CJQ23 v Minister for Immigration and Multicultural Affairs (No 2)
[2024] FedCFamC2G 1064
•18 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CJQ23 v Minister for Immigration and Multicultural Affairs (No 2) [2024] FedCFamC2G 1064
File number(s): SYG 1590 of 2023 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 18 October 2024 Catchwords: MIGRATION – practice and procedure – application for review of Registrar’s orders summarily dismissing an application for judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) that it did not have jurisdiction to consider an application for review the applicant filed in relation to a decision a delegate of the Minister made refusing to grant the applicant a protection visa – whether it was reasonably arguable that the Tribunal has jurisdiction – application for review dismissed and the Registrar’s decision affirmed. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth), ss 254(1), 256(1),(2)
Migration Act 1958 (Cth) ss 66(1), 67(1), 411, 412, 414(1), 494B(5), 494C(5)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.13(a), item 58 of table to r 21.01, 21.02(1),(2), r 21.04,
Migration Regulations 1994 (Cth), regs 2.16(3), 4.31(2)
Cases cited: Conlan v Mladenis [2007] FCA 1129
Harris v Caladine [1991] HCA 9, at [27]; (1991)172 CLR 84
Division: General Number of paragraphs: 31 Date of hearing: 15 October 2024 Place: Sydney The Applicant: Appeared in person, by video Solicitor for the First Respondent: Mills Oakley Lawyers The Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1590 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CJQ23
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
18 OCTOBER 2024
THE COURT ORDERS THAT:
1.Pursuant to r 21.02(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) the time for making an application for review is extended up to and including 7 August 2024.
2.The application for review of the Registrar’s orders made on 9 February 2024 is dismissed.
3.The orders the Registrar made on 9 February 2024 are affirmed.
4.The applicant pay the first respondent’s costs set in the amount of $800.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The applicant applies for the review of an order made by a Registrar of this Court on 9 February 2024 pursuant to r 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) dismissing an application for judicial review of a decision made by the second respondent (Tribunal).[1] By its decision, the Tribunal decided it did not have jurisdiction to hear an application for review of a decision of a delegate of the first respondent (Minister) made on 24 March 2023 not to grant the applicant a Protection (subclass 866) visa (Protection visa). The Tribunal decided it did not have jurisdiction because it found the applicant did not apply for a review of the delegate’s decision within the time prescribed by reg 4.31(2) of the Migration Regulations 1994 (Cth) (Regulations).
[1] The Tribunal was in effect abolished by item 1 of Schedule 17 to the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth) (Transition Act). Item 25 of Schedule 16 to that Act provides that where there is a proceeding in a court that relates to a decision of the Tribunal that has not been finalised by “the transition time”, anything the court could have done in relation to the Tribunal may be done in relation to the Administrative Review Tribunal which has been established by the Administrative Review Tribunal Act 2024 (Cth) (ART Act). “Transition time” is defined in the Transition Act as the time the last-mentioned ART Act commences.
The Registrar made the order on 9 February 2024 pursuant to the powers delegated to Registrars under item 58 of the table to r 21.01 of the GFL Rules. The rule delegating the power was made pursuant to s 254(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFC Act). A consequence of the Registrar having made the order pursuant to delegated authority is that s 256 of the FCFC Act applies to the order the Registrar made, subsections (1) and (2) of which are as follows:
(1)A party to proceedings in which a delegate has exercised any of the powers of the Federal Circuit and Family Court of Australia (Division 2) under section 254 may:
(a) within the time prescribed by the Rules of Court; or
(b) within any further time allowed in accordance with the Rules of Court;
apply to the Court for review of that exercise of power.
(2)The Federal Circuit and Family Court of Australia (Division 2) may, on application under subsection (1) or on its own initiative, review an exercise of power by a delegate under section 254, and may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised.
The time for applying for a review of a Registrar’s orders is prescribed by r 21.02 of the GFL Rules, which provides:
(1)For the purposes of subsection 256(1) of the Act, an application for review of the exercise of a power by a Registrar must be made within 7 days.
(2)The time prescribed by subrule (1) may be extended in a proceeding:
(a)by the Court or a Registrar on any terms that the Court or Registrar thinks fit; or
(b)with the consent of the parties to the proceeding.
The applicant lodged for filing her application for review on 4 August 2024, some six months after the Registrar made his order. The applicant, who was not represented, but who appeared with the assistance of an interpreter, said she was late with filing her application because she could not afford the filing fee. The Minister submitted the application for review was incompetent because the applicant has not applied for an order extending the time by which she may apply. The Minister, however, did not oppose the Court making an order extending the time if the Court were minded to do so.
Rule 21.04 of the GFL Rules deals with the procedure on review. Subrule 21.04(1) provides that “the review of an exercise of power by a Registrar must proceed by way of a hearing de novo”. The nature of a “hearing de novo” has been explained by a number of judges. In Caladine Dawson J said:[2]
An order made by a Registrar is reviewable by way of a hearing de novo. That means that the court reviewing the order begins afresh and exercises for itself any discretion exercised below by the Registrar. The parties commence the application again, subject to any restrictions in the rules upon the calling of evidence or provisions relating to the use before the court of evidence called before the Registrar. A hearing de novo involves the exercise of the original jurisdiction and “the informant or complainant starts again and has to make out his case and call his witnesses”.
[2] Harris v Caladine [1991] HCA 9, at [27]; (1991)172 CLR 84, at page 124
In Conlan v Mladenis, Sundberg J said: [3]
An applicant for review under [s 256(2)] is under no obligation to demonstrate error on the part of the Registrar, and does not need to establish that the Registrar’s exercise of discretion miscarried in the sense described in House v The King (1936) 55 CLR 499 at 505: Pattison v Hadjimouratis [2006] FCAFC 153 at [153]- [154]. The [judge to whom an application for review is made] must exercise any discretion on the material before him or her unaffected by how the Registrar may have exercised the discretion.
[3] Conlan v Mladenis [2007] FCA 1129, at [5]
In these reasons for judgment, therefore, I consider whether, as the Minister submits, the applicant does not have reasonable prospects of successfully prosecuting her application for judicial review of the Tribunal’s decision that it did 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 will first set out the relevant background; and then describe what occurred at the hearing before me.
BACKGROUND
The applicant is a citizen of Malaysia who arrived to Australia on 30 August 2019 as the holder of a Visitor (Subclass 600) visa. The applicant lodged an application for a Protection visa on 21 November 2019 in which she claimed fear of persecution based on her sexuality. [4]
[4] First respondent’s submissions, 20.12.2023, [4]-[5]
The applicant did not, in the form by which she applied for a Protection visa, appoint a representative; and the applicant indicated that she agreed to the Department communicating with her to the email address the applicant provided (nominated email address). The applicant sent emails to the Department from the nominated email address on 23 January 2020,[5] 3 October 2022,[6] and 16 October 2022.[7]
[5] CB 42
[6] CB 43-50
[7] CB 51-53
On 24 March 2023 a delegate of the Minister decided to refuse to grant the applicant a Protection visa. On that day the Department sent to the nominated email address a letter dated 24 March 2023 attaching the delegate’s decision record.[8] In the letter, under the heading “Review rights”, the following is stated:[9]
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 decision must be given to the AAT within the period of 28 calendar days, commencing on the day you are taken to have received this letter.
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.
The time mentioned above in which you may apply to the AAT for merits review of this decision is prescribed by law and cannot be extended.
[8] CB 56-67
[9] CB 56-57
On 27 April 2023 the applicant completed and signed a form prescribed by the Tribunal titled “Application for review – Refugee”; and the applicant posted the completed and signed form to the Tribunal, which the Tribunal received on 28 April 2023.[10] The applicant included the nominated email address in her contact details.
[10] CB 68-80
On 15 August 2023 the Tribunal sent an email to the nominated email address attaching a letter in which the Tribunal noted that it appeared the applicant’s application for review was not a valid application for review because it was not lodged within the time provided for by reg 4.31(2) of the Regulations. After providing further details, including the fact that the delegate’s decision was emailed to the applicant on 24 March 2023, the Tribunal invited the applicant to make any comments on the validity of her application for review by 29 August 2023.[11] The applicant responded on 28 August 2023 with the following email (errors in original):[12]
Thank you for your consideration to invite me for comment regarding my case.
My main cases or reason as I stated that I am a LGBT community. Was risen from my terrible marriage and broken life then here i am still try to stand and dealing with my situation.
As we know, some situations or happens is out of our jurisdiction,sometimes it's happen without i can control, for example the internet error or some electronic devices failure. In my situation,My phone was hang or errors went that time I cant operate any apps or website including my email and whatsApp. Yes,its very rare happen to anybody. So, in my cases I'm hoping your kindness,your consideration and a little help to track me back in the line for my case. Because if that time I received the email without any errors or device or internet failure,I will to do so much in for my case,
Once again sir/Mdm, I just hope a little light a little chance but very big meaning for me,
I’m only human after all,
[11] CB 89-90
[12] CB 91
On 7 September 2023 the Tribunal decided that the applicant was taken to have been notified of the delegate’s decision not to grant her a Protection visa on 24 March 2023; that the period prescribed by reg 4.31(2) of the Regulations by which the applicant could have applied for review of the delegate’s decision had expired on 20 April 2023; but the applicant did not apply for review by 20 April 2023. The Tribunal, therefore, concluded it did not have jurisdiction.[13]
[13] CB 95-97
PROCEEDING IN THIS COURT
The applicant filed an application with this Court on 9 October 2023 in which she stated the following grounds of application (errors in original):
AAT member’s should stand for me to affirmation my case that something can happen with any Internet connection or technology errors or failure and out of our Jurisdiction that can make misstatement and miss to take action for replying emails.
The Department of Home Affairs should give a second opinion or chance because is out of Human control if some Internet errors or technology errors and failures to operate promptly.
Troubleshooting, failure mode, malfunction technology system on e-mail that users not able to control the time of the incident, for example where certain State Department departments cannot anticipate the incident exactly and need time to repair or search or resubmit. So in this context I’m also a victim of technology and need to be given a chance to retrieve my cases on my Visa status as a LGBT.
Because of that happens, I am unable to addressing the main problem of the visa to AAT And the Department of Home Affair should be able to accept the circumstances beyond human control over technoloqy.
The Department of Home Affairs should give me another opportunity to put back my case in track because the technology errors or failure is not my under control.
On 25 October 2023 the Minister filed a response in which he claimed that the applicant does not have reasonable prospects of succeeding on her claim for relief, and stated that the Minister seeks an order that the application be dismissed pursuant to r 13.13 of the GFL Rules. This resulted in the Registrar hearing the Minister’s application for summary dismissal and, on 9 February 2024, making an order for summary dismissal.
On 4 August 2024 the applicant lodged for filing an application for review of the Registrar’s decision, which was accepted for filing on 7 August 2024. On 9 and 14 August 2024 I made directions for the filing of evidence and submissions, and on 14 August 2024 I set the application for hearing on 15 October 2024.
THE HEARING
The hearing was conducted by video. The applicant was not legally represented, but she was assisted by an interpreter in the Malay language. Mr Knuckey appeared for the Minister.
I explained to the applicant the purpose of the hearing, noting that the principal issue I was required to decide was whether the Tribunal was correct in concluding it did not have jurisdiction because the applicant had applied to the Tribunal for review outside the time permitted by the relevant regulations. I also explained the procedure that was to be followed. The applicant then identified the material on which she intended to rely, being the three affidavits she filed in the course of the proceeding. After Mr Knuckey identified the material on which the Minister relied, which included a court book that included the material relating to the applicant’s application for a Protection visa, and her purported application for review to the Tribunal, I invited the applicant and Mr Knuckey to make oral submissions.
The applicant requested that I grant her work rights because she needed to support her mother’s medical bills, and her two children; and that she needed to work to pay legal costs she had been ordered to pay. In response to my informing the applicant that I do not have power to grant or refuse the granting of a visa, but that my role regarding this application was to determine whether the Tribunal was correct in concluding it did not have jurisdiction to consider the applicant’s application for review, the applicant said she posted her application for review, and the Tribunal received her application on 28 April 2023. The applicant also said that she had stopped using the nominated email address because it was blocked, and she started using a different email address.
DETERMINATION
The principal question I must decide is whether the Tribunal was correct in deciding it did not have jurisdiction to consider the applicant’s application for review because the applicant lodged the application outside the period permitted by the Regulations. More accurately, the question is whether the applicant has no reasonable prospects of succeeding on her claim for review of the Tribunal’s decision that it did not have jurisdiction to consider the applicant’s application for review.
The Tribunal had jurisdiction to review a “Part 7-reviewable decision”, being one of the decisions identified in s 411 of the Migration Act. The Tribunal had such jurisdiction, however, in the circumstances stated in s 414(1) of the Migration Act; that is, there had to be a “valid application” that was “made under section 412 for review of a Part 7-reviewable decision”. Section 412 specified the conditions that an application for review of a “Part 7-reviewable decision” had to satisfy. These included that an application in the approved form had to “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 giving an application to the Tribunal is prescribed by reg 4.31(2) of the Regulations in relation to persons who are not in immigration detention. Reg 4.31(2) provides that, for the purposes of s 412(1)(b) of the Migration Act as it then was, “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 next thing to consider is when a person is taken to be “notified”. The starting point is s 66(1) of the Migration Act, which requires the Minister to notify an applicant for a visa of the decision to grant or not to grant a visa “in the prescribed way”. Reg 2.16(3) of the Regulations provides that the Minister “must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act”. That necessarily requires the Minister to convey a document (or the contents of a document) that records the Minister’s decision to grant or to refuse to grant a visa. That is so because s 67(1) of the Migration Act provides that the Minister’s decision to grant a visa, and a Minister’s decision to refuse to grant a visa, “are taken to be made by the Minister causing a record to be made of the decision”.
One of the methods for notifying a decision to grant or to refuse to grant a visa is that specified in s 494B(5) of the Migration Act to transmit a document by (among other means) email to the last email address provided to the Minister “for the purposes of receiving documents”. If the Minister gives a document by transmitting the document by email then, under s 494C(5) of the Migration Act, “the person is taken to have received the document at the end of the day on which the document is transmitted”.
I am satisfied that on 24 March 2023 a delegate of the Minister made a decision refusing to grant the applicant a Protection visa by causing to make a record of that decision; the delegate’s decision refusing to grant the applicant a Protection visa was a Part 7-reviewable decision, within the meaning of s 411(1)(c) of the Migration Act; the applicant was not in immigration detention at the time the delegate made the decision; and the delegate notified the applicant of the decision by transmitting the record of the decision on 24 March 2023 to the nominated email address, being the last email address the applicant provided to the Minister for the purpose of receiving documents. That means that, by the operation of s 494C(5) of the Migration Act, the applicant is taken to have been notified of the delegate’s decision to refuse to grant the applicant a Protection visa on 24 March 2023 which, in turn means that, as provided for by reg 4.31(2) of the Regulations, the applicant could only have given a valid application to the Tribunal for review of the delegate’s decision by 20 April 2023, being the end of the 28 day period commencing on 24 March 2023.
It follows, therefore, that the applicant does not have reasonable prospects of succeeding on a claim that the Tribunal has jurisdiction to review the delegate’s decision refusing to grant the applicant a Protection visa. On the contrary, there can be no doubt that the Tribunal does not have such jurisdiction.
In her affidavit of 15 July 2024, the applicant submitted that the Tribunal’s assessment was unfair. Whether the Tribunal has jurisdiction to consider the applicant’s application for review does not turn on any question of fairness. The Tribunal’s jurisdiction, in the circumstances of this case, solely turns on whether the applicant gave an application to the Tribunal for the review of the delegate’s decision within the period provided for by reg 4.31(2). As I have already found, the applicant does not have reasonable prospects of succeeding on a claim that the Tribunal has jurisdiction.
At the hearing, I understood the applicant to have suggested that it was due to her not having access to her email that accounted for her not applying to the Tribunal earlier than she did. Even if that be the case, there is no evidence, and the applicant does not suggest, that the applicant provided to the Department an email address by which the Department could communicate with the applicant that is different to the nominated email address, or that the applicant informed the Department of some other method by which the Department could communicate with the applicant.
EXTENSION OF TIME
Given that I have examined the merits of the application for review, I am satisfied that it would be appropriate to make an order extending the time by which the applicant may apply for a review of the Registrar’s orders up to 7 August 2024.
COSTS
The Minister applied for an order that the applicant pay the Minister’s costs, and that those costs be set in the amount of $800. I explained to the applicant that the usual rule is that an unsuccessful party pays the legal costs of the successful party; and I asked the applicant whether there was any reason why the usual rule should not apply in this case. The applicant said she had been told that if she does not pay the legal costs she had been ordered to pay, she will lose her visa; and the applicant repeated her request that I grant her work rights.
The Court does not have any power to confer work rights on any person; and the applicant’s having been ordered to pay costs in the past is no reason for my not ordering costs against the applicant. I consider that it is appropriate that I order the applicant to pay the Minister’s costs.
DISPOSITION
The applicant does not have reasonable prospects of successfully prosecuting her claims for relief. I therefore propose to dismiss her application for review and affirm the Registrar’s orders. I also propose to order that the applicant pay the Minister’s costs set in the amount of $800.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 18 October 2024
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