Buy18 v Minister for Immigration
[2019] FCCA 1787
•27 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BUY18 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1787 |
| Catchwords: MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the applicant was properly notified of the decision of a delegate of the first respondent – whether the Administrative Appeals Tribunal had jurisdiction to review the applicant’s application for review – no jurisdictional error – application dismissed. |
| Legislation: Acts Interpretation Act 1901 (Cth) s.36 Migration Act 1958 (Cth), ss.66, 411, 412, 476, 494B, 494C Migration Regulations 1994 (Cth), regs.2.16, 4.31 |
| Cases cited: Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 Awon v Minister for Immigration and Border Protection [2015] FCA 846 CQP15 v Minister for Immigration & Border Protection [2017] FCA 854 NACG v Minister for Immigration & Multicultural Affairs [2002] FCAFC 173 Minister for Immigration & Border Protection v ASEJ5 (2016) 237 FCR 460 Haque v Minister for Immigration and Citizenship [2010] 221 FCR 289 DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 CGJ16 v Minister for Immigration and Border Protection [2018] FCA 1437 |
| Applicant: | BUY18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 733 of 2018 |
| Judgment of: | Judge Emmett |
| Hearing date: | 24 June 2019 |
| Date of Last Submission: | 24 June 2019 |
| Delivered at: | Sydney |
| Delivered on: | 27 June 2019 |
REPRESENTATION
| Applicant: | In person with the assistance of an interpreter |
| Solicitors for the Respondents: | Ms Sophie Given (HWL Ebsworth) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 733 of 2018
| BUY18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 14 February 2018 (“the Tribunal”), in which the Tribunal found that it did not have jurisdiction to review a decision of a delegate of the first respondent (“the Delegate”) made on 29 November 2017 refusing the applicant a Protection (Class XA) visa (“Protection Visa”).
The applicant’s background, a summary of the applicant’s claims and a summary of the Tribunal’s decision is accurately summarised in the submissions of the first respondent, as follows:
“Relevant factual background
2. The applicant, a male citizen of China arrived in Australia on 28 February 2016 as the holder of a Student visa. On 18 August 2017, he applied for a Protection (Class XA) visa (CB 1) claiming that:
(a) He is a Falun Gong practitioner;
(b) the Chinese Government persecuted him and would continue to persecute him if he remained in China.; and
(c) he was arrested and forced to give up job opportunities because of his affiliation with Falun Gong.
3. Attached to his application was a signed ‘Advice by a Migration Agent/Exempt Person of Providing Immigration Assistance’ form by which the applicant provided the following email address as the point of contact for the authorised recipient: [applicant’s email redacted] (nominated email address) (CB 22).
4. On 17 November 2017, the applicant was invited to attend an interview. As noted in the delegate's decision, the applicant did not attend the interview (CB 39).
5. On 29 November 2017, a delegate of the Minister refused the visa application on the basis that the written material provided by the applicant did not provide a sufficient basis for the delegate to be satisfied that the applicant had been targeted by the authorities by reason of his religion or political opinion, or that he faces any kind of harm on return to China (CB 50). The delegate was also not satisfied in relation to complementary protection (CB 50).
6. On 2 January 2018, the applicant applied to the Administrative Appeals Tribunal (“Tribunal”) seeking review of the delegate's decision, a copy of which he attached to his review application (CB 56). The applicant again provided the nominated email address as a point of contact.
7. On 23 January 2018, the Tribunal wrote to the applicant by email to the nominated email address, inviting him to comment on the validity of the application for review (CB 81). The applicant did not respond to the Tribunal's letter (CB 88 at [4]).
8. On 14 February 2018, the Tribunal notified the applicant of its decision, affirming the decision under review (CB 85).
Tribunal decision
9. The Tribunal was satisfied that the applicant was notified of the decision of the delegate on 29 November 2017 (CB 89 at [5]). Therefore, the prescribed period to apply for review ended on 26 December 2017 (CB 89 at [5]). The Tribunal noted that this was a public holiday and therefore, the applicant had until 27 December 2017 to lodge an application (CB 89 at [6]). The Tribunal confirmed that the application was not received until 2 January 2018 and therefore, that it had no jurisdiction in this matter (CB 89 at [7]).”
The proceeding before this Court
The applicant was unrepresented before this Court, although had the assistance of a Mandarin interpreter.
On 12 April 2019, the applicant attended a directions hearing before a Registrar of this Court. On that occasion, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language. The applicant was also given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.
At the commencement of today’s hearing, the applicant confirmed that he has not filed any amended application, evidence or submissions in support of his application and that he has no further documents to present to the Court this morning in support of his application.
The applicant confirmed that he relied on the grounds contained in the application, filed on 20 March 2018, as follows:
“1. The Administrative Appeals Tribunal failed to carry out its statutory duty.
2. The Tribunal failed to give the applicant a meaningful opportunity to present arguments in support or his claims.
3. The Tribunal has ignored relevant consideration in making the decision.”
Each of the grounds was interpreted for the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally.
At the outset of the hearing, I explained to the applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court.
Ground 1
Ground 1 asserts that the Tribunal failed to carry out its statutory duty. I asked the applicant in what way the Tribunal had failed to do so. The applicant responded that he did not know.
The Delegate’s decision was a Part 7 reviewable decision within the meaning of s.411(1) of the Act.
Section 412(1)(b) of the Act relevantly provides that an application for review of a Part 7 reviewable decision must be given to the Tribunal within the prescribed period, being a period ending not later than 28 days after the notification of the decision. Regulation 4.31(2) of the Migration Regulations1994 (Cth) (“the Regulations”) provides that if an applicant is not in immigration detention the period for which an application for review must be lodged with the Tribunal is 28 days, commencing on the day the applicant is notified of the decision.
Section 66(1) of the Act provides that the first respondent must notify an applicant of the Delegate’s decision in the prescribed way. Regulation 2.16(3) of the Regulations prescribes notification to an applicant of a decision to refuse to grant a visa by one of the methods specified in s.494B of the Act.
Relevantly, s.494B(5)(b) involves transmitting notification by email to the last email address provided to the Minister for the purposes of receiving documents. In those circumstances, pursuant to s.494C(5) the person is taken to have received the documents “at the end of the day on which the document is transmitted.”
It is well established that the Tribunal does not have the power to extend the prescribed periods in s.412(1)(b) of the Act or reg.4.31 of the Regulations (see Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 at [83]; Awon v Minister for Immigration and Border Protection [2015] FCA 846 at [38]-[39]; CQP15 v Minister for Immigration & Border Protection [2017] FCA 854 at [43]; NACG v Minister for Immigration & Multicultural Affairs [2002] FCAFC 173 at [7]; Minister for Immigration & Border Protection v ASEJ5 (2016) 237 FCR 460 at [48]).
The time limit for an application for review to the Tribunal is strictly applied even when there is no fault on the part of the applicant (see CQP15 v Minister for Immigration & Border Protection [2017] FCA 854 at [44]; NACG v Minister for Immigration & Multicultural Affairs [2002] FCAFC 173 at [8]).
The date of the email from the Delegate notifying the applicant of the Delegate’s decision was 29 November 2017. The Delegate’s decision was emailed to the applicant’s nominated email address provided by the applicant in the applicant’s Protection Visa application for the purposes of receiving documents, including the outcome of the applicant’s application for a Protection Visa.
I accept the first respondent’s submission that although the applicant had a residential address, the first respondent was not obliged to communicate with him by that means and it was open to the first respondent to use any one of the methods for under s.494B of the Act (see Haque v Minister for Immigration and Citizenship [2010] 221 FCR 289 at [64]).
Accordingly, pursuant to s.494C(5) of the Act the applicant was taken to have received the Delegate’s decision at the end of 29 November 2017 making the last day for the expiration prescribed 28 day period was therefore 26 December 2017. However, as 26 December 2017 fell on a public holiday the applicant had until 27 December 2017 to lodge his application, pursuant to s.36(2) of the Acts Interpretation Act 1901 (Cth).
The applicant lodged his application for review of the Delegate’s decision with the Tribunal on 2 January 2018, outside the review period.
Section 66(2)(d)(ii) of the Act provides that notification of a decision to refuse an application for a visa must state the time in which the application may be made. Section 66(2)(d)(ii) of the Act is in the following terms:
“(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…”
In DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 (“DFQ17”), Rares, Perram and Farrell JJ found that the Administrative Appeals Tribunal made jurisdictional error in affirming the decision under review where the notification letter from the delegate to the applicant was found by Perram J to be “piecemeal, entirely obscure and essentially incomprehensible”. The Full Court found that the Tribunal had erred in concluding that the review application was out of time and was therefore wrong in thinking that it had no jurisdiction to entertain the review application. The Full Court found that the notification letter did not state the time in which an application for review may be made as required by s.66(2)(d)(ii) of the Act because it failed to convey clearly the date on which the review application must be made.
In particular, Perram J described the notification letter as follows:
“60. As described above, the letter referred to the time in which the application for review may be made in different sections across different pages. On page 2 of the letter under the heading ‘Review Rights’ the letter referred to the 28-day period during which the Appellant could seek review of the delegate’s refusal decision. The letter then referred to the seven working day period by which the Appellant was taken to have received the notification on page 3 under the heading ‘Financial or Case Worker Assistance’. The date of the letter was on the top left of page 1. It was from these three separate pieces of information across three pages under different headings that the Appellant, whilst remembering to double-count 14 February 2017, was expected to calculate 13 March 2017.”
Perram J referred to CGJ16 v Minister for Immigration and Border Protection [2018] FCA 1437 (“CGJ16”) where Allsop CJ considered a notification letter which stated under the heading “Review Rights” as follows:
“The department cannot consider your visa application any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision. 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 this decision and ends at the end of 28 days.”
Perram J noted that no argument had been addressed to Allsop CJ in CGJ16 that the notification letter did not “state” the information and was not the subject of any particular argument. Certainly, Allsop CJ noted that the notification letter was “less than precise as to the operation of the Regulations”. However, Allsop CJ had regard to the fact that the notification letter indicated that from a certain date there is a 28 day period.
In the case before this Court, the notification letter, dated 29 November 2017, states under the subheading “Review Rights” as follows:
“The department cannot consider your visa application any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision. 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 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.”
Thereafter, on the third page of the notification letter under the heading “Financial or case worker assistance” the notification letter states as follows:
“If you are receiving Status Resolution Support Services (SRSS), you are refused a protection visa, and you do not lodge an application for review with the AAT, you will be transitioned out of the SRSS programme within seven business days from the end of the prescribed timeframe for seeking merits review.
As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.”
Plainly, the last sentence in that section, namely, “As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted” should clearly have formed part of the information provided under the heading “Review Rights”.
The question for determination is whether the Delegate’s notification letter, dated 29 November 2017, failed to convey clearly the information that any review application must be made at the end of 28 days commencing on the date the applicant was notified, namely, 29 November 2017, where that notification was sent to the applicant by email.
The first respondent submits that DFQ17 is distinguishable from the case before this Court because the notification letter in the case before this Court did state with sufficient clarity the time in which a review application may be made. The first respondent submitted that the notification letter dated 29 November 2017 was sent by email, rather than by letter (which occurred in DFQ17, thereby making the calculation more difficult).
The first respondent submitted that the notification letter, dated 29 November 2017, conveyed clearly that an application for review of the Delegate’s decision had to be given to the Tribunal within 28 days of, and including, 29 November 2017. As stated above, the 28th day was actually 26 December 2017, but because that fell on a public holiday, in fact the applicant had until 27 December 2017.
If one understands Perram J’s reasoning as imposing a requirement on the Department to identify clearly for the applicant by naming the last date upon which any review application must be made, then a failure to do so occurred in this case. However, Perram J found that the information given to the applicant in the notification letter in DFQ17 was piecemeal because it took place over three pages, was obscure and incomprehensible because of the complexities in being able to identify the last date upon which a review application could be lodged. In particular, Perram J stated that the notification letter in DFQ17 “did not state the matter in s.66(2)(d)(ii).”
Section 66(2)(d)(ii) of the Act requires that the notification of a decision to refuse an application must “state the time in which the application for a review may be made”.
The notification letter, dated 29 November 2017, stated “this time frame commences on the day on which you are taken to be notified of this decision and ends at the end of 28 days.”
In my view, that is compliance with s.66(2)(d)(ii) of the Act. There is no further calculation that an applicant need do other than identify 28 days from the 29 November 2017 to lodge his application for review. In DFQ17, because the notification letter was sent by post there are various “complexities” that an applicant must navigate in identifying the last date that a review application may be lodged. To my mind the first respondent’s submission that because the notification took place by way of email and because the notification letter clearly stated under “Review Rights” that the timeframe commences on the day on which the applicant is taken to have been notified and ends at the end of 28 days, the Tribunal did not fall into jurisdictional error in finding that it did not have jurisdiction to consider the applicant’s review application.
Accordingly, Ground 1 is not made out.
Ground 2
Ground 2 asserts that the Tribunal failed to give the applicant a meaningful opportunity to present arguments in support of his claims.
I asked the applicant what were the arguments which he was denied an opportunity to present. The applicant answered that when he submitted his application he had a visa and when he appealed he was rejected. That response does not in any way clarify the complaint in Ground 2.
In any event, on 23 January 2018, the Tribunal sent an email to the applicant’s nominated email address attaching a letter informing the applicant that his application was not valid because it was out of time and inviting the applicant to comment upon this. The applicant did not respond to the Tribunal’s letter.
The Tribunal’s decision record makes clear that the Tribunal found that the applicant was notified of the decision dated, 29 November 2017, and, in those circumstances, the applicant had until 27 December 2017 to lodge his review application. In circumstances where the review application was not lodged until 2 January 2018, the Tribunal found that it had no jurisdiction to review the decision. However, the Tribunal noted that it gave the applicant an opportunity to comment on whether the application lodged on 2 January 2018 was a valid application.
The Tribunal satisfied itself that the applicant had been duly notified of the decision on 29 November 2017, in accordance with s.494C of the Act and that the prescribed period to apply for review ended on 26 December 2017. However, the Tribunal noted that because that day was a public holiday, the applicant had until 27 December 2017.
In the absence of any response to the Tribunal’s letter dated 23 January 2018, the Tribunal handed down its decision on 14 February 2018 determining that it did not have jurisdiction to review the applicant’s review application.
In the circumstances, the applicant was given an opportunity to present any arguments in relation to the issue before the Tribunal, namely, whether the application before it was valid. The applicant failed to take advantage of that opportunity.
In the circumstances, the Tribunals determination that it did not have jurisdiction to consider the review application further was without error.
Accordingly, Ground 2 is not made out.
Ground 3
Ground 3 assert that the Tribunal ignored relevant considerations in making its decision.
I asked the applicant what were the relevant considerations that the Tribunal ignored. The applicant responded that he had submitted his documents after the due date.
As stated above, the applicant was given an opportunity to comment on the validity of his application and for whatever reason chose not to do so.
The applicant has otherwise not identified what relevant considerations the Tribunal ignored and none are apparent on the face of the Tribunal’s decision record.
Accordingly, Ground 3 is not made out.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 27 June 2019
8
6
4