Dap17 v Minister for Home Affairs
[2019] FCCA 801
•1 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DAP17 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 801 |
| Catchwords: MIGRATION – Judicial review – whether Tribunal had jurisdiction to hear review application – whether review application to Tribunal out of time – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.65, 66, 411, 412, 476, 477, 494B, 494C, Pt.7 |
| Cases cited: Awon v Minister for Immigration & Border Protection [2015] FCA 846 |
| Applicant: | DAP17 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 305 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 29 March 2019 |
| Date of Last Submission: | 29 March 2019 |
| Delivered at: | Perth |
| Delivered on: | 1 April 2019 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr P J Corbould |
| Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS (as made 29 March 2019)
The application be dismissed.
Formal written reasons for judgment be published from chambers at a later date.
The applicant pay the first respondent’s costs fixed in sum of $6,000 by 29 April 2019.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 305 of 2018
| DAP17 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 29 March 2019 this application for judicial review under the Migration Act 1958 (Cth) (the “Act”) was heard by this Court. Having heard the parties, the Court ordered that:
1. The application be dismissed.
2. Formal written Reasons for Judgment be published by Chambers at a later date.
3. The applicant pay the first respondents costs in the sum of $6000.00.
The applicant must pay the Minister’s costs fixed in the amount of $6000.00 – an amount which, the Court notes, is below the current scale of costs that governs proceedings in this Court.
What follows are the formal written Reasons for Judgment referred to in order 2 of the orders made by this Court on 29 March 2019.
Judicial Review Application
By application filed in this Court on 8 June 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 8 May 2018.
The Tribunal was asked to review a decision of a delegate of the first respondent (the “delegate”) to refuse to grant the applicant a protection visa under s.65 of the Act.
The Tribunal found that it did not have jurisdiction in relation to the matter as the applicant had not filed an application in the Tribunal within the 28 day required filing period and the Tribunal had no discretionary power to extend the time for filing in the Tribunal.
The applicant now seeks judicial review in this Court pursuant to s.476 of the Act. He seeks an order that the decision of the Tribunal be quashed.
To obtain relief from this Court, the applicant must show jurisdictional error in the Tribunal’s decision.
Background Facts
The Court notes the factual and procedural overview provided in the Minister’s written submissions before this Court (dated 8 March 2019) at paragraphs [3]–[10] and adopts this outline as its own. This overview was not in dispute and provides, relevantly, as follows.
The applicant is a citizen of Malaysia who was born on 20 September 1995 (Court Book (“CB”) 1 and 49). He arrived in Australia on 26 September 2017 on a UD-601 Electronic Travel Authority visa (CB 40 and 53).
On 29 November 2017, the applicant applied to the former Department of Immigration and Border Protection, now the Department of Home Affairs (the “Department”) for a protection visa (CB 1-19 and 40).
In his application, the applicant provided a residential address in Australia in Swan Hill, Victoria (the applicant’s residential address) (CB 5) and an email address (the “applicant’s email address”) (CB 6) at which to receive any communications from the Department.
On 8 December 2017, the Department wrote to the applicant acknowledging receipt of his application for a protection visa (CB 25-33).
The letter was sent to the applicant’s email address (CB 24).
On 12 February 2018, a delegate of the Minister refused to grant the applicant a protection visa (CB 40-47).
The applicant was notified of the delegate’s decision by letter from the Department dated 12 February 2018.
That letter was sent by registered post to the applicant’s residential address (CB 36-39 and 55).
On or about 5 March 2018 the envelope containing the Department’s letter was returned to the Department (CB 48).
On 17 April 2018, the applicant lodged an application with the Tribunal for review of the delegate’s decision (CB 49-50).
By letter dated 20 April 2018, the Tribunal wrote to the applicant advising him that it appeared that his application was not a valid application as it was not lodged within the relevant time limit (28 days) and inviting him to comment on the validity of his application by 4 May 2018 (CB 63-64).
The applicant did not respond to the Tribunal’s invitation.
On 8 May 2018, the Tribunal determined that it did not have jurisdiction to review the delegate’s decision (CB 67-68).
The applicant was advised of the Tribunal’s decision by letter dated 11 May 2018 which was sent by email to the applicant on that date (CB 65-66).
The Tribunal’s Decision
The Tribunal’s decision is brief and can be provided here in its entirety. It provides:
1.This is an application for review of a decision of a delegate of the Minister for Immigration on 12 February 2018 to refuse to grant a protection visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 17 April 2018. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
2.As the applicant was not in immigration detention on the day the applicant was notified of the decision, an application for review of the decision had to be made within 28 days, commencing on that day: r.4.31(2) of the Migration Regulations 1994. In DZAFH v Minister for Immigration [2017] FCCA 387, the Federal Circuit Court held that the prescribed period in r.4.31 commences on, and includes, the day the applicant is taken to have been notified of the decision: at [44] - [46].
3.On 20 April 2018, the Tribunal emailed correspondence to the applicant, inviting the applicant to comment on the validity of the application for review and to forward written submissions to the Tribunal by 4 May 2018. No submissions or comments regarding the validity of this review application at all were forwarded to the Tribunal, either by the applicant or on his behalf, right up to the time of making this decision.
4.The Tribunal finds that the applicant is taken to have been notified of the decision on 21 February 2018: s.494C of the Act. Therefore the prescribed period to apply for review ended on 20 March 2018.
5.The Tribunal notes that the review application was lodged considerably later than 20 March 2018 with its application not being received until 17 April 2018.
6.The Tribunal does not have any discretionary power to extend the time to lodge a valid application
7.As the application for review was not received by the Tribunal until 17 April 2018 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.
8.The Tribunal does not have jurisdiction in this matter.
Application for Judicial Review
On 8 June 2018 (within the 35 days provided in s.477 of the Act), the applicant made an application for judicial review of the Tribunal’s decision in this Court.
The applicant’s application for judicial review lists the following grounds of review:
1. The tribunal member was failed to consider my application.
2. The tribunal member was not give me time to extend.
3. The tribunal member was never give a chance to review my application.
4. The tribunal member was not consider my application.
5. The tribunal member was not satisfy my late application. But still I was explain the situation to member by writing.
6. The agent was cheating me. And I do statutory declaration from Perth police station to prove that I was not received the document on time. But the member was didn’t give me a chance to review.
7. The tribunal member was no jurisdiction on my matter.
As correctly noted by counsel for the Minister before this Court, there is overlap in the applicant’s grounds. Despite this, they all seem to allege that the Tribunal should have granted the applicant an extension of time and considered his application for review (which was lodged late, apparently because of some unstated misconduct by a migration agent). In relation to this latter issue, it is noted that there is no evidence before the Court that the applicant was assisted by a migration agent. Further, his protection visa application states that he received no assistance in completing the form (CB 19).
Despite orders allowing him to do so, the applicant did not file and serve any amended application, any further affidavits or any written submissions.
The applicant appeared in this Court without legal representation. He does not speak English. He was assisted by an interpreter. The Court thanks the interpreter for his assistance. The Minister was represented by Mr Corbould.
The Court had written submissions from the Minister and a Court Book numbering 68 pages. The applicant did not have with him a copy of the Court Book or a copy of the Minister’s submissions at the hearing. Mr Corbould confirmed that both documents had been sent as hard copies to the amended address for service provided to the Court by the applicant. The Court is satisfied that all service requirements were complied with. To assist the applicant, the Court asked Mr Corbould to take the applicant through his written submissions and ensure that, when referencing the Court Book, the interpreter had ample time to translate what was being said. The applicant agreed with this approach and the Court is satisfied that the applicant understood what was being said to him.
Did the Tribunal fall into Jurisdictional Error?
To succeed before this Court, the applicant must show that the Tribunal fell into jurisdictional error.
As the applicant was not legally represented, the Court explained to him what the Court could and could not do.
It was explained that the Court could not engage in merits review (as per Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259) but could look at whether the Tribunal fell into jurisdictional error.
It was explained to the applicant that in relation to matters of this sort, the possible categories of jurisdictional error most commonly include:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];
b)where the decision-maker ignores relevant material: Craig at [198];
c)where the decision-maker relies on irrelevant material: Craig at [198];
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: see SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]‑[17]; and
f)where the decision is illogical, irrational or unreasonable: see Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Minister’s Written Submissions
In relation to the applicant’s grounds of review, the Minister contended:
a)section 412(1)(b) of the Act provides that an application for review of a Part 7 reviewable decision (here, the delegate’s decision as per s.411(1) of the Act) must be given to the Tribunal within “the period prescribed”;
b)pursuant to reg.4.31(2) of the Migration Regulations 1994 (Cth) (the “Regulations”), the prescribed period in the applicant’s case is 28 days, commencing on the day the applicant is notified of the delegate’s decision;
c)the Tribunal does not have the power to extend the prescribed time periods in s.412(1)(b) of the Act or reg.4.31 of the Regulations. This is so even if there is no fault on the part of the applicant. The time limit for an application for review to the Tribunal is strictly applied;
d)section 66(1) of the Act provides that when the Minister (through a delegate) grants or refuses to grant a visa, he or she is to notify a visa applicant of the decision in “the prescribed way”;
e)pursuant to reg.2.16(3) of the Regulations, the prescribed way of notifying an applicant of a decision to refuse to grant a visa is by one of the methods specified in s.494B of the Act;
f)pursuant to s.494B(4) of the Act, one of the methods involves despatching the document “by prepaid post within 3 working days of the date of the document to the last residential address provided to the Minister by the recipient for the purposes of receiving documents”;
g)pursuant to s.494C(4)(a), where the document sent by prepaid post is dispatched from a place in Australia to an address in Australia, the person is taken to have received the document “7 working days (in the place of that address) after the date of the document”;
h)the evidence in this case indicates that the delegate’s decision was sent by registered mail on 12 February 2018 to the residential address as provided on the applicant’s application for a protection visa (CB 36-39 and 55);
i)the applicant’s residential address was provided to the Minister ‘for the purposes of receiving documents’ as required by s.494B(4)(c)(ii) of the Act (CB 5);
j)although the Department also had an email address for the applicant, it was not obliged to communicate with him by that means and it was open to the Department to use any one of the methods provided for under s.494B;
k)pursuant to s.494C(4)(a) of the Act, the applicant was taken to have received the delegate’s decision on 21 February 2018. The last day of the prescribed 28 day period was thus 20 March 2018. The applicant’s application for review of the delegate’s decision was not lodged until 17 April 2018;
l)the fact that the delegate’s decision was ‘returned to sender’ and does not appear to have been received by the applicant is irrelevant; and
m)as the applicant was notified of the delegate’s decision in accordance with the statutory requirements and failed to lodge his application for review within the prescribed period, the Tribunal was correct to find that it did not have jurisdiction to consider the application.
The Applicant’s Oral Submissions
The applicant was asked to comment. He initially advised that he had nothing to say. However, having heard from Mr Corbould, he then seemed to suggest that he did receive the document and/or did not understand it as he cannot read and does not speak English.
Unfortunately, this response does not assist the applicant in relation to whether the Tribunal fell into jurisdictional error. While the Court is sympathetic to the concerns of an applicant that does not speak English or who cannot read, an applicant who has filed an application for a protection visa must ensure that they take whatever steps are necessary to ensure that they receive necessary documentation and can understand those documents so that they can present their case. To the extent that the applicant says he did not receive the relevant documents, for the reasons that follow, the Court cannot assist him in that regard.
Relevant Legislation
The Court is guided in this matter by the decision of Judge Driver in CSN17v Minister for Immigration & Border Protection [2018] FCCA 1335 (“CSN17”).
In CSN17, Judge Driver confirmed that the Tribunal in that case was correct to conclude that it did not have jurisdiction to hear an application that was made out of time, notwithstanding that the decision of the delegate was provided to the applicant by pre-paid post but returned to sender. The decision was sent by registered post in accordance with the requirements of s.494B(4) and the fact that it was returned to the sender ‘was of no consequence because of the deeming provisions in ss.494B and 494C of the Migration Act’ (CSN17 at [32]).
The Court also finds considerable guidance from the decision of Spender J in Murphy v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 135 FCR 550 (“Murphy”).
Both CSN17 and Murphy assess and clarify the relevant sections of the Act in relation to the delivery and receipt of a delegate’s decision in situations where an applicant seeks review of that decision before the Tribunal. Both also address situations akin to what occurred here – ie, a situation where the relevant delegate’s decision was delivered, via registered mail, to an address identified for delivery but ultimately returned to sender (ie, the Tribunal).
As outlined by Judge Driver in CSN17, s.66(1) of the Act requires the Minister to notify an applicant of the refusal to grant him a visa “in the prescribed way”.
Further, s.66(2) of the Act requires that notification to specify certain matters.
The Court is satisfied here that the delegate’s decision and its cover letter contained the material required to be included by s.66(2) of the Act (CB 36-39). As outlined by Judge Driver in CSN17, under reg.2.16(3) of the Regulations, the Minister is required to notify an applicant in relation to the delegate’s decision by one of the methods specified in s.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 s.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, 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 Act, in turn, outlines 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.
As outlined by Judge Driver in CSN17, s.412(1)(b) of the Act and reg.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: DZAFH v Minister for Immigration & Anor [2017] FCCA 387 at [44]–[46]; upheld on appeal in DZAFH v Minister for Immigration [2017] FCA 984.
The Tribunal has no power to extend the time period for the lodging of a valid application for review to it once it is evident that the 28 day filing period has not been complied with: Beni v Minister for Immigration & Border Protection [2018] FCAFC 228 at [83]; Awon v Minister for Immigration & Border Protection [2015] FCA 846 at [38]-[39]; CQP15 v Minister for Immigration & Border Protection [2017] FCA 854 at [43] (“CQP15”); NACG v Minister for Immigration & Multicultural Affairs [2002] FCAFC 173 at [7] (“NACG”); Minister for Immigration & Border Protection v ASE15 (2016) 237 FCR 460 at [48].
Even where there is no fault on the part of the applicant (as appears, regrettably, to be the case here), the time limit for an application for review to the Tribunal is strictly applied: CQP15 at [44]; NACG at [8].
Consideration
The central issue in this matter is whether the Tribunal was correct when it determined that it did not have jurisdiction to hear the applicant’s matter.
This much is evident from the applicant’s first five grounds of review.
Ground 6 outlines concerns that applicant has in relation to the service he was given by his Migration Agent. This does not go to jurisdictional error. The applicant is, however, encouraged to raise any concerns in this regard with the Office of the Migration Agents Registration Authority – a body that has wide ranging powers to investigate all work undertaken by registered migration agents in Australia. The Court explained this to the applicant at the hearing of this matter.
Ground 7 simply summarises the Tribunal’s conclusion and is not a valid ground of review.
For the following reasons, the Court finds that no jurisdictional error arises in relation to the applicant’s grounds of review. The Court is satisfied that the notification of the delegate’s decision complied with the requirements of s.494B(4) of the Act and, as the applicant filed his application for review in the Tribunal outside the 28 day filing period as specified in the Act, the Tribunal was correct to find that it did not have jurisdiction to hear the matter before it.
Regarding s.494B(4)(a), the delegate’s decision was dated 12 February 2018. The delegate’s decision was enclosed with a covering letter from the Minister’s Department to the applicant dated 12 February 2018 and was sent to the applicant on the same day (hence, well within the 3 day delivery requirement).
With respect to s.494B(4)(b), the covering letter was addressed to a residential address at 6/136 Stradbroke Ave, Swan Hill, Victoria 3585.
The cover letter states that its transmission method was by registered post with the registered post number 510115454300. As noted by Judge Driver in CSN17, both ordinary post and registered post are forms of prepaid post for the purposes of s.494B(4)(b): Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 77 at [32]; Minister for Immigration & Citizenship v SZKPQ (2008) 166 FCR 84 at [13].
With respect to the requirements of s.494B(4)(c) of the Act, 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 Swan Hill (CB 5). 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 (as per s.494B(4)(c) of the Act).
The Minister’s Department was entitled to elect to send the cover letter and its enclosures by post rather than using the email address provided by the applicant in his protection visa application form. There is no requirement that an email address be used instead of a residential address: Haque v Minister for Immigration & Citizenship [2010] FCA 346 at [64]; Minister for Immigration & Border Protection v Kim [2014] FCA 390 at [41]-[43].
Nor was there any requirement that the letter be sent again to a secondary address (here, arguably, an email address) once the relevant correspondence was “returned to sender”. While this might seem unfair, the Minister’s Department is only required to comply with s.494B(4) of the Act by sending the delegate’s decision to the applicant. This is what occurred here.
As explained by Judge Driver in CSN17, s.494B(4), when read with s.494C(4) of the Act, is a “deemed receipt provision”, such that compliance with those statutory requirements will be deemed sufficient for the correspondence to have been taken to have been received: SZOBI v Minister for Immigration & Citizenship [2010] FCAFC 151 at [18].
This is so despite the fact that the cover letter and the decision were returned to the Minister’s Department unopened on 5 March 2018.
This much is made clear in the decision of Justice Spender in Murphy wherein His Honour, referencing s.494B(4) of the Act writes:
69.The person is “taken to have received the document”, in the circumstances of this case, seven working days after the date of the document. In my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification. There is nothing to indicate that the effect of the subsection is to be read as if there was a proviso that the person was not taken to have received the document where the documents had been returned undelivered to the sender within seven working days after the date of the document, or that the subsection operates in its terms only “until the contrary is proved”.
In the circumstances of this case, by operation of s.494C(4)(a) of the Act, the applicant is deemed to have received the delegate’s decision seven working days after the date of the document; that is, on 21 February 2018.
The period in which the applicant had to apply to the Tribunal for review of the delegate’s decision was 28 days. That period commenced on 21 February 2018, and ended on 20 March 2018: EBE17 v Minister for Immigration & Anor [2018] FCCA 45 at [22(f)].
As the application to the Tribunal was not lodged until 17 March 2018 (well after the expiry of the 28 day period) and the Tribunal had no legislative discretion to extend the 28 day time limit for lodging a valid application, the Tribunal was correct in determining that it did not have jurisdiction to hear the matter.
Conclusion and Orders
The Court concludes that the decision of the Tribunal dated 8 May 2018 is not affected by jurisdictional error.
The applicant’s Judicial Review Application is, accordingly, dismissed.
For the above reasons the Court made orders on 29 March 2019 dismissing the Judicial Review Application and awarding costs to the Minister.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 1 April 2019
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