which did not include any requirements as to the content or dispatch of decisions.
Regulations 35 and 169 of the Migration Regulations 1989 (Cth) as in force at the relevant time prescribed requirements as to the dispatch of documents, and regulation 173 provided for the deemed receipt of documents, as follows (emphasis added)
Reg 35.
(1) Where the Minister refuses to grant a visa or an entry permit, or determines that a visa or an entry permit ceases to be in force because the holder has failed to comply with a terminating condition subject to which the visa or entry permit was granted, the Minister must give the applicant written notice of that decision:
(a) by posting the notice to the latest address for service provided by the applicant in relation to the application; or
(b) by posting the notice to the residential address provided by the applicant in the application; or
(c) by giving the notice to the applicant personally or to a person duly authorised to receive documents on behalf of the applicant; or
(d) by leaving the notice at the last known place of residence of the applicant with a person apparently an occupant of that place and apparently not less than 16 years of age.
(2) Where notice of decision is served on the applicant under subregulation (1), service is to be taken to be effected as if the notice was a document to which subregulation 173 (1) or (2) applies.
(3) Subregulation (1) does not apply where the applicant is refused a visa or an entry permit on arrival in Australia and before entry to Australia.
Reg 169
(1) Where:
(a) a document is to be given to, or served on, a person by the Minister, the Secretary or an officer of the Department under or for the purposes of the Act or these Regulations; and
(b) no other provision as to the manner of giving or serving the document is made by the Act or these Regulations;
the document may be given to or served on the person;
…
(d) in any other case:
(i) by giving it to the person personally or to a person duly authorised to receive documents on behalf of the first-mentioned person; or
(ii) by posting it to the person at his or her last known place of residence.
Reg 173
(1) Subject to this regulation, a document served on a person is to be taken to be received by the person on the day on which the document:
(a) is given to, or left with, the person; or
(b) is given to, or left with, another person authorised by the first-mentioned person to receive documents of that kind on his or her behalf; or
(c) where these Regulations provide for such service-is left at the place of business or residence of the person to be served with another person apparently an occupant of that place and apparently not less than 16 years of age.
(2) Where a document is served on a person in accordance with this Division by post, service is to be taken to be effected:
(a) if the service is within Australia-on the expiry of 5 working days after the day of posting; or
(b) if the service is outside Australia-on the expiry of 21 days after the day of posting.
(3)Where service of a document on a person in accordance with this Division is by publication in a newspaper, service is to be taken to be effected on the expiry of 7 days after the day of publication.
(emphasis added)
Therefore, according to the above provisions, there was no requirement for the notification of the delegate's decision to advise the applicant of his review rights. This matter is therefore distinguishable from Srey, as in that case at the time of the delegate's decision s.66 of the Migration Act required that the applicant be advised of his review rights and the time limits for applying for review. Accordingly, I reject the applicant's argument that the delegate's decision was not validly notified to him due to a failure to advise him of his review rights.
As the delegate's decision of 31 March 1992 was a decision to refuse to grant a visa or an entry permit, regulation 35 applied so as to allow for the document to be posted to the applicant's postal address rather than his residential address. Pursuant to regulation 173(2)(a) the applicant is taken to have received the delegate's decision 5 days after it was posted.
The Minister is unable to present evidence as to the dispatch of the delegate's decision by post, due to the passage of time. The Minister notes, however, that the applicant does not deny receiving the delegate's decision. Indeed, he today conceded receiving the notification in 1992 after the 28 day appeal period had expired. His argument has consistently been that the notification was deficient due to a failure to advise him of his review rights. The Minister contends that in these circumstances the Court should find that the letter was dispatched on or around 31 March 1992, and that the applicant accordingly was deemed to have received the letter on or around 5 April 1992.
However, in circumstances where the Minister cannot prove dispatch of the notification letter, and where the applicant denies receipt of it until the statutory review period had expired I prefer to proceed on the basis that the applicant had actual notice of the delegate's decision by the end of 1992 (on his own admission) or at least November 1993 when he lodged a further visa application. In this visa application the applicant stated as follows, in response to a question as to whether he had previously lodged any applications with the Department, indicated his actual knowledge of its refusal:
The type of application was refugee status in Australia and for DPTEP. It was lodged to the East Sydney Branch on the 29/06/91. It was not granted.
The statement above, made by the applicant on 23 November 1993, coupled with his concession today, shows that he was aware of the delegate's decision dated 31 March 1992. The applicant accordingly had actual notice of the delegate's decision probably in 1992 and at least by 23 November 1993, such that regulation 173 would apply to provide that the decision was taken to have been received by the applicant by at least that date. Accordingly the application for review of the decision made in 2015 was made out of time.
I agree with the Minister that the delegate’s decision in issue is unaffected by either the decision in Srey or the decision in Singh. The Minister’s submissions deal with the decision in Srey. On the applicant’s own submissions, the delegate’s decision in issue in this case was not affected by the decision in Singh, because it preceded the time period within which that decision had an operative effect. The applicant’s submissions contended that the decision in Singh affected the delegates’ decisions from 1 September 1994.
I conclude that the applicant’s argument, while interesting, is not on analysis arguable. I conclude, therefore, that he has failed to demonstrate an arguable case of jurisdictional error by the Tribunal.
I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant sought information concerning his options for the payment of costs, and information concerning his rights of appeal. I answered those questions.
I will order that, the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 2 May 2016
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