CQP15 v Minister for Immigration
[2016] FCCA 2398
•23 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CQP15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2398 |
| Catchwords: MIGRATION – Application for review of delegate’s decision – application to AAT out of time – no power to extend time. |
| Legislation: Migration Act 1958 (Cth), pt.7, ss. 412, 477, 494C Migration Regulations 1994, reg. 4.31 |
| Cases cited: SZUQF v Minister for Immigration & Border Protection [2015] FCA 1409 |
| Applicant: | CQP15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | DNG 69 of 2015 |
| Judgment of: | Judge Young |
| Hearing date: | 23 August 2016 |
| Date of Last Submission: | 23 August 2016 |
| Delivered at: | Darwin |
| Delivered on: | 23 August 2016 |
REPRESENTATION
| The Applicant appearing in person via videolink |
| Counsel for the Respondents: | Ms Newman |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application for an extension of time be granted.
The application filed 26 November 2016 be dismissed.
The applicant pay the respondent’s costs fixed in the sum of $6,825.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
DNG 69 of 2015
| CQP15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Ex Tempore
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
Introduction
This is an application for review of a decision of the Administrative Appeals Tribunal (AAT) made on 6 October 2015. The applicant is a citizen of India and he applied for a protection visa. The application was refused by a delegate of the Minister on 16 July 2015. The delegate sent a notification to the applicant of the refusal to his address for correspondence. At that time, it appears to be clear that the applicant was represented by a migration agent who was his authorised recipient for the purpose of receiving documents.
At the time the applicant was in immigration detention in Darwin. Under the Migration Act 1958 the time limit for an application to the AAT was determined by a combination of sections 412 and 494C(4) of the Migration Act. Section 412(1)(b), provides that an application for review of a part 7 reviewable decision, and this is a part 7 reviewable decision being a decision to refuse a protection visa, 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. Regulation 4.31(2) of the Migration Regulations 1994 provides that the prescribed period, if the applicant is in immigration detention, is seven working days from the day of notification.
Under section 494C(4), if the applicant is notified by prepaid post or prepaid means the person is taken to have received the document if the document was dispatched from a place in Australia to an address in Australia seven working days after the date of the document. It is not in question that the document was dispatched from a place in Australia to an address in Australia. So, assuming the document was dispatched on 16 July 2015, the applicant is taken to have received the document on 27 July 2015. The time for the application to the Tribunal was 7 working days from that date, that is, 5 August 2015.
There is, I might say, no evidence from within the body of the Tribunal’s decision about the date the document was dispatched by prepaid post to the applicant. However, at paragraph 4 of the decision, it was said that the material before the Tribunal indicates that the applicant was notified of the decision by letter dated 16 July of 2015 and dispatched by post. The Tribunal went on to say that it was satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
The applicant has not challenged that finding or that conclusion by the Tribunal and while it was submitted by Ms Newman for the Minister that I should myself look at some records from the Minister suggesting that the date of posting to the applicant’s authorised recipient was on that day it seemed to me that it was inappropriate for me to examine that material and reach any separate conclusion about it. It seems to me that the role of this court is to consider the arguments brought forward by the applicant pointing to error by the Tribunal and, as I say, the applicant did not challenge that particular finding.
So while, as I say, the Tribunal simply notes that the material was posted on 16 July 2015 without referring to anything else, I am satisfied that, absent a challenge to that, I should accept that as correct. That being the case, the applicant’s application for review to the AAT which was lodged on 7 September 2015 was some weeks out of time. On 15 September 2015 the Tribunal wrote to the applicant and, in substance, advised him that it was not considered a valid application because it was not lodged within the relevant time, that is, by 5 August 2015. The Tribunal concluded that it did not have jurisdiction to consider the application.
The applicant has, in his application, not pointed to any particular error in the Tribunal’s decision. The grounds of review are as set out in the application: that he has a son who is nine months old, born, apparently, to an Australian woman and he has not seen him. I am told by the applicant that that child is now 18 months old. Secondly, he has more evidence and more information for a complementary protection review. None of that information has been put forward in this application, even if it was relevant – and I am satisfied that it was not relevant. In relation to jurisdictional error, the applicant says simply, and I quote “there are some jurisdictional errors in the decision.”
The applicant appeared before me today, assisted by a Punjabi interpreter and I asked him to point out errors in the Tribunal decision. He was unable to point to any errors in the actual decision. His submissions to me were, in substance, that at all relevant times, he has been in immigration detention and, at the time of the decision by the delegate, he was in the Darwin immigration detention centre and that his authorised recipient did not pass the decision onto him promptly but that the authorised recipient delayed in providing him with the decision so that he was out of time with his application.
I see no real reason to doubt that assertion as the authorised recipient, I understand, was in Sydney and the applicant has been in detention in Darwin. I think it is common sense that communicating between a migration agent or an authorised recipient in Sydney and someone in the Darwin detention centre is often going to be difficult. Nevertheless, the point appears to be that, regardless of the explanations for the applicant’s delay, there is no provision in the Migration Act 1958 for an extension of the time for the making of an application to the AAT.
I was referred to the decision of Rangiah J in SZUQF v Minister for Immigration & Border Protection [2015] FCA 1409. Rangiah J does not consider precisely identical circumstances to this case but rather a decision where the applicant was not in detention, which results in a shorter period, but outside of detention and a 28 day period applied. Nevertheless, the conclusion of his Honour appears to be directly applicable to this case, the substance of which is that there is no provision for an extension of time, however deserving an applicant might be. The applicant was, perhaps not surprisingly considering he was unrepresented, unable to assist me with this issue. In the case cited Rangiah J decided that the Tribunal was correct to decide that it lacked jurisdiction to deal with the applicant’s application and dismissed the application with costs. So I am satisfied that the application must be dismissed.
The second issue that I need to deal with is an application for an extension of time under section 477 of the Migration Act 1958. An applicant has 35 days within which to apply to this Court after a decision of the AAT. In this case, as I mentioned, the decision of the AAT was on 6 October 2015. The application was made on 26 November 2015, some 16 days late.
The applicant, who said to me in submissions that he was provided with the decision around about 20 October 2015 by his departmental case manager rather than by his migration agent or authorised recipient – even though it appears that his migration agent was still his authorised recipient at that date and was so until 20 November 2015 or thereabouts. On that date the applicant wrote a note to someone, it is unclear who but it is included in the court book so I take it that the Minister has received it, and advised that he no longer wished his migration agent to be his authorised recipient.
The applicant told me that the reason for his delay was that, as I say, he did not receive notification from his authorised recipient and actually received notification from his case manager. I make no findings about that and, indeed, I cannot, but in circumstances where an applicant is in immigration detention, English is not his first language and he appears to be a person of limited education in any event and has been in immigration detention for a considerable period I do not consider that a delay of 16 days is inordinate. The department did not suggest that it was inordinate and the department did not point to any prejudice.
Rather, Ms Newman as counsel for the Minister told me, quite properly, that one of the criteria that I ought to take into account in assessing whether there should be an extension of time under section 477 was, among other matters, the merits of the applicant’s case and particularly whether there was an arguable case. I certainly acknowledge that that is a relevant factor but it is simply one of the many factors that I have to take into account in deciding whether it is in the interests of the administration of justice to extend the time.
Given the circumstances of the applicant and particularly his long period in immigration detention, the relatively short delay in making the application and the absence of prejudice, I will extend the time but I will dismiss the application with costs.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Young
Date: 14 September 2016
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