Cod17 v Minister for Immigration

[2017] FCCA 2619

FEDERAL CIRCUIT COURT OF AUSTRALIA

COD17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2619

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.66, 412, 494B, 494C
Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13
Migration Regulations 1994 (Cth), regs.2.16, 4.31

Cases cited:
Calimoso v Minister for Immigration and Border Protection [2016] FCA 1335
DZAFH v Minister for Immigration and Border Protection [2017] FCCA 387
DZAFH v Minister for Immigration and Border Protection [2017] FCA 984

Applicant: COD17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1820 of 2017

Judgment of: Judge Emmett

Hearing date: 27 October 2017

Date of Last Submission: 27 October 2017

Delivered at: Sydney

Delivered on: 27 October 2017

REPRESENTATION

Applicant appeared in person with the assistance of Mandarin interpreter

Solicitor for the Respondents: Ms Jennifer Strugnell
Minter Ellison

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1820 of 2017

COD17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 13 June 2017, the applicant filed an application in this Court seeking judicial review of a decision of the Administrative Appeals Tribunal dated 19 May 2017 (“the Tribunal”). The Tribunal found that it had no jurisdiction to consider the applicant’s application for review of a decision of a delegate of the first respondent (“the Delegate”) refusing the applicant a protection visa.

2. The applicant was unrepresented this morning although had the assistance of a Mandarin interpreter. The applicant confirmed that she had attended a directions hearing before a registrar of this Court on 14 September 2017.

3. At that directions hearing, the applicant was given leave to file and serve an amended application, any further evidence and submissions in support of her application. The applicant was also provided with the contact details of legal services providers and translating and interpreting services in documents headed in her own language.

4. I note that at the directions hearing, the applicant had both the assistance of an interpreter and a Justice Connect volunteer legal assistant. The applicant confirmed that she had not filed any further documents either in accordance with those directions or otherwise.

5. I explained to the applicant that the role of this Court is very different to that of the Tribunal. I explained that the only issue before this Court was whether or not the decision of the Tribunal was made according to law. I explained that it was not for this Court to reconsider her claims and make different factual findings or reach different conclusions and that the Court has no power to interfere with the decision of the Tribunal unless the Court is satisfied that the Tribunal’s decision is affected by a mistake that goes to the Tribunal’s jurisdiction. I also explained that disagreement with the findings and conclusions of the Tribunal rarely by itself establishes such a mistake.

6. At the directions hearing, at the request of the first respondent the matter was listed today for a hearing pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) on the basis that the applicant’s application did not raise an arguable case for the relief sought. 

7. Rule 44.12 of the Rules provides as follows:

   “(1)  At a hearing of an application for an order to show cause, the Court may:

   (a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

8. Relevantly, r.44.13 of the Rules provides:

   “(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

9. I asked the applicant if she continued to rely on the grounds of her initiating application.

10. However, the applicant preferred to have the interpreter read submissions that she had made in relation to her application. Those submissions were essentially that the Tribunal did not consider her fear of harm in Malaysia in accordance with the law; that the Tribunal did not consider that she was at risk of persecution in Malaysia; that the country information relied on by the Department of Immigration and Border Protection (“the Department”) was selective in that it left out information that may have assisted the applicant; and, that the Tribunal did not give her the opportunity to attend the hearing.

11. The factual background of this matter is accurately summarised in the first respondent’s written submissions as follows:

    “ B FACTUAL BACKGROUND

    5. The applicant is a citizen of Malaysia, who arrived in Australia on 27 May 2016 on a Student (Temporary) (Class TU) (subclass 572) visa. The applicant applied for a protection visa on 15 September 2016 (Court book (CB) 1–37), claiming to fear harm from loan sharks and her former husband (CB 39–40). In response to question 41 of Form C of that application, the applicant provided an email address ([email protected]) and checked a box indicating she consented to the Department communicating with her by email (CB 17).

    6. On 21 March 2017, a delegate of the Minister for Immigration and Border Protection (the delegate) refused to grant the applicant a protection visa (CB 52–70). A record of that decision was emailed to the applicant at [email protected] (CB 52).

    7. On 25 April 2017, the applicant sought review of the delegate's decision before the Tribunal (CB 71–72).

    8. By letter dated 1 May 2017, the Tribunal advised the applicant that it had formed the preliminary view that her application for review was not lodged within the relevant 28 day time limit for seeking review and invited her to comment on the validity of the application (CB 82–83).

    9. On 3 May 2012, the Tribunal received an email from the applicant attaching an unsigned statement in which she claimed she did not receive the delegate's decision until 25 April 2017 as her internet did not work properly and she seldom checked her emails. She further stated that she was not invited to an interview with the delegate, and she was expecting to receive the decision by post (CB 84–85).

12. The grounds of the applicant’s application as disclosed in her initiating application, filed on 13 June 2017, are as follows:

    “Grounds of application

    1. The AAT unfairly ignored my well-founded fear of persecution in Malaysia. Now the loan shark is looking for me,there is a real risk that I will suffer significant harm if come back to China.

    2. The AAT did not follow the law to consider whether there was a substantial ground for believing that, as a necessary and foreseeable consequence of my being removed from Australia to Malaysia, there would be a real risk that I would suffer significant harm. The country information mentioned in the refusal letter from DIBP is government official information. Obviously, Malaysia government would hide the unfavorable information to prevent social unrest. Also, the letter from DIBP said that I can relocate within Malaysia. But I have stated the fact in my statement that the loan shark is very powerful with network in Malaysia. They had found me in my workplace before. Therefore, wherever I go, they will find me, and I will suffer significant harm then.

    3. The Department of Immigration and AAT did not offer me the opportunity of interview, which is required by the law. DIBP didn't invite me to attend the hearing. They refused my application without hearing. AAT refused my application since I didn't lodge the application on time. But I believe that AAT should give me the opportunity to appeal to AAT. Firstly, I lodged the application to DIBP in 9/2016. I don't know the time frame for processing my application. I have been waiting more than half year. My internet didn't work properly, so I seldom check my emails. I didn't see the refusal letter from DIBP until 25/4/2017.

    Secondly, reading the letter, we can know that DIBP didn't invite me to attend the hearing. They refused my application without hearing, which makes it more difficult for me to be notified for the refusal.

    Finally, I check my mailing address, PO Box 3451, regularly, until now I haven't received the refusal letter from DIBP by post. I thought they will notify me by post, since such an important letter shouldn't be sent by email. That's one of the reasons I seldom check my emails.”

    (Errors in original)

13. In determining whether the Tribunal made its decision according to law, I have regard to the history of this matter commencing with the applicant’s lodging of an application for her protection visa.

14. In answer to the question in that application form “Do you agree to the department communicating with you via fax, email or other electronic means”, the applicant ticked the box ‘Yes’ and provided an email address, ‘[email protected]’.

15. On 21 March 2017, following a decision by the Delegate to refuse the applicant a protection visa, the Department wrote to the applicant by email at the email address ‘[email protected]’ notifying her that her application for a protection visa had been refused. That letter also provided the applicant with information about her review rights. The letter informed the applicant that an application for merits review of the refusal decision must be given to the Tribunal within the prescribed timeframe which commenced on the day on which the applicant is taken to have been notified of the decision and ends at the end of 28 days. The letter provided the details of the various registries of the Tribunal at which the applicant may lodge an application for review. 

16. On 25 April 2017, the applicant lodged an application for review of the Delegate’s decision, again identifying her email address ‘[email protected]’ as her correspondence details. I note that the applicant also provided a post office box address in Putney. I further note that the only evidence of any address before this Court of the applicant is that contained in her Affidavit filed on 13 June 2017 in support of her application for judicial review. That address is a street address in Belmore.

17. The Tribunal noted that the application for review was lodged on 25 April 2017 and that notification had occurred under the statutory scheme on 21 March 2017. The Tribunal referred to the relevant statutory requirements that an application for review of the Delegate’s decision had to be made within 28 days after the applicant was notified of the Delegate’s decision. The Tribunal was satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

18. On 1 May 2017, the Tribunal wrote to the applicant informing her of its preliminary view that her application for review by the Tribunal was not valid as it was not lodged within the relevant time limit. The applicant was invited to provide submissions on that issue by 15 May 2017. 

19. On 3 May 2017, the applicant responded to the Tribunal’s letter by email in which the applicant claimed that she did not receive the Department’s decision to refuse her application until 25 April 2017 because her internet did not work properly and she seldom checked her emails.

20. The applicant claimed she was not invited to an interview with the Delegate and was expecting to receive a decision at her post office box, which she said was one of the reasons she seldom checked her emails.  The applicant said she had applied to the Tribunal as soon as she had received the decision. The Tribunal noted that it carefully considered the applicant’s submission. However, the Tribunal found that on the material before it, the Department had sent the applicant the notification letter and decision record to her email account address that she had provided to the Minister for the purpose of receiving documents.

21. The Tribunal found that notification had occurred in accordance with s.494B(5) of the Act and that in those circumstances the applicant was correctly notified of the decision and the decision notification was effective. The Tribunal then found that in accordance with s.494C of the Act, the applicant was taken to have been notified of the decision on 21 March 2017 and that therefore the prescribed period within which the review application could be made ended on 17 April 2017.

22. The Tribunal noted that as the application for review was not received by the Tribunal until 25 April 2017, the application for review was not made in accordance with the relevant legislation and the Tribunal had no jurisdiction to consider the applicant’s application.

23. The statutory scheme is set out in the first respondent’s submissions as follows:

    “Pursuant to paragraph 412(1)(b) of the Act and subregulation 4.31(2) of the Migration Regulations 1994 (Cth) (the Regulations), 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 required the Minister to notify the applicant of the refusal to grant him a visa 'in the prescribed way'.

    Under subregulation 2.16(3) of the Regulations, the Minister is required to notify the applicant by one of the methods specified in section 494B of the Act. A note to that regulation states that, if the Minister gives a person a document by a method specified in s 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of that method.

    Section 494B of the Act provides the methods by which the Minister gives documents to a person. Among those methods, subsection 494B(5) provides that:

    “Transmission by fax, email or other electronic means

    (4) Another method consists of the Minister transmitting the document by:

    (a) fax; or

    (b) email; or

    (c) other electronic means;

    to:

    (d) the last fax number, email address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents [emphasis added].

    Section 494C of the Act states when a person is taken to have received a document from the Minister. The provisions with respect to notification by subsection 494C(4) are:

    Transmission by fax, email or other electronic means

    (5) If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted [emphasis added].”

24. The first respondent’s solicitor, Ms Strugnell, tendered a bundle of documents identified as “Court Book” and filed on 14 September 2017 marked ‘Exhibit 1R’.

25. Exhibit 1R disclosed that the Delegate’s decision was attached to an email to the applicant sent on 21 March 2017, and the letter states that the transmission letter was emailed to ‘[email protected]’. 

26. Exhibit 1R makes clear that that was the email address provided by the applicant in her protection visa application. Where a document has been dispatched by email and the dispatch complied with the requirements of s.494B(5) of the Act, the document is taken to have been received at the end of the day on which the document is transmitted (see Calimoso v Minister for Immigration and Border Protection [2016] FCA 1335 at [24] and [30] per Charlesworth J).

27. Section 412(1)(b) of the Act and reg.4.31 of the Migration Regulations 1994 (Cth) provide for the prescribed period within which applicants must lodge their applications for review. As the email notifying the applicant of the Delegate’s decision was dated 21 March 2017, the date the notification letter was taken to have been received by the applicant was 21 March 2017. The Tribunal was correct to so hold.

28. In the circumstances, the time-limit for replying to the Tribunal expired 28 days after that date, being 17 April 2017 (see DZAFH v Minister for Immigration and Border Protection [2017] FCCA 387 at [44] - [46]; affirmed in DZAFH v Minister for Immigration and Border Protection [2017] FCA 984 per Davies J).

29. The applicant did not lodge her application until 25 April 2017. The Tribunal provided procedural fairness to the applicant by its letter of 1 May 2017, in which it explained to the applicant that her application may not have been a valid application because it had failed to comply with the statutory time-limits. The letter gave the applicant an opportunity to comment. The applicant provided her response to the Tribunal’s letter on 3 May 2017 and the content of that letter is accurately summarised by the Tribunal in its decision record. 

30. The explanations provided by the applicant for her failure to receive the email were considered by the Tribunal. The Tribunal, having considered the applicant’s response, determined that the notification had occurred in accordance with the statutory regime. The Tribunal found that the applicant’s application, having been filed outside that time period, was therefore not a valid application. Those findings would appear to be open to the Tribunal on the evidence material before it and for the reasons it gave.

31. The application having been found not to be valid was not able to be considered further by the Tribunal, nor was the Tribunal obliged to invite the applicant to a hearing having determined that the application was invalid. In those circumstances, the various complaints made by the applicant, both in her written grounds of review and her oral submissions to the Court this morning, do not assist the applicant in demonstrating any error on the part of the Tribunal. 

Conclusion

1. While I make no final decision as to whether or not the Tribunal’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the Tribunal that is capable of establishing jurisdictional error and none is apparent on the face of the decision record. The Tribunal referred to the relevant law in affirming the decision under review.

2. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application filed on 13 June 2017, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Deputy Associate: 

Date:  2 November 2017