Dovarua v Minister for Immigration

[2015] FCCA 3114

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOVARUA & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3114

Catchwords:
MIGRATION – Application to review decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal) that it did not have jurisdiction – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.66, 347, 348, 494B, 494C

Migration Regulations 1994 (Cth), reg.4.10
Federal Circuit Court Rules 2001 (Cth)

First Applicant: MELAIA LAIVOU DOVARUA

Second Applicant: NATHANIEL ANTHONY ANDERSON DOVARUA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2960 of 2014

Judgment of: Judge Barnes

Hearing date: 9 November 2015

Delivered at: Sydney

Delivered on: 9 November 2015

REPRESENTATION

First Applicant: In person

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.

2. The Application be dismissed.

3. The First Applicant pay the costs of the First Respondent fixed in the sum of $5,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2960 of 2014

MELAIA LAIVOU DOVARUA

First Applicant

NATHANIEL ANTHONY ANDERSON DOVARUA

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Migration Review Tribunal, now known as the Administrative Appeals Tribunal.  By decision of 19 September 2014 the Tribunal found that it did not have jurisdiction in relation to an application for review of a decision of a delegate of the Minister.  The delegate had decided not to grant the First Applicant a student visa.

2. The Applicants are the First Applicant, a citizen of Fiji who was previously a holder of a student visa, and the Second Applicant, her child, who was born in November 2013.

3. In March 2014 the First Applicant, who I will refer to for convenience as the Applicant, lodged an application for a student visa.  She did not include any other applicants in that application, although her migration agent advised the delegate of the fact that she had given birth to the Second Applicant.

4. The Applicant appointed a migration agent, Peter Brendling, as her authorised recipient to receive documents in relation to the visa application.  She and the agent completed a Form 956 providing the agent’s contact details.  She provided supporting documents in relation to her visa application.  However, by a decision dated 22 May 2014, a delegate of the Minister refused the visa application.  The delegate was not satisfied that the Applicant was a genuine applicant for entry and stay as a student.

5. The letter enclosing the decision record was addressed to the Applicant care of her migration agent’s firm and, as attested to in the affidavit of Elizabeth Warner Knight sworn on 2 November 2015, was sent by email to the Applicant care of Mr Brendling on 22 May 2014.  That letter advised the Applicant of her review rights, including the fact that an application for review must be given to the Migration Review Tribunal within 21 calendar days after the day on which she was taken to have received the letter, that this review period of 21 days was prescribed in law and that an application for merits review may not be accepted after that date.

6. By application lodged with the Tribunal on 29 July 2014 the Applicant sought review of the delegate’s decision.  She included her son, Nathaniel, in the review application.

7. The Tribunal wrote to the Applicants on 28 August 2014 inviting them to comment on the Tribunal officer’s view that the applications (sic) were not valid applications as they had not been lodged within the applicable time limit and also raising the fact that it appeared that Nathaniel had not been the subject of any decision by the delegate.

8. The Applicant responded by letter of 10 September 2014 (faxed on 11 September 2014) explaining that due to difficulties in her personal situation she had overlooked attending immigration matters and that this had resulted in the delay.  She referred to particular difficulties that she and her child had suffered in the months of May to July 2014.

9. The Tribunal’s decision record is expressed to apply to both Applicants.  The Tribunal found, very briefly, that it had no jurisdiction in this matter as the review application was not made in accordance with the relevant legislation.

10. The Tribunal referred to the fact that under the applicable section of the Migration Act 1958 (Cth) (the Act) and the Migration Regulations 1994 (Cth) (the Regulations), the application for review had to be made within 21 days after the Applicant was notified of the delegate’s decision (s.347(1)(b) and reg.4.10). It found that the Applicant was notified of the delegate’s decision by letter dated 22 May 2014 and dispatched by email in accordance with the statutory requirements.

11. It referred to the fact that it had written to the Applicant to enable her to comment on the jurisdiction issue and to her response about her personal difficulties.

12. The Tribunal found that, in accordance with s.494C of the Act, the Applicant was taken to have been notified of the delegate’s decision on 22 May 2014 and that therefore the prescribed period within which the review application could be lodged ended on 12 June 2014. The application for review was not received until 29 July 2014. The Tribunal found that it was not made in accordance with the relevant legislation and that it had no jurisdiction.

13. The Applicants sought review by application filed in this Court on 24 October 2014.  There is one ground in the application.  It emphasises that the Applicants were experiencing personal difficulties at the time when the review application should have been lodged and explains that these difficulties led to the late lodgement.  It refers to the fact that on 11 September 2014 the Applicants had provided the Tribunal with this explanation for the late lodgement.  It contends that the Tribunal did not accept the explanation and did not treat the Applicants with fairness and justice and would not give them an extension of time. 

14. The Applicants did not file written submissions.  The First Applicant had the opportunity to make oral submissions today.  She made claims about hardship and financial and other difficulties consistent with the claims she had made to the Tribunal.  She referred to her studies in Australia and her wish to continue studying. 

15. However the Applicant’s concern with the Tribunal decision appears to be based on a misconception that the Tribunal had a discretion to grant her an extension of time within which to seek review.  However, as the Minister submitted, that is not the case. 

16. As the Tribunal found, albeit briefly, the application for review of the delegate’s decision had to be made within the prescribed period under s.347(1)(b) of the Act and reg.4.10 of the Regulations. Under reg.4.10 the prescribed period starts when the Applicant receives notice of the delegate’s decision and ends 21 days after the day on which the notice is received.

17. By virtue of s.494B(5) of the Act, the Minister may give a document to a person by transmitting it by email to the last email address provided to the Minister for the purposes of receiving documents. In this case, the delegate’s decision was made on 22 May 2014. That decision was notified to the Applicant by email of 22 May 2014 sent to the email address for the applicant’s migration agent, which was the email address provided in connection with the visa application. There is no suggestion in the material before the Court that there was any change to that address provided to the department. Hence, under s.494C(5) of the Act, the Applicant was taken to have received the delegate’s decision at the end of the day on which it was transmitted to her by email.

18. Thus, the Applicant was taken to have received the delegate’s decision on 22 May 2014.  As the Tribunal found, this meant that she had to lodge her review application by 12 June 2014 or else it would be out of time and the Tribunal could not consider it.  The review application was not lodged until 29 July 2014, which was over two months after the date on which the Applicant was taken to be notified of the delegate’s decision. 

19. On the evidence before the court, including the affidavit of Ms Warner Knight, it is clear that the Applicant was notified of the delegate’s decision in accordance with the statutory requirements. The notification letter complied with s.66(2) of the Act. It was dispatched to the correct email address. It advised the Applicant of her review rights and of the time limit for a review application. The Tribunal correctly found that the application for review had been lodged outside the time limit and that hence it had no jurisdiction to review the delegate’s decision.

20. Insofar as a question of procedural fairness arose, the Tribunal met any requirement of procedural fairness in this context by the natural justice letter it sent to the Applicants on 28 August 2014.  No error has been established in the Tribunal’s findings in relation to its jurisdiction to review the delegate’s decision in relation to the First Applicant.   

21. The Tribunal’s decision covered both Applicants.  The Tribunal found that the review application was not made in accordance with the relevant legislation and that it did not have jurisdiction.  In its discussion of the applicable statutory requirements it addressed only the issue of the time for lodging an application for review.  

22. I gave the parties the opportunity to make submissions in relation to the Tribunal’s decision about the Second Applicant, having regard to the fact that, whether or not the Applicant intended her son to be included in her visa application, it is clear that the delegate’s decision did not include the Second Applicant. 

23. While the Tribunal did not discuss this issue in its reasons for decision, the fact that the Second Applicant was not the subject of the delegate’s decision means that there was no reviewable decision in relation to the child, Nathaniel (see s.348 of the Act). In those circumstances the Tribunal’s conclusion that it had no jurisdiction was correct in relation to the Second Applicant as well as in relation to the First Applicant (even if it may have reached this conclusion for the wrong reason). I note in that respect that had the Second Applicant been the subject of the delegate’s decision, his review application would, in any event, have been out of time as he did not apply to the Tribunal until 29 July 2014.

24. In circumstances where the Second Applicant was not the subject of a decision by the delegate, the Tribunal’s conclusion that it had no jurisdiction was the correct and only conclusion available to it.  Even if it could be said that the Tribunal fell into error in some way in failing to refer expressly to the Second Applicant’s circumstances in its reasoning, there would be no utility in remittal and I would decline relief on that basis.

25. Insofar as the Applicant referred to her difficulties, her wish to obtain a further visa and/or to have her application considered by the Tribunal, as I endeavoured to explain to her, neither the Tribunal nor the Court has any discretion in that respect.  For the reasons given, the application for review of the Tribunal decision should be dismissed.

26. As the First Respondent sought, an order should be made that the name of the Second Respondent be changed to the Administrative Appeals Tribunal. 

27. The Applicants have been unsuccessful and the Minister seeks an order that the First Applicant pay his costs in the sum of $5,500.  This is less than the amount provided for in the Federal Circuit Court Rules 2001 (Cth). The Applicant told the Court that she and her son were in financial difficulties and that she had no work. These circumstances are not a reason for departing from the normal principle that an unsuccessful applicant should meet the costs of the First Respondent, or for reducing the amount of the costs sought, which is reasonable and appropriate in light of the nature of this and other similar matters, although the Applicant’s circumstances may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date: 20 November 2015