DJD17 v Minister for Immigration
[2019] FCCA 2747
•26 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DJD17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2747 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa – whether the application to the Tribunal was lodged out of time – whether the Tribunal had jurisdiction – whether the notification of the delegate’s decision clearly stated the time within which an application had to be lodged – whether the Tribunal accurately calculated time – notification sent by email – Tribunal considering application was one day late. |
| Legislation: Acts Interpretation Act 1901, s.36(1) Migration Act 1958, ss.66, 412, 494C(5) Migration Regulations 1994, reg.4.31(2) |
| Cases cited: Ali v Minister for Home Affairs [2019] FCA 1102 |
| Applicant: | DJD17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 1617 of 2017 |
| Judgment of: | Judge Riley |
| Hearing date: | 26 September 2018 |
| Date of last submission: | 7 June 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 26 September 2019 |
REPRESENTATION
| Counsel for the applicant: | Angel Aleksov |
| Solicitors for the applicant: | Lawson Bayly |
| Counsel for the first respondent: | Christopher McDermott |
| Counsel for the second respondent: | No appearance |
| Solicitors for the respondents: | DLA Piper Australia |
ORDER
The application filed on 26 July 2017 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1617 of 2017
| DJD17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal. In that decision, the Tribunal determined that it did not have jurisdiction to review a decision of a delegate of the Minister of Immigration and Border Protection not to grant the applicant a protection visa. The Tribunal calculated that the review application was filed one day late.
The applicant’s claims
The applicant is a Muslim citizen of Malaysia. He claimed in his protection visa application that he wanted to marry a Chinese woman of Christian faith, but that the law in Malaysia was very strict about interfaith marriages. In the interview with the delegate, the applicant said that he broke up with his Chinese girlfriend after he came to Australia. He said his new girlfriend, who he met on a farm in Swan Hill, is a Malaysian Muslim. He said he is visited by a Christian missionary who is teaching him about Christianity. He said he is thinking about converting to Christianity. He said he is worried for his future children if they grow up in Malaysia.
The Tribunal’s reasons
The Tribunal found that the applicant was notified by email of the delegate’s decision on 20 July 2016. The Tribunal calculated that the 28 days for the applicant to file an application with the Tribunal expired on 16 August 2016. The application was filed with the Tribunal on 17 August 2017.
The Tribunal invited the applicant’s comments on the lateness of the filing of the application. The applicant’s agent replied saying that he had miscalculated the time frames. The Tribunal sympathised with the applicant’s predicament but said that it had no discretion to extend the time for filing the application.
Proceedings in this court
The application was originally listed for a show cause hearing. However, by consent, that listing was vacated and the matter was listed for a final hearing on 26 September 2018.
The applicant’s application to this court had seven grounds. However, the applicant’s counsel at the final hearing said that the written submissions filed on 29 August 2018 only addressed two of the grounds and the others were abandoned. In any event, at the final hearing, the applicant’s counsel said that he would only address the court on the arguments in paragraphs 5 and 6 of the applicant’s written submissions, but rely on the written submissions for the other argument.
Following the hearing in this court, judgment was reserved. On 23 November 2018, the court made orders by consent:
a)reserving the decision until after judgment was delivered by the Full Court of the Federal Court in Beni v Minister for Immigration and Border Protection [2018] FCAFC 228; and
b)giving the applicant and the Minister seven days and 14 days respectively after judgment was delivered in Beni to file written submissions.
Judgment in Beni was delivered on 14 December 2018. The applicant did not file written submissions. The Minister filed written submissions on 28 December 2018 saying that this court was bound by Beni, and the Tribunal had no jurisdiction to review if the application was filed outside the 28 day limit. On 17 January 2019, the applicant emailed chambers saying that Beni was wrongly decided but that it binds this court. The question remained whether the application to the Tribunal was actually filed late.
On 17 May 2019, orders were made by consent for the parties to file written submissions on the application to the present matter of DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64. The applicant filed written submissions on that point on 22 May 2019 and the Minister on 7 June 2019. The applicant emailed chambers on 12 June 2019 to say that he did not wish to file any submissions in reply.
The applicant submitted that DFQ17 is relevantly indistinguishable from the present matter. The Minister submitted that DFQ17 is distinguishable.
Legislation
Section 66 of the Migration Act 1958 (“the Act”) relevantly provided that:
(1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.
(2) Notification of a decision to refuse an application for a visa must:
…
(d) if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500 – state:
(i) that the decision can be reviewed; and
(ii) the time in which the application for review may be made; …
Section 412 of the Act relevantly provided that:
(1) An application for review of a Part 7-reviewable decision must:
(a) be made in the approved form; and
(b) be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and
...
Subsection 494C(5) of the Act provided that:
(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.
Reg.4.31(2) of the Migration Regulations 1994 (“the regulations”) relevantly provided that:
For paragraph 412(1)(b) of the Act, if an applicant is not in immigration detention on the day the applicant is notified of a Part 7‑reviewable decision, 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.
DFQ17
In DFQ17, it was held that a purported notification under s.66(2)(d) of the Act was unclear in relation to the time in which an application could be made and that, consequently, the notification was ineffectual and time had not begun to run. The matters which made the notification unclear in DFQ17 included that the notification was sent by post, and it was accordingly difficult for the applicant to work out the date when he was notified of the delegate’s decision. That difficulty was compounded by the fact that the relevant information was spread over three different areas of the relevant letter.
With more precision, at paragraph 29 of the decision in FWQ18 v Minister for Immigration & Anor [2019] FCCA 2308, Judge Driver of this court explained the difficulties in DFQ17 in the following way:
The key difference between the instant case and DFQ17 is that, in DFQ17, there was additional complexity in calculating the prescribed review period, due to the fact the notification letter was sent by post. The calculation in DFQ17 was particularly complex due to the following factors:
a.section 494C(4)(a) applied in that case (but not in the present case). Section 494C(4)(a) uses the expression “7 working days...after the date of the document”, whereas reg 4.31(2) stipulates, “28 days, commencing on the day the applicant is notified of the decision”. This meant that it was necessary to have regard to s.36(1) of the Acts Interpretation Act 1901(Cth) to work out how to calculate the time, and resulted in one day having to be double-counted in DFQ17 at [45]; and
b.there was also the difference between the use of the term “days” in reg 4.31(2) and “working days” in s.494C(4)(a). As a result of the different terms used in those provisions, there was a material difference in what days were counted for the purpose of each provision. That is, the 7 day period was not inclusive of the first day, weekends and public holidays, whereas the 28 day period was inclusive of the first day, weekends and public holidays.
Ali
Following DFQ17, in Ali v Minister for Home Affairs [2019] FCA 1102, Nicholas J, sitting as a single judge of the Federal Court on appeal from this court, held that DFQ17 was distinguishable and that the relevant notification was effective. The practical point of distinction was that in Ali, but not in DFQ17, the notification was sent by email. Significantly, sending the notification by email meant that the date of notification was obvious. It was the date the email was sent, which could be readily ascertained. The date the email was read is immaterial. In Ali, as in the present case, the complications introduced by s.494C(4)(a) of the Act were absent.
Nicholas J also noted that, unlike in DFQ17, in Ali, there were only two parts of the notification that needed to be put together to work out the time frame. The two parts of the notification in Ali were:
Review rights
The decision can be reviewed.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 21 calendar days after the day on which you are taken to have received this letter.
…
Lodging an application for merits review
…
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.A 21 day time limit applied in Ali but in the present case the time limit was 28 days. In the present case, as in Ali, the notification was also sent by email. The relevant wording of the notification in the present case was:
Review Rights
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 refusal decision must be given to the AAT within the prescribed timeframe. This timeframe commences on the day on which you are taken to have been notified of this decision, and ends at the end of 28 days.
Please note that this review period is prescribed in law and an application for merits review may not be accepted after that date.
…
Financial or caseworker assistance
…
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 only apparent differences between Ali and the present case in the notifications are that:
a)strangely, in the present case, the advice that the applicant is taken to have received the notification at the end of the day it was transmitted was under the heading Financial and case worker assistance rather than under the heading Lodging an application for merits review as it was in Ali; and
b)in Ali, the notification said:
An application for merits review of this decision must be given to the AAT within 21 calendar days after the day on which you are taken to have received this letter …
whereas, in the present case, the notification said:
An application for merits review of this refusal decision must be given to the AAT within the prescribed timeframe. This timeframe commences on the day on which you are taken to have been notified of this decision, and ends at the end of 28 days.
FWQ18
While the notification in Ali is not precisely identical to the notification in the present case, the notification in the present case is precisely identical to the notification in FWQ18. The relevant parts of the notification in FWQ18 were set out in paragraph 9 of the reasons for decision in that case as follows:
The notification letter was set out in the following format:
a.the date that the notification letter was sent to the applicant was stated in the top left hand corner of the first page;
b.the notification letter contained a heading on the first page titled “Review Rights”, under which it stated:
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 refusal decision must be given to the AAT within the prescribed timeframe. This timeframe commences on the day on which you are taken to have been notified of this decision, and ends at the end of 28 days.
Please note that this review period is prescribed in law and an application for merits review may not be accepted after that date.
c.the notification letter contained a heading on the third page titled “Financial or case worker assistance”, under which it stated:
... 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.
Conclusion on DFQ17
In my view, the present case is relevantly indistinguishable from Ali, rather than DFQ17. Ali is binding on this court. Even if Ali is not relevantly indistinguishable from the present case, the present case is certainly indistinguishable from FWQ18. For reasons of judicial comity, I should follow FWQ18 unless I am satisfied that it is plainly wrong. I am not satisfied that FWQ18 is plainly wrong and I do follow it.
Residual arguments
It is not entirely clear what arguments, if any, remain for consideration. However, there may have been two.
a. The end of the day
It is possible that the applicant maintains an argument that the expression the end of the day is inherently ambiguous. I do not agree. The end of the day does not mean the beginning of the next day. As a matter of basic time keeping, every day, there is one second that is the last second of that day, and the next second is the first second of the next day. The end of the day is the last second of the first mentioned day. The applicant’s suggestion that there is judicial disagreement over the meaning of the end of the day is obfuscation.
b. The calculation of time
It is also possible that the applicant maintains an argument that the time was not properly calculated in the present matter. In FWQ18, the application was about three months out of time, so the precise calculation of time was unnecessary[1]. In Ali, the application was about a week out of time, so, again, the precise calculation of time was unnecessary. In the present case, the Tribunal considered the application to be one day out of time. Consequently, it is necessary to precisely calculate the time frames.
[1][1] Similarly, in BUY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 1787 the application was about five days out of time and in FJR18 v Minister for Home Affairs [2019] FCCA 2274 the application was about three days out of time.
As stated, the email was sent to the applicant on Wednesday 20 July 2016. It was common ground that, if 20 July 2016 is not counted, time ended on 17 August 2016, and if 20 July 2016 is counted, time ended on 16 August 2016. The application was lodged on 17 August 2016.
Applying s.494C(5) of the Act, the applicant was taken to have received the notification at the last second of 20 July 2016. The 28 days mentioned in reg.4.13(2) of the regulations was to commence on the day of notification.
In ordinary English, that means the first day of the 28 day period included the day of notification, being 20 July 2016. That is consistent with item 2 of s.36(1) of the Acts Interpretation Act 1901, which provides as follows:
Calculating time
A period of time referred to in an Act that is of a kind mentioned in column 1 of an item in the following table is to be calculated according to the rule mentioned in column 2 of that item:
| Calculating periods of time | ||
| Item … | Column 1 If the period of time: | Column 2 then the period of time: |
| 2 | is expressed to begin at, on or with a specified day | includes that day. |
In the present case, the period of time is expressed to commence on the day of notification. Commence means the same as begin. Therefore, the 28 day time period included the day of notification.
The applicant referred to Tio v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 126 FCR 185; (2003) 73 ALD 351; (2003) 197 ALR 117; (2003) 36 AAR 549; [2003] FCAFC 53. However, that case is of no assistance because it dealt with a different statutory formulation.
Conclusion
It is unnecessary to deal with the applicant’s grounds in the application in order because, apart from the matters discussed above, the grounds in the application were abandoned. For the reasons discussed above, the application to the Tribunal was out of time. As a result, the Tribunal did not have jurisdiction to deal with the matter. Consequently, the application to this court must be dismissed. As there were an unusual number of written submissions in this matter, I will hear the parties on the question of costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 26 September 2019
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