DWM20 v Minister for Immigration
[2020] FCCA 2950
•29 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DWM20 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2950 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – Tribunal finding it lacked jurisdiction due to late lodgement of review application – applicant properly notified of delegate’s decision – review in fact lodged late – no arguable case of jurisdictional error. |
| Legislation: Administrative Appeals Tribunal Act 1975 (Cth), ss.24Z, 25, 29 Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.66, 411, 412, 476, 494C Migration Regulations 1994 (Cth) |
| Cases cited: ALN19 v Minister for Home Affairs [2019] FCCA 3726 BAQ18 v Minister For Home Affairs [2018] FCCA 1900 Beni v Minister for Immigration (2018) 267 FCR 15 Calimoso v Minister for Immigration (2016) 70 AAR 503 DFQ17 v Minister for Immigration (2019) 270 FCR 492 EHF17 v Minister for Immigration [2019] FCA 168 Koro v Minister For Home Affairs [2018] FCCA 3106 Minister for Immigration v DZU16 (2018) 253 FCR 526 NBKT v Minister for Immigration (2006) 156 FCR 419; [2006] FCAFC 195 Serroukh v Minister for Immigration [2017] FCCA 3241 SZEYK v Minister for Immigration [2008] FCA 1940 |
| Applicant: | DWM20 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1993 of 2020 |
| Judgment of: | Judge Driver |
| Hearing date: | 29 October 2020 |
| Delivered at: | Sydney |
| Delivered on: | 29 October 2020 |
REPRESENTATION
The Applicant appeared in person by telephone
| Solicitors for the Respondents: | Mr S Valliappan of Minter Ellison |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and 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 1993 of 2020
| DWM20 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 10 August 2020. The Tribunal found that it did not have jurisdiction in the matter. That was because the applicant’s review application to the Tribunal had been lodged two days late.
Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 21 October 2020, which I adopt.
The applicant is a citizen of Tonga who arrived in Australia on 23 August 2017 as the holder of a visitor (Class FA) (subclass 600).[1]
[1] Court Book (CB) 39 and 161
On 7 April 2020, the applicant was detained in Villawood Immigration Detention Centre (Villawood).[2]
[2] CB 42
On 23 April 2020, the applicant lodged an application for a protection visa.[3] On 14 May 2020, a delegate of the Minister (delegate) made a decision to refuse to grant the applicant the visa. The transmission method of the notification of decision and the decision record was by hand.[4]
[3] CB 25 and 64
[4] CB 119
On 24 May 2020, the applicant lodged an application for merits review with the Tribunal.[5]
[5] CB 133–134
On 4 June 2020, the Tribunal wrote to the applicant inviting him to comment on the validity of his application and noted the following:[6]
a)pursuant to subregulation 4.31(2) of the Migration Regulations 1994 (Cth) (Regulations) the period in which an application for review of a Part 7 reviewable decision must be given to the Tribunal is 7 working days, commencing on the day the applicant is notified of the decision. The primary decision was handed to the applicant on 14 May 2020 meaning he was taken to be notified on that date. Accordingly, the last day for lodging the application for review was 22 May 2020.
[6] CB 148–149
On 9 June 2020, the applicant responded by email and explained that he was presently in Villawood and had his matter assigned to the welfare department. The applicant claimed he received and was made aware of the letter on 15 May 2020. The applicant was assisted with his review application; however, staff were not always present to help because of restrictions in place as a result of the virus. The applicant did not have the computer skills to apply himself and had difficulty understanding the documents in the absence of an interpreter. [7]
[7] CB 154
On 10 August 2020, the Tribunal found that it did not have jurisdiction.[8]
[8] CB 160
Tribunal decision
The Tribunal noted that a Department case note made on 14 May 2020 by the delegate confirmed that the notification of decision was given to the applicant by hand on the same day. The Tribunal commented that the applicant may believe that he received the notification the following day or was not being truthful but that this did not change the facts confirmed by the case note. Accordingly, at [8], the Tribunal preferred the evidence of the departmental records over the evidence of the applicant and was satisfied it was accurate.
The Tribunal found at [9] the applicant was taken to have been notified of the decision on 14 May 2020 pursuant to s.494C of the Migration Act 1958 (Cth) (Migration Act) and therefore the prescribed period to apply for review ended on 22 May 2020. It noted at [10] there was no power for it to extend the time for lodging a review application. As the application for review was not received until 24 May 2020 the Tribunal considered at [11]–[12] the application for review was not made in accordance with the relevant legislation and was invalid.
The present proceedings
These proceedings began with a show cause application filed on 24 August 2020. Although there are eight paragraphs and numerous sub-paragraphs under the heading “Grounds of the Application”, there is a degree of duplication. The Minister discerns four grounds from the application:
a)the Tribunal denied the applicant procedural fairness in failing to give him an opportunity to explain why his application was made out of time;
b)pursuant to s.29 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) the Tribunal may extend the time for making an application for review;
c)the applicant did not understand the migration review process and did not have access at all times to the welfare department staff assigned to assist him; and
d)the delegate erred in failing to put to the applicant adverse information and findings which were not obviously open on the material.
I have before me as evidence the affidavit filed by the applicant with his application, to the extent that it makes assertions of fact. I also have before me as evidence the court book filed on 18 September 2020. Although the applicant told me he had only received documents relating to today’s hearing from detention centre officials last night, he did not object to my receipt of the court book in evidence.
The Minister filed an outline of submissions and list of authorities on 21 October 2020. The applicant told me that he had not had the opportunity to read those submissions. With the applicant’s agreement, I dealt with that by calling upon the Minister’s solicitor to summarise the Minister’s submissions. I then invited the applicant to respond. He had nothing to say.
I explained to the applicant that the Tribunal lacked any jurisdiction to extend time in this case. Although the applicant feels disadvantaged and is seeking legal assistance, the legal issue here is whether the Tribunal was correct in finding that it lacked jurisdiction. There is no doubt that the merits review application was lodged with the Tribunal two days out of time.
The notification of the delegate’s decision is reproduced from CB 119. The form of that letter has been changed, presumably in response to judicial criticism of earlier forms of the letter. The form of letter sent to the applicant clearly set out his review rights.
I otherwise agree with and adopt the Minister’s submissions concerning the grounds in this case.
Ground 1
The applicant's complaint that he was not given an opportunity to respond to whether his application to the Tribunal was valid is plainly without merit. The requirements of procedural fairness prescribed in Part 7 of the Migration Act have no application in circumstances where the Tribunal has found it has no jurisdiction and does not proceed to conduct a review. To the extent that the Tribunal was required to afford common law procedural fairness, those obligations were discharged.[9]
[9] SZEYK v Minister for Immigration [2008] FCA 1940 at [34]–[35] per Bennett J
The Tribunal sent to the applicant an invitation to comment noting that it had formed the view the application was not valid as it was not lodged within the relevant time limit of seven working days from the day he was taken to have been notified. The applicant responded to the invitation to comment and the Tribunal expressly considered the applicant's argument at [8] of the decision record. Accordingly, the argument fails to raise an arguable case of jurisdictional error.[10]
[10] Serroukh v Minister for Immigration [2017] FCCA 3241 at [30]–[31] per Judge Dowdy
In relation to the applicant's submission to the Tribunal that he received the notification of decision on 15 May 2020, regulation 5.02 of the Regulations provides that for the purposes of the Migration Act and those Regulations, a document to be served on a person in immigration detention may be served by giving it to the person himself or herself, or to another person authorised by him or her to receive documents on his or her behalf. Regulation 5.01 defines a document as, relevantly, an invitation, notice, notification or statement in writing.[11]
[11] NBKT v Minister for Immigration (2006) 156 FCR 419; [2006] FCAFC 195 at [25] per Young J
The Tribunal obtained from the department the applicant's ICSE records in which it was recorded that the notification of decision was actioned on 14 May 2020. In the data entry is the description “[l]etter given to client”.[12] Further, the applicant signed an acknowledgment form confirming that he had received the notification of decision and the decision record of the delegate on 14 May 2020.[13] Accordingly, the jurisdictional fact has been established, that is, the applicant received the documents on 14 May 2020 and not the following day.[14]
[12] CB 153
[13] CB 132
[14] see EHF17 v Minister for Immigration [2019] FCA 168 at [64] per Derrington J and cf. Minister for Immigration v DZU16 (2018) 253 FCR 526 at [72]–[75] per Robertson, Murphy and Kerr JJ
Under s.494C(2) of the Migration Act, the applicant was deemed to have received the notification of decision when it was handed to him. Further, subregulation 4.31(1) of the Regulations relevantly provided that:
(1)For paragraph 412(1)(b) of the Act, if an applicant is 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 7 working days, commencing on:
(a)the day the applicant is notified of the decision; or
(b)if that day is not a working day--the first working day after that day.
The applicant was in detention on the day he was notified of the decision which was a Thursday. He accordingly had seven working days from that day to apply for review in accordance with s.412 of the Migration Act. The time period commenced “on” the day the applicant was notified (14 May 2020) and so the last day for the applicant to lodge his application for merits review with the Tribunal was Friday, 22 May 2020.[15] Accordingly, the applicant's application was two days out of time.
[15] ALN19 v Minister for Home Affairs [2019] FCCA 3726 at [16] per Judge Dowdy
In relation to the structure of the notification of decision, the Tribunal did comply with s.66(2)(d) of the Migration Act. The letter informs the reader that the decision of the delegate can be reviewed, the time in which an application for review can be made including when the applicant is taken to have been notified, who can apply for review and where the review can be made. Further, the relevant information is all set out in the one section under the logical heading of “Review rights”.[16]
[16] cf. DFQ17 v Minister for Immigration (2019) 270 FCR 492 at [62] per Perram J
Ground 2
Turning to the applicant's reliance on s.29 of the AAT Act, the ground is misconceived. The Tribunal was correct to conclude that s.29 did not apply to the proceeding which was before it by virtue of s.24Z of the AAT Act. Further, no part of s.25 of the AAT Act or other sections had the effect of applying s.29 to such proceedings.[17]
[17] Beni v Minister for Immigration (2018) 267 FCR 15 at [83] per McKerracher, Reeves and Thawley JJ
Ground 3
The applicant's contentions that he did not understand how to apply for merits review and was not always assisted by the welfare department at Villawood cannot stand in light of the legislation and authorities. The time period in which an application for review must be filed is absolute. The Tribunal has no discretion to extend the time in which an application may be made. The harsh consequence is one brought about by regulation 4.31 of the Regulations and s.412 of the Migration Act and by the absence of any provision granting a discretionary power on the Tribunal to alter the statutory time frame.[18]
[18] Calimoso v Minister for Immigration (2016) 70 AAR 503 at [29] per Charlesworth J
Ground 4
The applicant makes a series of arguments aimed at the decision and procedure before the delegate. Section 476(2)(a) of the Migration Act provides that this Court has no jurisdiction in relation to a primary decision. Further, s.476(4)(a) of the Migration Act defines a primary decision as a privative clause decision or purported privative clause decision that, among other things, is reviewable under Part 7 of the Migration Act.[19] The decision of the delegate was a Part 7 reviewable decision, being a decision of the type identified in s.411(1)(c) of the Migration Act; namely, a decision to refuse to grant a protection visa. Accordingly, the decision was a primary decision excluded from the operation of s.476(1).[20]
[19] Koro v Minister For Home Affairs [2018] FCCA 3106 at [5] per Judge Driver
[20] BAQ18 v Minister For Home Affairs [2018] FCCA 1900 at [15]–[19] per Judge Manousaridis
I conclude that the applicant is unable to establish an arguable case of jurisdictional error by the Tribunal. I will therefore order that the application be dismissed under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 4 November 2020
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