DZAFH v Minister for Immigration

[2017] FCCA 387

FEDERAL CIRCUIT COURT OF AUSTRALIA

DZAFH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 387

Catchwords:
MIGRATION – Application for Protection (Class XA) visa – where application for review given to detention centre officer to send to Refugee Review Tribunal – where application not transmitted by facsimile within the time prescribed for making application for review – where tribunal held it had no jurisdiction to determine application for review – where tribunals determination was correct.

Legislation:

Acts Interpretation Act 1901, s.36(1)

Migration Act 1958, ss.189, 411(1)(c), 412(1)(a), 412(1)(b), 414, 494B

Migration Regulations 1994, reg.4.31

Cases Cited:
Armstrong v Great Southern Gold Mining Co NL (1911) 12 CLR 383
Associated Dominions Assurance Society Pty Ltd v Balmford (1950) 81 CLR 161
Darwin Broadcasters Pty Ltd v Australian Broadcasting Tribunal (1990) 21 FCR 524
Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324
H v Minister for Immigration and Multicultural Affairs [2001] FCA 906
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
Vean of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003) FCAFC 311

Applicant: DZAFH

First respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second respondent: REFUGEE REVIEW TRIBUNAL

File Number: DNG 3 of 2015

Judgment of: Judge Jarrett

Hearing date: 18 November 2015

Date of Last Submission: 18 November 2015

Delivered at: Brisbane

Delivered on: 2 March 2017

REPRESENTATION

Counsel for the Applicant: Mr Reading

Solicitors for the Applicant: Holding Redlich Lawyers

Counsel for the First Respondent: Mr S Lee

Solicitors for the First Respondent: Australian Government Solicitor

The Second Respondent entered a submitting appearance.

ORDERS

1. The Further Amended Application filed on 31 July, 2015 be dismissed;

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 3 of 2015

DZAFH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. In H v Minister for Immigration and Multicultural Affairs [2001] FCA 906 Wilcox J said:

   [30]  [This] case points up the potential for injustice that is inherent in legislation that fixes a short time for taking a procedural step without conferring on anybody a discretion to extend that time.  I do not criticize the fixing of a short time for filing an application for RRT review of a delegate’s decision, even a time as short as seven working days.  It is important that everybody concerned with refugee applications acts with despatch.  The problem arises out of the inflexibility of the prescribed rules.  They make no allowance for the possibility of delay for reasons outside the control of an applicant.  That possibility is not confined to persons in immigration detention, but it seems especially acute in relation to them.  Detainees are in the hands of other people in relation to communication with the outside world, including with migration agents and the Refugee Review Tribunal.  The evidence in this case shows that detainees at Curtin are not, themselves, allowed to fax documents.  Presumably the same situation applies at other detention centres.  The situation is understandable.  However, it has the result that detainees have no control over transmission of documents.  If transmission is delayed or misdirected, the applicant’s right to review may be lost; yet without any fault on the part of the applicant.

2. In the present case, the risk identified by Wilcox J that the applicant’s right to review may be lost without any fault on his part has materialised.

3. The applicant before me was in immigration detention when he received notice that a delegate of the first respondent had refused his application for a Protection (Class XA) visa.  He determined to seek a review of that decision by a refugee review tribunal.  For that purpose, he filled out, in handwriting, a form approved for use as an Application for Review to the Refugee Review Tribunal.  He gave the completed form to a welfare officer at the detention centre in which he was held and asked her to fax his application to the New South Wales Registry of the tribunal.  She undertook to do so.  However, she did not do so until the day after it was given to her.  As will become apparent, that meant that the application for review was not made within the time period prescribed for doing so.  There is no prospect of the time limit being enlarged or extended.

4. The applicant lodged a second form of Application for Review by the Refugee Review Tribunal, but it seems that it was treated by the tribunal as if it were the application for review that the applicant had thought was faxed on his behalf on 18 or 19 November, 2014.  Whatever is the case, the tribunal determined that the application for review was not made within the time limited for doing so and the tribunal, therefore, decided that it had no jurisdiction to determine the application.

5. For the reasons that follow, I consider that the tribunal was correct to determine that it had no jurisdiction to determine the purported application for review.  Consequently, this application must be dismissed.

The facts

1. The applicant is a Nepalese citizen who first arrived in Australia on or about 18 January, 2009 as the holder of a temporary student visa. He was issued a further student visa in April, 2011 which was in effect until 15 March, 2013. From 16 March, 2013 until 2 September, 2014 the applicant resided in Australia without a visa. On 2 September, 2014 he was detained under s.189 of the Migration Act 1958 (Cth) and remains in immigration detention.

2. On 17 September, 2014 and whilst in detention, the applicant lodged an application for a Protection (Class XA) visa.  A delegate of the first respondent refused that application on 10 November, 2014.  The applicant was notified that same day of the delegate’s decision by delivery to him by hand of a decision notification letter and a copy of the decision record.

3. The delegate’s decision was an RRT-reviewable decision for the purposes of the Act: s.411(1)(c) of the Act. Accordingly, the applicant was required to give any application for review of the delegate’s decision to the tribunal within seven working days of being notified of the decision of the delegate: s.412(1)(b) of the Act and reg.4.31 of the Migration Regulations 1994 (Cth). That is to say, his application for review needed to be given to the tribunal no later than 18 November, 2015.

4. When he was notified of the decision to refuse his visa application, the applicant was in detention at the Villawood Detention Centre.  On 13 November, 2014 he was transferred from there to the Wickham Point Alternative Place of Detention.  In the process of being relocated, the applicant misplaced his copy of the first respondent’s decision.

5. On 17 November, 2014 the applicant prepared a review application in respect of the delegate’s decision to refuse his protection visa application.  He obtained another copy of the delegate’s decision from an officer at the Wickham Point centre.  He also obtained a pre-printed approved form to be used to seek a review of the delegate’s decision by a refugee review tribunal.  He completed the form.  He could not send it to the tribunal’s registry himself because he had no access to a facsimile machine, but he could seek the assistance of those at the Wickham Point centre for that purpose.  As subsequent events reveal, the applicant could have made his application “online”, but he swears that he did not know that as at 17 November, 2014.

6. The applicant swears that on 17 November, 2014 he handed the original of his review application, which he says was 12 pages in length, to Julie Kane, a Serco welfare officer apparently employed at the Wickham Point centre.  I am satisfied that the applicant gave to Ms Kane the application for review which had attached to it the notification letter from the first respondent’s delegate.  It appears that it did not have a copy of the decision record from the first respondent’s delegate attached to it as required by the approved form.

7. Ms Kane gave oral evidence before me.  She said that she knew the applicant and that she had, in the past, faxed correspondence for him.  She was not asked if she recalled faxing his application for review completed by him on 17 November, 2014.  She was not cross-examined.

8. I accept that the applicant:

   a.did not have access to a fax machine and therefore could not fax the review application himself;

   b.asked Ms Kane to fax his review application to the second respondent’s New South Wales Registry at the number [phone]; and

   c.she undertook to do so.

9. Exhibit 1 is a document described as “WPIDC Outgoing Fax Register’’ which records outgoing facsimiles from the Wickham Point centre.  Although Ms Kane does not remember this particular occasion, that document recorded that on 19 November, 2014 12 pages were recorded as sent by facsimile to the number [phone].   The entry is completed in handwriting, but the handwriting does not belong to Ms Kane. 

10. I am satisfied that on 19 November, 2014 Ms Kane returned the original form of review application to the applicant and said to him words to the effect: “I have faxed this for you”.

11. Between 19 November, 2014 and 17 December, 2014, the applicant became aware that his review application had apparently not been received by the second respondent.

12. On 17 December, 2014 the applicant submitted a second review application “online”.  I accept that he was not aware that he could submit an application for review online before 17 December, 2014.

13. On 19 December, 2014 the tribunal invited the applicant to comment on the validity of the application it had received.  The tribunal was concerned that the application for review was lodged on 17 December, 2014 outside of the seven working day time period limited for making such an application.

14. On 20 and 21 December, 2014 the applicant wrote to the second respondent explaining the steps he took to fax his original review application.  The tribunal made its own enquiries as to the applicant’s earlier attempt to lodge an application for review.  The tribunal found that on 19 November, 2014 a facsimile had been received from the applicant’s detention centre and that almost two pages of the November, 2014 letter notifying the applicant of his visa refusal had been received by the tribunal.  No other documents were received.

15. On 2 January, 2015 the tribunal made a decision that it did not have jurisdiction in relation to the applicant’s purported application for review.  The tribunal determined, erroneously as it turns out, that the applicant needed to lodge his application by 19 November, 2014 and he had not done so.  The tribunal noted that two pages of the delegate’s decision had been received on 19 November, 2014.  However, the tribunal determined that those pages did not constitute an approved form as required by s.412(1) of the Act and that they did not constitute a valid application for review.  The tribunal found that it had no jurisdiction to review the delegate’s decision.

16. On 5 January, 2015 the applicant was notified of the second respondent’s decision that it had no jurisdiction to determine his review application.

17. On 23 January, 2015 the applicant commenced these proceedings for judicial review of the tribunal’s decision.  In his application he specified his ground of review as follows:

    Immigration misunderstood the circumstances of my case. They made irresponsible decision without any proper knowledge about my case. RRT has violated my case and my right for justice [serco & my case officer did not help me with my application to fax to RRT and at last because of their careless (serco officer and case officer) there was a delay in my application so RRT did not accept my case]. Immigration has violated my right for communication, right for information, right for justice. They made decision without any proper knowledge about my case, without any investigation and information. According to the refugee act, as a refugee in Australia I got right to say all my words. View for my case which RRT did not allow. So I request with the court to accept my case in order to keep all my words so that I can feel that justice has been done.

18. The applicant filed a Further Amended Application on 31 July, 2015.  In that document he specified his grounds of review as follows:

    1. The decision of the Second Respondent was affected by jurisdictional error because it erred in finding that the basis for its jurisdiction to consider the application for review (the Application) did not exist.  In particular, the Second Defendant (sic) erred in finding that the Application was not:

    a. “given” to it, within the meaning of section 412(1)(b) of the Migration Act 1958 (Cth) (the Act), within the prescribed time period;

    b. “received” by its facsimile service (within the meaning of regulation 4.31AA(4) of the Migration Regulations 1994 (Cth) (the Regulations), within the prescribed time period; and

    c.  in the approved form, within the meaning of section 412(1)(a) of the Act:

    Particulars:

    i.   On 19 November 2014 at about 8:15am, being within the prescribed period set out in section 412(1)(b) of the Act and regulation 4.31 of the Regulations, the Applicant caused to be sent to the second respondent, by fax, an application in the approved form.

    ii. The form was at or about that time:

    1.sent to the facsimile service of the Second Respondent, at its New South Wales Registry; and

    2.was capable (at that time) of being received by the facsimile service of the Second Respondent.

The submissions

1. The applicant’s primary argument is that he gave to Ms Kane his completed application for review so that it could be faxed to the second respondent’s facsimile number. He could not do that himself and, in the circumstances, he had done all that he could do. She faxed it to the second respondent for him on 19 November, 2014 and the application was therefore properly made. His argument focussed upon the terms of s.412(1)(a) and the requirement to give to the tribunal an application for review. 

2. The respondent’s arguments focussed upon the failure by the tribunal to receive the applicant’s application at its facsimile machine in the New South Wales Registry of the tribunal.  Initially, the first respondent argued that the tribunal’s decision was correct because the tribunal had not received an application for review in the approved form from the applicant within a period of seven working days following notification of the delegate’s refusal of his visa application to the applicant.  The argument, as initially put in the first respondent’s written submissions assumed that the tribunal’s finding that the relevant time period expired on 19 November, 2014 was correct.  At paragraph 16 of the submissions filed on 10 April, 2015 on behalf of the first respondent it was said:

   The delegate’s decision was provided to the applicant by hand on 10 November 2014. The applicant was therefore required to have lodged his application for review using an approved form no later than 7 working days after 10 November 2014, being 19 November 2014.

3. However, as the arguments developed, the first respondent added a further submission that took issue with the tribunal’s finding that the prescribed period within which the review application could be made ended on 19 November, 2014.  That finding became controversial upon the delivery of the first respondent’s written submissions filed on 11 November, 2015.  In those submissions, for the first time, the first respondent argued that the prescribed period ended on 18 November, 2014 and so, even if the applicant’s other arguments were accepted, the applicant had nonetheless not commenced his application for review effectively.

4. The applicant, by his counsel, conceded that subject to one argument, if the relevant time period expired on 18 November, 2014 the present application was inevitably doomed to fail.  However, prompted by the first respondent’s reconsidered stance concerning the end date for the making of the applicant’s review application, the applicant took issue with the tribunal’s finding that he was properly notified of the delegate’s decision on 10 November, 2014. 

5. It is common ground that time did not commence to run until the applicant was properly notified of the delegate’s decision in accordance with the Act.  The first respondent contended that on 10 November, 2014 the applicant was handed a copy of the delegate’s decision by an authorised officer in accordance with s.494B(2) of the Act. The parties seemed agreed that s.494B(2) permitted the first respondent to discharge the obligation imposed upon him to notify the applicant of the decision on the visa application by having an authorised officer hand a copy of the decision notification letter to him. 

6. There is no dispute on the facts that the decision notification letter was handed to the applicant on 10 November, 2014.  But was it handed to him by an authorised officer for the purposes of s.494B(2) of the Act? A determination about that issue is a necessary step towards determining whether the tribunal’s jurisdiction was properly engaged. The applicant argued that there was no evidence that the person who handed him the delegate’s decision on 10 November, 2014 was an authorised officer for the purposes of s.494B of the Act. In turn, that prompted an application by the first respondent for leave to reopen his case to lead evidence from:

   a.an officer of the Department of Immigration and Border Protection which purported to prove that the person who handed the applicant a copy of the delegate’s decision was indeed appropriately authorised for the purposes of the Act; and

   b.the solicitor for the first respondent which purported to demonstrate that no public holidays fell in the relevant period commencing when the applicant was handed a copy of the delegate’s decision.

7. In respect of that application, I directed the parties to make any further written submissions about it that they wished to make and I otherwise reserved my determination of that application to be dealt with in these reasons.

8. The applicant opposes the first respondent’s application for leave to reopen.  However, I have resolved to permit the application in part.  The nature of the application before me raises factual issues about which the tribunal made some determinations but which are not immune from scrutiny in this Court.  Accordingly, both parties are able to challenge the findings of fact made by the tribunal and upon which it determined to deny itself jurisdiction.  There has not been an exchange of pleadings and so the factual issues have not been well defined.  They have emerged during the course of argument by each of the parties.  In those circumstances, it seems appropriate, given the way in which the relevant issues have developed, to permit the first respondent to reopen its case and lead further evidence on the most recently emerging factual issues.

9. In respect of the solicitor’s affidavit, the applicant takes issue and objects to paragraphs [3] and [5] of the affidavit on the basis that the evidence contained therein is hearsay.  The objection is well taken.  The evidence is inadmissible and I strike out both paragraphs [3] and [5] of that affidavit and the associated annexure.  The balance of the affidavit remains and the applicant has leave to read that evidence. 

10. The evidence contained in the affidavit of Cecilia Cheung sworn on 18 December, 2015 deals with whether the applicant was handed a copy of the delegate’s decision by an authorised officer for the purposes of s.494B of the Act. Apart from his opposition to the first respondent being permitted to reopen his case to lead evidence from Ms Cheung generally, the applicant took no objection to the evidence that the first respondent proposed to lead from her. The applicant, however, made a number of submissions about the weight which might be afforded to that evidence.

1. The issue of the notification of the delegate’s decision to the applicant was not the subject of controversy before the tribunal.  Indeed, there seems to be no doubt that the applicant received a copy of the delegate’s decision on 10 November, 2014.  The only issue which now arises is whether the person that gave a copy of that decision or notice of that decision to the applicant was an authorised person for the purposes of s.494B of the Act.

Discussion

1. Whilst mere factual error by a tribunal will not ground judicial review, if the factual error relates to a jurisdictional fact judicial review of the decision is available: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [53]. That is to say, if the tribunal has wrongly denied itself jurisdiction to hear and determine a review because of a factual error, the decision is liable to be set aside.

2. In circumstances such as the present, the Court is obliged to determine the jurisdictional facts for itself and is not bound by the factual determinations of the tribunal.  To the extent that the evidence permits, this Court can make its own findings about those factual matters so as to determine if there is jurisdictional error on the part of the tribunal.

The period in which the application might have been commenced

1. The tribunal’s determinations about the relevant time period are critical to its determination about the existence of its jurisdiction.  A consideration of those findings requires a determination of when the relevant period commenced and when it concluded.  Both of these matters have given rise to argument as the parties’ submissions were developed.

2. There is evidence that the applicant received the refusal notification letter and the visa decision record from his “VIDF Case Manager” on 10 November, 2014.  He signed a receipt for the documents that he was given.  The receipt is in evidence: supplementary court book filed on 10 April, 2014 read by the applicant, at page 1.  The identity of the “VIDF Case Manager” does not appear on the receipt.  The applicant swore (in his affidavit filed on 7 August, 2015) that he could not recall the name of his case officer, although he thought it might be “Anna”.

3. The applicant did not seek to cross-examine the first respondent’s witness, Cecilia Cheung.  Ms Cheung gave evidence that she was an Acting Border Force Inspector in the Operations Group of Australian Border Force, Department of Immigration and Border Protection.  She had been in that role since August, 2015.  Prior to 1 July, 2015 she was a Senior Case Manager in the Compliance, Operations and Detention division of the Department of the first respondent’s Department.  She was based at Villawood Immigration Detention Centre and she was responsible for the supervision of two other case managers.  Ms Cheung had access to the records of the first respondent’s Department which it kept in the ordinary course of its operations.  A record was kept of the case manager who was assigned to each detainee from time to time.  According to the records inspected by Ms Cheung the applicant’s case manager on 10 November, 2014 was Amina Kaddouh.  During November, 2014 Ms Kaddouh was under the supervision of Ms Cheung.  Ms Cheung gives evidence (although she does not disclose the source of her information and belief in respect of it) that Ms Kaddouh was employed at an APS 5 level in the Compliance Operations and Detention division of the Department.  Ms Cheung swears to inspecting the receipt signed by the applicant and his case manager which appears at page 1 of the supplementary court book filed on 10 April, 2014.  Without any objection, Ms Cheung deposes to having searched the records of the first respondent’s Department and to having located samples of Ms Kaddouh’s signature.  She swears that based on that “information” and that “over the course of supervising Ms Kaddouh, [Ms Cheung] would have seen her signature on numerous occasions”.  Ms Cheung expresses the opinion that the signature on the receipt at page 1 of the supplementary court book is the signature of Ms Kaddouh.

4. By an instrument of delegation signed on 28 August, 2014 the then Minister for Immigration and Border Protection issued a delegation of his powers under the provisions of the Act and Regulations specified in the schedule to the instrument to each person holding or occupying or performing the duties of a position at the level indicated in the schedule to the instrument and whose usual place of employment was in Australia.  By the instrument of delegation the first respondent authorised the person holding or occupying or performing the duties of the position at the level indicated in the schedule to the instrument whose usual place of employment is in Australia to be an authorised officer for the purposes of the provisions of the Act that are specified in the relevant columns of the schedule to the instrument. Relevantly, the Minster’s power under s.494B was delegated to an APS 5 level officer in the Compliance, Operations and Detentions Division of the first respondent’s Department in all states and territories.

5. I am invited by the first respondent to find that the refusal notification and the decision record were handed to the applicant by an authorised officer for the purposes of s.494B of the Act and specifically, by Ms Kaddouh. An inference is able to be drawn from Ms Cheung’s evidence to that effect. The applicant, however, argues that I should not draw the inference and that I should not place any weight on Ms Cheung’s evidence because there is no explanation as to why Ms Kaddouh has not given evidence herself to identify her signature on the document or depose to the fact that she was an APS 5 level officer for the purposes of the instrument of delegation. There is, the applicant points out, no explanation for the absence of that evidence.

6. Whilst there is considerable force in the applicant’s arguments, ultimately I am persuaded that I ought to draw the inference contended for by the first respondent.  I find that on 10 November, 2014 the applicant was handed a copy of the refusal notification letter and the decision record by an authorised officer of the first respondent as provided for in s.494B of the Act. That is consistent with the tribunal’s finding about that matter.

7. However, I am persuaded that the tribunal was wrong to conclude that the time within which the applicant had to give his review application to the tribunal expired on 19 November, 2014.  Seven working days after 10 November, 2014 was 18 November, 2014. 

8. It is necessary to include 10 November, 2014 in the relevant calculations. By s.412(1)(b) of the Act, the application must be given to the tribunal “within the prescribed period”. By reg.4.31 of the Regulations, “the period in which the application ... must be given to the Tribunal ... is 7 working days, commencing on ... the day the applicant is notified of the decision”. The day the decision was notified to the applicant was 10 November, 2014 a Monday. A period of seven working days commencing on Monday, 10 November, 2014 came to an end at midnight on Tuesday, 18 November, 2014.

9. I accept the first respondent’s argument that the words of the legislative scheme are unequivocal. The relevant period commences to run on the day the decision is notified. Moreover, s.36(1) of the Acts Interpretation Act 1901 (Cth) requires that the first day be included. It provides that, where the period “is expressed to begin at, on or with a specified day”, the period is taken to include that specified day. That is consistent with the natural meaning of the language of the subsection: Darwin Broadcasters Pty Ltd v Australian Broadcasting Tribunal (1990) 21 FCR 524.

10. The last day of the relevant period is also included in the prescribed period.  That is clear from the use of the phrase “within the prescribed period”: Associated Dominions Assurance Society Pty Ltd v Balmford (1950) 81 CLR 161, 182-3; Armstrong v Great Southern Gold Mining Co NL (1911) 12 CLR 383 at 388.

11. As the first respondent points out the applicant indeed acknowledged that time expired on 18 November, 2014 (see his letter to the tribunal dated 20 December, 2014 at page [48] of the court book filed on 13 March, 2015).   

12. Thus, even if it was sufficient for the applicant to demonstrate that he had caused his application for review to be transmitted by facsimile to the registry of the tribunal rather than demonstrating that the tribunal had received by facsimile the whole of his application, his application was nonetheless out of time.  On his case it was not transmitted to the tribunal until 19 November, 2014. 

13. The qualification to counsel’s concession that this determination is fatal to the application that I referred to earlier, is that Ms Kane was, for the purposes of giving the proposed review application to the tribunal registry, the first respondent’s representative and that the first respondent, by his representative prevented the applicant from properly making his review application.

14. The applicant submits that I should accept that the remarks of Wilcox J in H v Minister for Immigration and Multicultural Affairs (above) demonstrate that an officer employed at a detention centre could cause “prejudice” to an applicant and that might lead to the conclusion, in the present case, that the review application was either made within the relevant time frame, or ought to be taken to have been made within the relevant time frame.  The applicant argues that the only reason his review application was not filed within the prescribed time was due to actions of persons exercising statutory functions on the first respondent’s behalf.

15. But H v Minister for Immigration and Multicultural Affairs (above) is against the applicant’s contentions in this case.  In that case, a delay by a detention centre officer in sending a relevant and necessary form by facsimile to the applicant’s migration agent led to the applicant failing to commence his application for review within time (also seven days from receipt of the delegate’s decision).  Wilcox J said:

    [32]  In the present case, the delay of four working days that occurred in the faxing by Curtin IRPC of the signed Form 956 to Dr Al Jabiri did not waste all the allowable seven working days.  However, it seems to have been the critical element in the application becoming out of time.  So the applicant suffered a serious prejudice for which he was not to blame and for which he has no redress.  Moreover, this is not the worst possible case.  It is not difficult to imagine a case where a document, even an application for review, is overlooked by an IRPC officer for the whole seven working days or is misdirected, so it is not received by the Tribunal within the time allowed under reg 4.31.  Even in such a case, as I understand the position, nothing could be done to rectify the error.  Perhaps the Minister might be persuaded to permit the applicant to start again, by lodging a second application for a protection visa: see s 48B of the Act.  However, Mr Curthoys mentioned one possible difficulty about this; strictly speaking, an obligation to remove the applicant from Australia would have come into existence as soon as the decision on the first protection visa application became final: see s 198 of the Act.

16. The applicant submits that Parliament could not have intended that the Migration Act is to be interpreted so that actions of the first respondent can prevent a person from exercising their statutory right of review pursuant to s.412 of the Act.

17. However, to determine the application as the applicant contends requires a finding that either:

    a.giving the application for review to Ms Kane so that she might send it to the tribunal’s registry was sufficient to give the application to the tribunal for the purposes of ss.412 and 494B of the Act; or

    b.Ms Kane was the agent of the tribunal for the purposes of receiving the application for review.

18. I can make neither finding on the evidence before me.  On no view of the evidence could it be said that Ms Kane was an agent for either the tribunal or the first respondent for relevant purposes.  The Act prescribes the way in which the review application could be given to the tribunal.  It need not be given to the tribunal by the applicant.  It could be given by someone acting on his behalf.  That is what occurred here.

19. Moreover, the potential for injustice arising from the inability to extend the time within which to commence an application for review in such circumstances as the present has been the subject of comment, but nonetheless, the position remains.  Again, in H v Minister, Wilcox J said:

    [33] I do not intend, by these comments, to intrude into the area of policy. I accept that the policy underlying the Migration Act and Migration Regulations is a matter for Parliament, not for courts. However, if a judge finds, in the course of determining a case, that legislation implementing that policy has the potential to visit serious injustice on individuals, it is the judge’s duty to call that situation to attention. With that in mind, and without making any formal direction about the matter, I express the confident hope that the solicitors acting in this case for the Minister will draw these comments to his personal attention.

Conclusion

1. An application not made in accordance with s.412 of the Act is not a valid application and the tribunal has no jurisdiction to review the primary decision under s.414: Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324, affirmed by the Full Court in Vean of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003) FCAFC 311.

2. Here, no valid application for review was made within the time limited for that purpose by s.412 of the Act.  The present application must be dismissed with costs.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 2 March, 2017.

Date: 2 March, 2017