CGJ16 v Minister for Immigration
[2017] FCCA 2686
•3 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CGJ16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2686 |
| Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeal Tribunal (Tribunal) that it did not have jurisdiction to review decision of delegate of Minister for Immigration and Border Protection not to grant applicant a Protection (Class XA) visa because the applicant applied for review more than 28 days after the day on which the applicant was notified of the delegate’s decision – Tribunal correctly concluded it has no jurisdiction to consider application for review – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.66(1), 412, 412(1)(b), 414(1), 414(2), 438, 494B, 494B(4), 494C, 494C(4) Migration Regulations 1994 (Cth), reg.2.16(3), 4.31, 4.31(2) |
| Cases cited: Aneja v Minister for Immigration and Border Protection [2014] FCA 572 Rahman v Minister for Immigration and Border Protection [2016] FCA 662 SZVHE & Ors v Minister for Immigration & Anor [2016] FCCA 2332 |
| Applicant: | CGJ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2211 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 26 October 2017 |
| Date of Last Submission: | 26 October 2017 |
| Delivered at: | Sydney |
| Delivered on: | 3 November 2017 |
REPRESENTATION
| Applicant in person assisted by an interpreter. |
| Solicitors for the Respondents: | Ms S Given of HWL Ebsworth Lawyers |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2211 of 2016
| CGJ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a citizen of the People’s Republic of China, seeks judicial review of a decision of the second respondent (Tribunal) that it did not have jurisdiction to review the decision of a delegate of the first respondent (Minister) not to grant to the applicant a Protection (Class XA) visa (Protection visa).
Background
On 6 April 2016 a delegate of the Minister refused to grant a Protection visa to the applicant. The delegate’s decision is notified in a letter dated 6 April 2016 from the Department of Immigration and Border Protection (Department) to the applicant. The letter is addressed to a Campsie address and encloses, amongst other things, a copy of the delegate’s “Protection Visa Assessment” dated 6 April 2016.[1]
[1] CB79-92
On 11 May 2016 the applicant telephoned the Department to inform it that he had changed his address. From the bar table the applicant, who is not legally represented, said he telephoned the Department after he returned to the address to which the letter dated 6 April 2016 had been sent, and was informed by a friend that a letter addressed to the applicant had been received, but the applicant’s friend told him that the letter had been returned. The applicant told me he sensed that the letter that was returned contained the delegate’s decision. The applicant also said that in his telephone conversation with the Departmental officer, he requested that a copy of the decision be sent to him.
Although it is not necessary to make any finding about this, what the applicant says is consistent with the file note recorded by an officer of the Department of the conversation with the applicant:[2]
[2] Exhibit SAHG1
Client called SSC re: change of address
Clients note indicate clients [sic] visa has been refused and the decision letter RTS to department.
By letter dated 12 May 2016 the Department sent to the applicant’s new address a copy of the letter dated 6 April 2016 and a copy of the “Protection Visa Assessment”.[3] The letter dated 12 May 2016 stated the following:
[3] CB94-95
Please find attached a COPY of the initial Notification of refusal of application for a Protection (subclass 866) visa which has now been sent to your new address as advised to the department on 11 May 2016.
Please note that the documentation was returned to the department as you did not collect the article which was sent via registered post.
The initial date of notification is as per theinitial [sic] letter, 6 April 2016.
. . .
Attached
Copy of Notification of refusal of application for a Protection visa
Copy of Notification of Protection visa Decision Assessment
Copy of Form 1026i
Copy of Protection visa interview CD
On 22 May 2016 the applicant applied to the Tribunal for review of the delegate’s decision. Attached to his application for review was a copy of the letter dated 12 May 2016 from the Department, a copy of the Department’s letter dated 6 April 2016, and a copy of the “Protection Visa Assessment”. In support of his application to the Tribunal, the applicant provided a submission titled “RE: Refusal of My application for Protection Visa (Subclass 866)” in which he stated (errors in original):
I contacted Immigration Department regarding my application status in May and I was told a decision has been made, but I still didn’t receive the letter. So I have asked them to resend the letter, then I just got it on 16th May.
I was really shock when I received the letter for refusal of my application for Protection Visa.
…
Please review my application and consider again.
By letter attached to an email sent on 7 June 2016 to the applicant, the Tribunal informed the applicant it was of the view that the application he lodged with the Tribunal was not a valid application because it was not lodged within the relevant time limit. The letter stated the time limit is 28 days from the day on which the applicant is taken to have been notified of the “primary decision”; that the primary decision was posted to the applicant on 6 April 2016 and that, on the basis that 15 April 2016 was the date on which the applicant was taken to have been notified of the decision, the last day for lodging the application for review was 13 May 2016. The letter further stated the application appeared to be out of time because it was not received until 22 May 2016, and invited the applicant to make any comments he wished to make in writing by 21 June 2016.[4]
[4] CB119-120
On 10 June 2016 the applicant responded to the invitation by email in which he stated (errors in original):
I didn’t receive the letter from immigration department in April. I called them in May and was told the decision about my application, so I asked them to re-post the letter to me, but unfortunately I still didn’t receive it. So I have to ask them to post it in the third time to my friend’s address, and I finally got it on 16th May.
You can check with immigration department, they should have the record.
Please advise how to get the decision reviewed, as it was not my fault.
Tribunal’s decision
The Tribunal was satisfied the applicant was notified of the delegate’s decision in accordance with the statutory requirements and that the refusal letter was sent, within three days of its date, to the last address provided by the applicant to the Minister. The Tribunal was satisfied the applicant was taken to have been notified of the letter seven working days from the date of the letter, notwithstanding the letter was sent by registered post and was not claimed by the applicant.[5]
[5] CB127, [7]
The Tribunal noted it had no discretion in relation to the matter and found the applicant was, in accordance with s.494C of the Migration Act 1958 (Cth) (Act), taken to have been notified of the delegate’s decision on 15 April 2016; that the prescribed period within which the review application could be made ended on 13 May 2016; and, therefore, the Tribunal had no jurisdiction in the matter because the application for review was not received by the Tribunal until 22 May 2016.[6]
[6] CB127-128, [8]-[9]
Grounds of review
The application filed by the applicant in this Court on 16 August 2016 contains the following ground of application (errors in original):
The AAT’s online application for review requests the documents from immigration department regarding the result for my visa application. So I thought I can only apply for the review after I receive the letter.
As I mentioned I only received the refusal letter from IMMI on 16th May, and I took 5 days to get all documents ready for the review and lodged the application on AAT’s website on 22nd May, I had tried my best to get the documents ready as soon as possible.
Regarding the refusal of my protection visa application, even Catholic has been accepted in China officially, but I am from countryside, the people’s mind is not so open and they still can’t accept it. That’s why the town government forbids people to believe Catholic, so I have to leave China and come to Australia to find protection.
The applicant did not wish to make any submission in relation to this ground. He did, however, make submissions, and I will consider these later in these reasons.
This ground makes two claims. The first is that the applicant did not receive notice of the delegate’s decision until 16 May 2016. The second claim refers to people in the countryside in China not having open minds about Christianity.
Ground relying on date of actual receipt of delegate’s decision
This part of the ground assumes that the relevant date for calculating the time by which the applicant was required to apply for review of the delegate’s decision is the date on which the applicant received actual notice of the decision. That assumption is incorrect. To see why that is so it is necessary to refer to provisions of the Act and the Migration Regulations 1994 (Cth) (Regulations) that deal with the time at which a person is taken to have been notified of a decision.
Statutory provisions
There is no issue that the delegate’s decision in this case not to grant the applicant a Protection visa was a Part 7-reviewable decision. Subsection 414(1) of the Act provides that, subject to s.414(2), if a valid application is made under s.412 for review of a Part 7-reviewable decision, the Tribunal must review the decision. Relevant to the case before me is s.412(1)(b) of the Act which provides that an application for review of a Part 7-reviewable decision must be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision. The period for making an application for review of a Part 7-reviewable decision has been prescribed by reg.4.31 of the Regulations. Relevant to the case before me is reg.4.31(2) of the Regulations which provides that, 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.
Subsection 66(1) of the Act provides that, 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. The manner of notification for the purposes of s.66(1) of the Act has been prescribed by reg.2.16(3) of the Regulations. It provides that the Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in s.494B of the Act. Relevant to the case before me is the method specified by s.494B(4). That permits the Minister to date the document and then dispatch it within 3 working days (in the place of dispatch) of the date of the document, by prepaid post or by other prepaid means, and, relevant to the circumstances of the applicant in this case, to the last residential address provided to the Minister by the recipient for the purposes of receiving documents.
Finally, it is necessary to refer to s.494C(4) of the Act which specifies when a person is taken to have received a document that the Minister has given by the method specified in s.494B(4); and that is 7 working days after the date of the document where the document was dispatched from a place in Australia to an address in Australia.
It will be seen that the date on which an applicant will be taken to have received a document is not the date on which the applicant becomes aware of the document. It depends on the method by which the Minister or his delegate has communicated the document to an applicant. In the case before me, the delegate elected to notify the applicant by post. The questions I must determine are whether, on the evidence before me, the delegate’s decision was in fact communicated by post in the manner authorised by s.494B(4) of the Act and, if so, the date on which the applicant is taken to have received the decision.
Posting and receipt of decision
The delegate’s decision is recorded in a document titled “Protection Visa Assessment”.[7] There is in evidence a copy of a letter dated 6 April 2016 stating that the applicant’s application for a Protection visa has been refused and attaching the delegate’s decision record. It is addressed to the applicant and it nominates an address in Campsie.[8] In the form of application for a Protection visa which the applicant completed, the applicant gave as his residential and postal address the same address at Campsie (Notified Address). There is also in evidence the following:
a)A copy of the front of an envelope addressed to the applicant at his Notified Address. That has affixed to it a “Registered Post Prepaid Label” which includes an “AP Article ID” number.[9]
b)A document which appears to be a business record dated 6 April 2016 issued by Australia Post titled “Domestic contract mailing statement”. Under the heading “Customer details” there is written “DIBP LVL 3, 26 Lee St Sydney NSW 2000”, and under the heading “3. Letters within Australia – Regular delivery”, numbers are written next to printed words which I infer signifies the number of letters that were collected for posting.[10]
c)What is described in the affidavit of Ms Crawford as “DIBP Postal Log of documents sent on 6 April 2016”.[11] That document is divided into columns and rows and provides details of dates, numbers, names, and addresses. All of the names on the log, except the name of the applicant, have been redacted. The number that is in the column next to the applicant’s name includes the AP Article ID number in the “Registered Post Prepaid Label”.
d)A document that appears to be a copy of the front of the envelope with the same Registered Post Prepaid Label and AP Article ID number to which I have already referred in (a) and which contains a “return to sender” stamp.[12]
e)A screenshot from the Department’s computer records titled “Client Contact List” which indicates that the Notified Address was first notified to the Department as the applicant’s address on 30 June 2015 and that he notified the Department of a different address on 5 May 2016.[13]
[7] CB83-92
[8] CB79-81
[9] CB78
[10] Affidavit of K M Crawford, annexure “A”
[11] Affidavit of K M Crawford, annexure “B”
[12] CB93
[13] Affidavit of K M Crawford, annexure “D”
On the basis of this evidence, I am satisfied that:
a)on 6 April 2016 the delegate caused to be dispatched by post on that day the letter dated 6 April 2016 notifying the applicant of the delegate’s decision not to grant the applicant a Protection visa, together with the document titled “Protection Visa Assessment”;
b)the letter was dispatched to the Notified Address;
c)at the time the letter dated 6 April 2016 was despatched, the Notified Address was the last residential address the applicant provided to the Minister for the purposes of receiving documents.
The consequence of these findings is that the applicant is taken to have received the delegate’s letter dated 6 April 2016 seven working days after the date of its dispatch on 6 April 2016. That date is 15 April 2016. That, in turn, means the prescribed period for making an application for review of the delegate’s decision ended on 13 May 2016.
The applicant applied to the Tribunal on 22 May 2016 which is outside the prescribed period by which the applicant was required to apply for review of the delegate’s decision. The Tribunal, therefore, was correct to conclude the applicant’s application for review was not a valid application and, therefore, had no jurisdiction to determine the review.
Matters noted by Minister
In his written submissions the Minister addressed four matters. The first concerned the effect of provisions of the Act and Regulations, to some of which I have already referred. The Minister submitted the provisions operate without qualification and deem receipt of a document even when the document has been returned undelivered.[14] That submission correctly records the effect of authorities on which the Minister relies.[15]
[14] First Respondent’s Outline of Submissions, [22]
[15] The Minister relies on the judgment of Logan J in Aneja v Minister for Immigration and Border Protection [2014] FCA 572 at [21]
The second matter the Minister addressed in his written submissions relates to the Department’s having sent to the applicant’s newly notified address a copy of the delegate’s decision. The Minister submitted that this letter could not be regarded as a second notification.[16] That submission, too, is correct. In Minister for Immigration and Border Protection v ASE15, in circumstances similar to those before me, it was contended before a judge of this Court that the Department’s sending to a newly notified address a copy of a delegate’s decision that had been sent to a previously notified address constituted a second notification of the delegate’s decision. The Full Federal Court concluded the primary judge erred.[17] The Full Court said:[18]
The simple fact that the 16 February 2015 communication was sent after the telephone call of 4 February 2015 is not, in our opinion, a proper basis upon which to characterise the re-sent letter as a “second notification”, as the primary judge did. Nor is the fact that the further communication of 16 February 2015 did not inform the first and second respondents “that there had already been an effective notification by operation of the terms of the statute and the earlier letter sent on 14 January 2015”, as the primary judge found at [11] of his reasons for decision. There is nothing in the facts found upon which to fairly base a finding that the Minister had withdrawn the 14 January 2015 notification and was intending to give a second or additional notification.
The true position is that the letter dated 14 January 2015 was re-sent to the first respondent and by its terms made it clear that the period in which the first and second respondents were able to lodge a merits review application with the RRT was to be calculated from the date of that letter, not from some other date, such as 4 February 2015 (when the phone call was received) or 16 February 2015 (when the resent letter was received).
[16] First Respondent’s Outline of Submissions, [23]
[17] [2016] FCAFC 37
[18] [2016] FCAFC 37 at [31] and [32]
What the Full Court said in this passage applies to the letter the Department sent on 12 May 2016. As I have already noted, the letter stated that “[t]he initial date of notification is as per theinitial [sic] letter, 6 April 2016”.
The third matter the Minister addresses in his written submissions arises from the fact that, in his form of application for a Protection visa, the applicant provided an email address,[19] and the giving of a document by email is one of the methods permitted by s.494B of the Act. I accept the Minister’s submission that the Act does not require the Minister to utilise all or a combination of the methods provided for in s.494B of the Act, but that the obligation is to use one of those methods.[20]
[19] CB19
[20] SZVHE & Ors v Minister for Immigration & Anor [2016] FCCA 2332 at [63] (Judge Nicholls); First Respondent’s Outline of Submissions, [24]
The fourth matter the Minister addresses relates to the question contained in the prescribed form of application for a Protection visa whether the applicant agreed to the Department communicating with the applicant by fax, email, or other electronic means, and the statement that “[e]lectronic communication is the department’s preferred method of communication”.[21] The Minister referred to a number of authorities which have held that an applicant’s agreeing to the Department communicating by email did not prevent the Department from electing to communicate by the other methods provided for by s.494B of the Act.[22] One of the authorities on which the Minister relies is the judgment of Robertson J in Rahman v Minister for Immigration and Border Protection where his Honour said:[23]
Although in the present case the appellant also gave an email address to the Department, this did not mean that the Minister did not effect the giving of the letter to the appellant when it was sent by prepaid post to the last residential address provided to the Minister by the recipient for the purposes of receiving documents: see s 494B. In Minister for Immigration and Border Protection v Kim [2014] FCA 390; 220 FCR 494 at [34]–[47], Buchanan J held that notification of the refusal of a visa by post under s 494B(4)(c) was effective despite the applicant having provided an email address when asked whether she agreed to the Department communicating with her by fax, e-mail or other electronic means. In so stating, Buchanan J followed Haque v Minister for Immigration and Citizenship [2010] FCA 346; 221 FCR 289 at [64]. Those decisions were followed in Radzi v Minister for Immigration and Border Protection [2014] FCA 626; 143 ALD 124 at [33]–[35] and, more recently, in Pathania v Minister for Immigration and Border Protection [2015] FCA 1262.
[21] CB19
[22] First Respondent’s Outline of Submissions, [25]
[23] [2016] FCA 662 at [21]
In my opinion, the reasoning of his Honour applies to the circumstances of the case before me.
Ground relying on attitude of rural people to Catholicism
The second claim stated in the ground of application discloses no jurisdictional error by the Tribunal. The claim purports to take issue with the delegate’s decision on the merits of the applicant’s claims for Protection.
438 certificate
The Minister has brought to the Court’s attention a certificate that had been issued purportedly pursuant to s.438 of the Act. The Minister accepts the certificate is invalid. Ms Given, who appeared for the Minister, informed me the Minister brought to the Court’s attention the certificate, not because it was relevant to the issue of whether the Tribunal had jurisdiction to consider the applicant’s application for review of the delegate’s decision – the Minister submitted the certificate was irrelevant – but because the certificate covered two documents which were relevant or, at least potentially relevant to the issues raised by the applicant’s claims. The first document is an inter-departmental email chain with a Service Centre post lodgement enquiry regarding the applicant's change of address in May 2016. It includes a file note of the conversation the applicant had with an officer of the Department on 11 May 2016 to which I have already referred. As should be apparent by now, I admitted the document into evidence. The other document is a “Disclosure Decision Checklist” which states it is “to be completed at the time of making the AAT reviewable decision”. That document is dated 6 April 2016.
I accept the Minister’s submission that the issuing of the invalid certificate is irrelevant to whether the Tribunal has jurisdiction to consider the applicant’s application for review. Whether or not the Tribunal has jurisdiction is a jurisdictional fact which this Court has authority to decide. I have concluded the Tribunal was correct to conclude it does not have jurisdiction to determine the applicant’s application for review. Thus, even if the Tribunal had acted on the invalid certificate in some way, that could not affect my conclusion that the Tribunal does not have jurisdiction. In any event, given that the Tribunal only concerned itself with the question of its jurisdiction, I am not satisfied the Tribunal acted on the certificate in any way.
Applicant’s submissions
At the hearing before me the applicant made some general submissions to the effect that, while waiting for this matter to come on for hearing, he has been denied human rights, and that he has developed depression. These submissions are not relevant to whether the Tribunal has jurisdiction to consider the applicant’s application for review.
The applicant, at least as I understood him, made submissions to the effect that, when he telephoned the Department on 11 May 2016 and asked that he be sent the delegate’s decision, the Tribunal should have explained to the applicant the time by which he could apply to the Tribunal for review of the delegate’s decision. I do not accept that submission. There is no suggestion in the evidence or from what the applicant said to me from the bar table that, at the time he telephoned the Department, the applicant informed the Department he intended to apply, or was considering applying, to the Tribunal for review of the delegate’s decision. In those circumstances it is difficult to see how the Departmental officer who took the applicant’s call could reasonably have supposed the applicant intended to apply for review and, therefore, ought to have informed the applicant of the time by which the applicant should apply for review.
Even if, during the telephone conversation on 11 May 2016, the Department, in some way, came under a duty to inform the applicant of the prescribed period for making an application for review to the Tribunal, or of the date from which the prescribed period for making such an application commenced, and the Department breached that duty, that would not alter the fact that the Tribunal does not have jurisdiction to entertain the applicant’s application for review. By 15 April 2016 the applicant had been notified of the delegate’s decision. Nothing the Departmental officer may have said or not have said during the conversation the applicant had with that officer on 11 May 2016 could have altered the fact that the applicant had been notified of the delegate’s decision on 15 April 2016 and that the time for calculating the prescribed period for applying to the Tribunal for review of the delegate’s decision started to run on that day.
Disposition
The Tribunal was correct to conclude it does not have jurisdiction to consider the applicant’s application for review of the delegate’s decision not to grant the applicant a Protection visa. I propose, therefore, to order that the application be dismissed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 3 November 2017
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