CSN17 v Minister for Immigration
[2018] FCCA 1335
•23 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CSN17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1335 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – refusal of an extension of time for show cause application. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.66, 412, 477, 494B, 494C Migration Regulations 1994 (Cth) |
| Cases cited: DZAFH v Minister for Immigration & Anor [2017] FCCA 387 DZAFH v Minister for Immigration [2017] FCA 984 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 186 Minister for Immigration v Kim [2014] FCA 390 |
| Applicant: | CSN17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3489 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 23 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 23 May 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | Mr T Galvin of Minter Ellison |
INTERLOCUTORY ORDERS
Pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time is refused.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3489 of 2017
| CSN17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 3 May 2017. The Tribunal found that it did not have jurisdiction in the matter before it due to the late lodgement of the review application.
Background facts relating to this matter are set out in the Minister’s outline of submissions, filed on 16 May 2018.
The applicant is a citizen of China, who arrived in Australia on 17 October 2015 on a visitor visa.[1] He lodged an application for a protection (class XA) visa (protection visa) on 11 January 2016, claiming to fear discrimination and persecution in China from a corrupt village official.[2]
[1] Court Book (CB) 12–19
[2] CB 1–41
On 26 October 2016, a delegate of the Minister (delegate) refused to grant the applicant a protection visa.[3] On 4 April 2017, the applicant lodged an application for review of the delegate's decision to the Tribunal.[4] The Tribunal made its decision on 3 May 2017, finding that it did not have jurisdiction to review the delegate's decision.[5]
[3] CB 74–86
[4] CB 93–94
[5] CB 112–113
Tribunal decision
The Tribunal noted that, pursuant to s.412(1)(b) of the Migration Act 1958 (Cth) (Migration Act) and regulation 4.31 of the Migration Regulations 1994 (Cth) (Regulations), the application for review of the delegate's decision had to be made within 28 days after the applicant was notified of the decision.[6] The Tribunal found that the applicant was notified of the delegate's decision by letter dated 26 October 2016 dispatched by registered post.[7] The Tribunal noted that the applicant had commented on the validity of the review application,[8] but found that the applicant was notified of the delegate's decision in accordance with the statutory requirements[9] and therefore he was taken to have been notified of the decision on 3 November 2016.[10] The Tribunal therefore found that he had until 1 December 2016 to lodge a review application.[11] As this was not done until 4 April 2017, the Tribunal found that the application for review was not made in accordance with the relevant legislation and it had no jurisdiction.[12]
[6] At [2]
[7] At [3]
[8] At [4]
[9] At [5]
[10] At [6]
[11] At [5]
[12] At [6]
The present proceedings
These proceedings began with a show cause application filed on 14 November 2017.
The applicant continues to rely upon that application. It is supported by a short affidavit filed with it, which I received.
I also have before me as evidence the court book filed on 8 February 2018 and the affidavit of Kirsty Anne Underwood, made on 11 April 2018, to which is annexed a postal log providing evidence of dispatch of the delegate’s decision to the applicant.
The applicant seeks an extension of time for this judicial review application pursuant to s.477(2) of the Migration Act. His delay in coming to court is in part explained by the fact that this is his second judicial review application. The first application was found to be incompetent because it was lodged out of time and the applicant had not sought an extension of time in that application.
It is unfortunate that it has taken two judicial review applications in order to deal with the extension of time issue. The Minister’s submissions deal with the extent of the delay and the explanation for the delay.
The application, filed in this Court on 14 November 2017, was filed 160 days after the expiration of the 35-day statutory timeframe for seeking judicial review.[13] Pursuant to s.477(2), the applicant has applied, in writing, for an extension of time in which to commence these proceedings.
[13] Section 477(1) of the Migration Act
Generally speaking, the factors that the Court will take into account when considering whether an extension of time should be granted are those set out in Hunter Valley Developments Pty Ltd v Cohen[14] being:
a)the extent of the delay;
b)the explanation for the delay;
c)any prejudice a respondent might suffer because of the delay; and
d)the merits of the proposed application.[15]
[14] (1984) 3 FCR 344; [1984] FCA 186
[15] See also MZABP v Minister for Immigration (2015) 242 FCR 585; [2015] FCA 1391 at [45]–[58]
The Minister does not contend that he has suffered any prejudice because of the delay or would suffer any prejudice if time were to be extended.
The extent of, and explanation for, the delay
As noted above, this is the second judicial review application of the Tribunal's decision. The first application, dated 19 June 2017 and given the proceeding number of SYG1929/2017, was dismissed by a Judge of this Court on 1 November 2017 as incompetent because the applicant had not made any application, in writing, for an extension of time pursuant to s.477(2) of the Migration Act as required. An extension of time was required because the 35-day statutory timeframe from the Tribunal's decision expired on 7 June 2017.
The present judicial review proceeding was filed on 14 November 2017, 13 days after the first application was held to be incompetent.
In the grounds of the application for an extension of time, the applicant has provided the following explanation for the delay (reproduced as written):
I got letter from AAT on 4th May 2017, and the first time I appealed to FCC is on 9th June 2017. I thought this is within 35 days, so I did not choose "yes" for extension of time in the application form. And when I was in court, the judge explained to me that I need to apply for an extension of time pursuant, so I provided a statutory declaration letter later. But I was told that I did not apply for extension. Thus I have to make a new application.
The Minister concedes that the applicant has a reasonable explanation for the delay in filing the present application for the period between 19 June 2017 and 14 November 2017.
However, the Minister submits that the applicant has not provided an adequate explanation for the delay for the period of 3 May 2017 to 18 June 2017. In notifying the applicant of its decision, the Tribunal advised the applicant that if he wished to apply to the Federal Circuit Court for judicial review, he “must do so within 35 days of the date” of its decision.[16] Accordingly, the applicant should be taken to have been on notice that he was required to commence judicial review proceedings by 7 June 2017, being 35 days after the date of the Tribunal's decision.
[16] CB 110
In oral submissions this afternoon, the applicant sought to further explain the delay in coming to court by reference to his lack of English and the need to have documents explained to him. To that extent, his circumstances are not materially different from the bulk of applicants in this jurisdiction.
The applicant’s explanation for his delay, while in part understandable, does not in my view provide a complete explanation for the passage of time. More importantly, however, there is in my view no purpose to granting an extension of time, given the Tribunal decision. The Tribunal’s decision that it lacked jurisdiction because of the late lodgement of the review application is supported by the material in the court book.
Further, the affidavit of Ms Underwood establishes the dispatch of the notification of the delegate’s decision to the applicant on the day of the delegate’s decision. It is apparent that the Tribunal was correct in its analysis of the operation of the deemed receipt provisions of the Migration Act. Indeed, the applicant was ultimately some five months out of time in going to the Tribunal. No purpose could be served by remittal of this matter to the Tribunal, given its inability to extend time.
I otherwise agree with the Minister’s submissions on the merits of the judicial review application.
The merits of the proposed substantive application
The proposed substantive application pleads two grounds of review (reproduced as written):
1.In the statement of AAT, it states that I did not appeal to AAT within 28 days after I got refusal letter from DIBP. I did provide postal letter to DIBP, but I didn't receive any letter from DIBP. I appeal to AAT after I found out my visa was expired. I rent room with other people, and my roomates always change. So, during the time I lived there, there might be someone took my letters by mistake. When I realised that I missed an important letter, I asked my current roommates about my letter. Meanwhile, I tried my best to find my previous roommates see if they have my letter. But I did not find them. So, I had no choice but to appeal to AAT without decision letter from DIBP.
2.What I suffered in China was true, and I hope FCC can consider my case, and give me a chance to live in this country.
For the following reasons, the proposed grounds have no prospects of success.[17]
[17] Cf. MZABP at [63]
The critical issue in this proceeding is whether the Tribunal was correct to conclude that it did not have jurisdiction. The applicant indirectly raises this issue in Ground 1. Ground 2 seeks impermissible merits review and is misconceived.
Subsection 66(1) of the Migration Act required the Minister to notify the applicant of the refusal to grant him a visa “in the prescribed way”. Further, s.66(2) of the Migration Act required that notification to specify certain matters. The delegate's decision and its cover letter contained the material required to be included by s.66(2).[18]
[18] CB 70–86
Under subregulation 2.16(3) of the Regulations, the Minister was required to notify the applicant by one of the methods specified in s.494B of the Migration 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 Migration Act, the person is taken to have received the document at the time specified in s.494C of the Migration Act in respect of that method.
Section 494B of the Migration Act provides the methods by which the Minister gives documents to a person. Among those methods, s.494B(4) relevantly provides that:
Dispatch by prepaid post or by other prepaid means
(4)Another method consists of the Minister dating the document, and then dispatching it:
(a)within 3 working days (in the place of dispatch) of the date of the document; and
(b)by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or
(ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; or
(iii) if the recipient is a minor—the last address for a carer or the minor that is known by the Minister.
Section 494C of the Migration Act states when a person is taken to have received a document from the Minister. The relevant provision with respect to notification by s.494B(4) is:
Dispatch by prepaid post or by other prepaid means
(4)If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a)if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or
(b)in any other case—21 days after the date of the document.
Section 412(1)(b) of the Migration Act and subregulation 4.31(2) of the Regulations together provide that the period in which an application for review of a 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.[19] It is well settled that the Tribunal has no power to extend the time period for the lodging of a valid application for review to it, no matter how small the delay or compelling the circumstances, or whatever the reason for the default.[20]
[19] DZAFH v Minister for Immigration & Anor [2017] FCCA 387 at [44]–[46]; upheld on appeal in DZAFH v Minister for Immigration [2017] FCA 984
[20] Rana v Minister for Immigration [2014] FCA 1233 at [3]
The delegate's decision was enclosed with a letter from the Minister’s Department to the applicant dated 26 October 2016, addressed to an address in Campsie NSW 2194 (cover letter).[21] The cover letter states that its transmission method was by post, specifically registered post with the registered post number 51008363898016.[22]
[21] CB 70–73
[22] CB70
It appears that the cover letter and its enclosures were returned to the Minister's Department unopened on 14 November 2016.[23] The relevant envelope marked “Return to sender” has affixed on it a registered post label corresponding with the label on the cover letter, namely, registered post number 51008363898016. While this indicates that the cover letter and its enclosures were returned to the Minister's Department unopened, that is of no consequence because of the operation of the deeming provisions in ss.494B and 494C of the Migration Act. The relevant issue is whether there was compliance with the relevant statutory requirements.[24]
[23] CB 88–92
[24] See SZOBI v Minister for Immigration (No 2) (2010) 119 ALD 233; [2010] FCAFC 151 at [18]
For the following reasons, I accept that the notification of the delegate's decision complied with the requirements of s.494B(4) of the Migration Act.
With respect to s.494B(4)(a): the delegate's decision was dated 26 October 2016. The postal log maintained by the Minister's Department for 26 October 2016 (the postal log) indicates that the cover letter was sent to the applicant by post on that day, with the barcode number 9979 51008363898016.[25] Consequently, the delegate's decision was dispatched within three working dates of the date of the decision.
[25] Annexure KAU1 of Ms Underwood
With respect to s.494B(4)(b): the cover letter and its enclosures were dispatched by registered post. Both ordinary post and registered post are forms of prepaid post for the purposes of s.494B(4)(b).[26] Consequently, the delegate's decision was dispatched by prepaid post.
[26] Minister for Immigration v Singh (2000) 98 FCR 77; [2000] FCA 377 at [32]; Minister for Immigration v SZKPQ (2008) 166 FCR 84; [2008] FCAFC 21 at [13]
With respect to s.494B(4)(c): in his application for a protection visa, the applicant provided, in response to questions on the application form, contact details of a residential address in Campsie (including alternately both the correct and incorrect postcode).
There is no evidence indicating that the Minister's Department received a more recent correspondence address for the applicant before the delegate's decision was dispatched.
The cover letter was addressed to the applicant’s nominated address in Campsie, NSW 2194. Accordingly, the Minister’s Department addressed the cover letter to the same street address, suburb and State specified by the applicant in response to questions 38, 39 and 82, and the postcode specified in response to question 82. I take judicial notice of the fact that Campsie's postcode is 2194, and therefore I am satisfied that the Minister’s Department used the correct postcode. In any event, a postcode is not an essential part of the address, such that any error to correctly record a postcode will not result in non‑compliance with the statutory requirements.[27] Consequently, the cover letter and its enclosures, including the delegate's decision, was sent to the last address for service, or residential or business address, provided by the applicant for the purposes of receiving documents.
[27] SZKGF v Minister for Immigration [2008] FCAFC 84 at [11]
Furthermore, the Minister's Department was entitled to elect to send the cover letter and its enclosures by post to rather than using the email address provided by the applicant in response to questions 41 and 42 of his protection visa application form.[28]
[28] Minister for Immigration v Kim [2014] FCA 390
It follows that the Minister’s Department complied with s.494B(4) of the Migration Act in dispatching the delegate's decision to the applicant. Subsection 494B(4), when read with s.494C(4), is a deemed receipt provision, such that compliance with those statutory requirements will be sufficient for the correspondence to have been taken to have been received.[29]
[29] SZOBI at [18]
It follows that, by operation of s.494C(4)(a) of the Migration Act, the applicant is deemed to have received the delegate's decision seven working days after the date of the document, that is, on 3 November 2016, as the Tribunal correctly found. The period in which the applicant had to apply to the Tribunal for review of the delegate's decision commenced on 3 November 2016, and ended 28 days after that date, that is on 1 December 2016, as the Tribunal correctly found.[30] As the application to the Tribunal was not lodged until 4 April 2017, the Tribunal was correct to find that it did not have jurisdiction. As the Tribunal did not have any discretion to extend the time limit for lodging a valid application to the Tribunal,[31] the proposed judicial review application has no prospects of success and it is not in the interests of the administration of justice for an extension of time to be granted.
[30] Cf. s.412(1)(b) of the Migration Act and regulation 4.31(2) of the Regulations
[31] Patel v Minister for Immigration [2012] FCA 145 at [7]
Conclusion
I conclude that the interests of the administration of justice do not require the granting of an extension of time in this matter. I will order that pursuant to s.477(2) of the Migration Act, the application for an extension of time be refused.
In consequence of the refusal of the extension of time, the application is incompetent because the Court lacks jurisdiction to deal with it.
The Minister seeks an order for costs in accordance with the Court scale in the sum of $3,667. The applicant claims impecuniosity but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 24 May 2018
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