EBE17 v Minister for Immigration & Anor
[2018] FCCA 45
•10 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EBE17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 45 |
| Catchwords: PRACTICE AND PROCEDURE – Where no grounds of review specified – whether sufficient to warrant dismissal. PRACTICE AND PROCEDURE – Review application to Tribunal – calculation of time limitation. |
| Legislation: Administrative Decisions Judicial Review Act 1975 (Cth) Migration Act 1958 (Cth), ss.412, 414, 474, 476, 494B, 494C Migration Regulations 1994 (Cth), regs.2.16, 4.31 |
| Cases cited: AQN15 v Minister for Immigration & Border Protection [2016] FCA 571 |
| Applicant: | EBE17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 486 of 2017 |
| Judgment of: | Judge Lucev |
| Hearing date: | 22 December 2017 |
| Date of Last Submission: | 22 December 2017 |
| Delivered at: | Perth |
| Delivered on: | 10 January 2018 |
REPRESENTATION
| The Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Mr PJ Corbould |
| Counsel for the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS (as made 22 December 2017)
The application be dismissed.
Formal written reasons for judgment be published by Chambers at a later date.
The applicant pay the first respondents costs in the sum of $7328.00 by 22 January 2018.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 486 of 2017
| EBE17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 22 December 2017 this application for judicial review (“Judicial Review Application”) under the Migration Act 1958 (Cth) (“Migration Act”) was heard, and the Court delivered short oral “Reasons for Judgment” before ordering 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 $7328.00 by 22 January 2018.
What follows are the formal written Reasons for Judgment referred to in order 2 of the 22 December 2017 orders made by the Court.
The Judicial Review Application
On 11 September 2017 the applicant lodged the Judicial Review Application seeking review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to refuse the applicant a protection (Class XA) visa (“Protection Visa”). A copy of the Tribunal Decision dated 4 September is at Court Book (“CB”) 89.
Background
The background to the matter prior to Tribunal Decision is as follows:
a)the applicant, a Malaysian citizen, arrived in Australia on 24 December 2016 on a valid UD-601 Electronic Travel Authority Visa: CB 43;
b)on 15 March 2017 the applicant applied for a Protection Visa and relevant to this proceeding it should be noted:
i)he provided a current residential address and an email address: CB 21
ii)he requested all written communications be addressed to himself: CB 14; and
iii)he responded ‘Yes’ when asked on his Protection Visa application form if he agreed to the Department of Immigration and Border Protection (“Department”) communicating via electronic means in relation to his application: CB 21;
c)the Delegate’s Decision on 13 July 2017 was to refuse the applicant a Protection Visa and by email of the same date the applicant was advised that if he wished to make an application for review of the Delegate’s Decision he must do so within 28 days: CB 48-64;
d)on 11 August 2017 the applicant lodged an application for review of the Delegate’s Decision with the Tribunal: CB 68-73;
e)on 14 August 2017 the applicant was sent an acknowledgment of his application for review by the Tribunal: CB 74;
f)on 16 August 2017 the applicant was invited to comment on the validity of his application by 4 September 2017: CB 80-82;
g)the applicant provided no response to the Tribunal on the validity of his application to the Tribunal: CB 89 at [4];
h)on 4 September 2017 the Tribunal affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 88-89; and
i)on 5 September 2017 the Tribunal wrote to the applicant advising him that it had decided it had no jurisdiction to determine his application to the Tribunal for review of the Delegate’s Decision: CB 90-91.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)was satisfied the applicant was notified by email of the Delegate’s Decision in accordance with the statutory requirements: CB 89 at [3];
b)stated that in accordance with reg.4.31(2) of the Migration Regulations 1994 (Cth) (“Migration Regulations”) an application for review of the Delegate’s Decision had to be made within 28 days commencing on the day the applicant was notified of the Delegate’s Decision, the day of notification being 13 July 2017: CB 89 at [2] (and see CB 48-64);
c)noted the applicant was invited to comment on the preliminary assessment of the application to the Tribunal not being lodged in the required time limit, and that he did not respond: CB 89 at [4];
d)found that the applicant had been notified of the Delegate’s Decision on 13 July 2017, as deemed by s.494C of the Migration Act, and was therefore required to lodge an application for review with the Tribunal by 9 August 2017, and having not done so until 11 August 2017 he had not complied with reg.4.31(2) of the Migration Regulations: CB 89 at [5]; and
e)concluded as a result of the application to the Tribunal being late that the Tribunal did not have jurisdiction to hear the matter: CB 89 at [6].
Judicial Review Application
The Judicial Review Application seeks review of the Tribunal Decision, the Immigration Assessment Authority and the individual Tribunal member who presided over the applicant’s case. The applicant, who is not an unauthorised maritime arrival, was not before the Immigration Assessment Authority at any time. Further to this, the Judicial Review Application contains no ground of review. The applicant’s affidavit filed the same day as the Judicial Review Application (11 September 2017) merely annexes the Tribunal Decision.
On 25 October 2017 a Registrar of the Court made orders (“Registrar’s Orders”) providing the applicant an opportunity to:
…file and serve any amended application upon which the applicant intends to rely, giving complete particulars of each ground of review.
…file and serve any affidavit containing any additional evidence upon which the applicant proposes to rely relevant only to the grounds of review
… file and serve written submissions and a list of authorities in support of the application for review
The applicant chose not to avail himself of the opportunity provided by the Registrar’s Orders, and when the matter proceeded to hearing on 22 December 2017 the Court had only the Judicial Review Application and the applicant’s affidavit before it by way of material submitted by the applicant in these proceedings.
At hearing the Court explained the nature of the issue before the Court, put shortly, that the applicant had to demonstrate jurisdictional error in Tribunal Decision that it had no jurisdiction to hear his application for review to the Tribunal by reason of his application being out of time, and, notwithstanding that the applicant had not filed any written submissions, the applicant was provided with an opportunity to make oral submissions in support of his Judicial Review Application. When invited to do so the applicant said he did not understand what he was required to do or say. When questioned if he did not understand due to there being issues with the interpretation, such as an incorrect dialect being spoken by the interpreter, the applicant stated he did not understand “some things” that were being said and sought to consult with a friend who had accompanied him to the hearing and was seated at the back of the Court room. The Court allowed the applicant to depart the Court room to discuss the matter with his friend.
Upon return the applicant made claims largely concerning his belief that the Tribunal had treated him unfairly, and attempted to make assertions in support of the merits of his Protection Visa claim. The Court again explained the applicant must establish or claim the Tribunal has committed jurisdictional error, and the applicant was unable to formulate any grounds or make any submissions relevant to that issue.
In his oral submissions the applicant said that:
a)the Tribunal did not allow him sufficient time (presumably to make the application for review);
b)he wanted to work here in Australia;
c)he wanted to stay here in Australia; and
d)because the Tribunal had dismissed his case the Court needed to review Tribunal Decision to ensure it complied with the law.
Nothing put by the applicant in his oral submissions went to the issue of whether Tribunal Decision was affected by jurisdictional error in relation to the time limitation issue.
In accordance with other orders in the Registrar’s Orders the Minister filed written submissions seeking the dismissal of the Judicial Review Application with costs. It is unnecessary to set the Minister’s submissions out in any detail, as the gist of those submissions is encapsulated within the Court’s consideration of the matter as set out in the remainder of these Reasons for Judgment.
Consideration
Jurisdictional error required
The Tribunal Decision may only be set aside by this Court upon judicial review if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24. Such an error will only constitute a jurisdictional error where the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ (“Yusuf”). In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”).
This Court does not have the jurisdiction to review the merits of the Tribunal Decision, or determine the applicant’s claim for a Protection Visa: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”); Attorney-General (NSW) v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1; CLR at 35-36 per Brennan J (“Quin”).
Lack of grounds of review
Rule 4.02 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) states that the content of an application must briefly state the orders sought and the basis on which the orders are sought. The applicant has specified he seeks an order that the Tribunal Decision be remitted for reconsideration, but has specified no grounds of review, and nothing said at hearing by way of oral submission constitutes a proper ground of judicial review. While the object of this Court is to operate informally and without undue formality: Federal Circuit Court of Australia Act 1999 (Cth) s.3(2), it is difficult for the Court to do so in circumstances where there is an absence of material or content on which to properly consider the Judicial Review Application. In C v Minister for Immigration and Multicultural Affairs [1999] FCA 1663 (“C”) the Federal Court was dealing with an application for judicial review with no grounds specified, but in which the applicant made submissions at hearing which specified, as the Federal Court interpreted the argument, a number of errors by the Refugee Review Tribunal which included a failure to have regard to evidence provided by a humanitarian non-government organisation, a failure to ask the “what if I am wrong” test in relation to the findings made, a failure to give reasons for decision, and giving a decision which was induced or affected by actual bias: C at [8] per Mansfield J. The Federal Court relied on a provision of the then Federal Court Rules 1976 (Cth), the same in substance as r.1.06 of the FCC Rules, to dispense with non-compliance with a requirement to set out grounds of judicial review as it felt it was in the interests of justice to do so: C at [6] per Mansfield J. In expressing that the Minister had suffered no prejudice the Federal Court stated at [7] per Mansfield J:
It would be unjust in those circumstances to deprive the applicant of the opportunity for judicial review, with the possible consequence (as he alleges) that he will be returned to Bangladesh where he will be persecuted, by reason of his failure fully to comply.
The circumstances referred to by the Federal Court in C at [7] per Mansfield J were that following the making of the submissions made by the applicant, the Federal Court adjourned the proceedings to allow the Minister to consider the applicant’s submissions and make any necessary further submissions, and the Minister did not make any submission that the application should not be entertained given those circumstances: C at [3] per Mansfield J.
In Gao v Federal Privacy Commissioner [2002] FCA 823; (2002) 76 ALD 447 at [20]-[21] per Goldberg J (“Gao”) the Federal Court found it inappropriate to extend the time in which to bring an application for review against the Federal Privacy Commissioner under the Administrative Decisions Judicial Review Act 1975 (Cth) as on the material before the Federal Court no grounds of review were disclosed, and nor did the application for review or applicant’s affidavit in Gao particularise facts or other matters or circumstances capable of constituting relevant grounds of review: Gao at [20] per Goldberg J.
In judicial review proceedings under the Migration Act the failure to particularise grounds of review is sufficient to warrant an application for judicial review being dismissed by this Court: WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J (and cases there cited); AQN15 v Minister for Immigration & Border Protection [2016] FCA 571 at [5] per Logan J (and cases there cited); BCJ16 v Minister for Immigration & Anor [2017] FCCA 2943 at [13] per Judge Lucev.
In circumstances where:
a)the Judicial Review Application contained no grounds of review;
b)the applicant was given the opportunity by reason of the Registrar’s Orders to include grounds of review in an amended Judicial Review Application;
c)the applicant failed to take advantage of the opportunity provided by the Registrar’s Orders to file an amended Judicial Review Application with particularised grounds of review; and
d)when given the opportunity at hearing to make submissions, none of the submissions made could be said to constitute a proper ground of judicial review (as opposed to merits review),
the failure to provide grounds of review of itself is sufficient, in the circumstances, to warrant dismissal of the Judicial Review Application.
Dismissal for lodging an application to the Tribunal for review out of time
For the Tribunal to be obliged to undertake a review of the Delegate’s Decision: Migration Act s.414, it had to receive a valid application as provided under s.412 of the Migration Act:
(1) An application for review of a Part 7-reviewable decision must:
(a) …
(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
(c) …
(4) Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of Part 7-reviewable decisions (which may be decisions that relate to non-citizens in a specified place).
As stated in s.412(4) of the Migration Act, the Migration Regulations may specify different time periods, and reg.4.31(2) of the Migration Regulations provides as follows:
(2) 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.
Note: If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.
Regulation 2.16(3) of the Migration Regulations states that the Delegate’s Decision must be communicated to the applicant by one of the methods prescribed in s.494B of the Migration Act, and also contains the same “Note” as reg.4.31 of the Migration Regulations. In relation to the Minister’s processes for advising the applicant of the Delegate’s Decision to refuse the applicant a Protection Visa, the Court accepts that valid notice of the Delegate’s Decision was given to the applicant as:
a)the applicant provided an email address and expressly consented to receiving notification via electronic means regarding the Protection Visa application: CB 21;
b)the Delegate’s Decision was sent by email dated 13 July 2017, addressed to the applicant personally, and sent to the email address repeated twice by the applicant in his Protection Visa application (which is also the same email address subsequently used on his Tribunal review application and the Judicial Review Application in this Court): CB 62 and 69;
c)transmission by email is a method prescribed by s.494B(5)(b) and (d) of the Migration Act, and the applicant was therefore taken to have received the email with the Delegate’s Decision annexed at the end of the day on 13 July 2017 as provided by s.494C(5) of the Migration Act;
d)despite any claim to the contrary that the applicant did not receive the email notification, he was deemed to have received it as provided by s.494C(5) of the Migration Act, which does not create a rebuttable presumption of fact, but is rather a deeming provision strictly applied: NACG v Minister for Immigration & Multicultural Affairs [2002] FCAFC 173 ( “NACG”) at [8] per Stone J; Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 377; (2000) 98 FCR 77; (2000) 171 ALR 53 at [17] per O’Connor and Mansfield JJ; Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 1 at [13] per Spender, Kiefel and Dowsett JJ;
e)the Minister therefore satisfied the requirements of reg.2.16(3) of the Migration Regulations in communicating the Delegate’s Decision to the applicant; and
f)therefore, the prescribed 28 day time period for the applicant to lodge an application for review with the Tribunal began at the end of the day on 13 July 2017 and expired on 9 August 2017.
The period in which an applicant has to lodge an application with the Tribunal for review of the Delegate’s Decision has been described as an “envelope of time”: Hasan v Minister for Immigration & Citizenship (2010) 184 FCR 523; [2010] FCA 375 at [29] per North J (“Hasan”). In Hasan it was held the Migration Review Tribunal was correct in deciding it did not have jurisdiction to hear an application lodged outside of this “envelope of time”, and thus the Tribunal could not be compelled to do so by a court exercising powers of judicial review: Hasan at [58] per North J. The Tribunal does not have the power to extend the prescribed time periods in s.412(1)(b) of the Migration Act or reg.4.31 of the Migration Regulations: CQP15 v Minister for Immigration & Border Protection [2017] FCA 854 at [43] per Kenny J (“CQP15”); NACG at [7] per Stone J; Minister for Immigration & Border Protection v ASE15 [2016] FCAFC 37; (2016) 237 FCR 460 at [48] per North, Barker and Mortimer JJ.
In NACG at [8] per Stone J the Federal Court said:
It is very unfortunate that in this case it would appear that, entirely through no fault of the appellants, their applications were not received in time. The inexorable and inevitable result is that the Tribunal had no jurisdiction to review the decisions.
Thus, even where there is no fault on the part of the applicant the time limit for an application for review to the Tribunal is strictly applied: see too CQP15 at [44] per Kenny J.
In the present case it does appear the failure to comply with the time limit was, in any event, the fault of the applicant, and the Court notes that in the application for review by the Tribunal of the Delegate’s Decision he stated the date of the decision was 13 July 2017: CB 71, and did so in response to a request that the date be given so that the Tribunal “can check if your application has been lodged within the time limit”: CB 71. Whether notification of the Delegate’s Decision actually reached the applicant on 13 July 2017 is irrelevant, as the applicant is taken to have received the documents at the time specified by the Migration Act and Migration Regulations: Migration Act, s.494C(7); SZVRO v Minister for Immigration & Border Protection [2017] FCA 421 at [62]-[68] per Beach J. Further to this, the applicant was invited to make submissions to the Tribunal as to whether there was any reason to consider the application to the Tribunal for review was lodged within the 28 day time period. The Tribunal was at liberty to assume the applicant had nothing to say on that issue when the applicant failed to make any submission to the Tribunal.
Though the applicant only lodged his application for review of the Delegate’s Decision two days out of the prescribed time limit, the Tribunal was correct to conclude it did not have jurisdiction to consider that application, and therefore no jurisdictional error is established in the Tribunal Decision.
Oral Submissions at hearing
At hearing the applicant said he did not understand what the interpreter was saying when translating the Court’s invitation to make submissions in support of his Judicial Review Application, and in particular claims of jurisdictional error. The interpreter assisted the Court in stating the difficulty the applicant had understanding was due to the lack of understanding of the legal concepts and what was required of him. It should be noted the applicant requested a Mandarin interpreter, and a National Accreditation Authority for Translators and Interpreters (“NAATI”) verified Mandarin interpreter was provided by the Court.
In circumstances where an applicant is self-represented the Court must endeavour to assist the unrepresented litigant in understanding the proceedings and also remain astute and alert to the possibility of a legal error in the Tribunal Decision while remaining independent and impartial: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J. In Commissioner of Taxation v Futuris Corporation Limited [2008] HCA 32; (2008) 237 CLR 146; (2008) 82 ALJR 1177; (2008) 69 ATR 41; (2008) 247 ALR 605 at [129] per Kirby J it was said that jurisdictional error “is nearly impossible to explain to lay people”. The Court finds the applicant’s failure to understand “some things” the interpreter was saying was not as a result of an inadequate standard of interpretation, but rather it was the complexity of the legal proceedings the applicant could not comprehend. Upon the Court seeking to further explain what was required to the applicant to assist his understanding, and granting him time to consult his friend, the applicant returned with a number of brief assertions essentially repeating the claims in his Protection Visa application, and expressing his desire to stay and work in Australia. It is well established for the Court to do such would entail it undertaking impermissible merits review contrary to the principles in Wu Shan Liang and Quin. Thus, what is both expressed and implied in the applicant’s oral submissions: see [11] above, essentially that he seeks that this Court undertake merits review of the Tribunal Decision, is a task which is not within this Court’s power on an application for judicial review under the Migration Act.
The oral submissions made by the applicant at hearing disclosed no jurisdictional error in Tribunal Decision.
Conclusion and Orders
The Court has concluded that Tribunal Decision is not affected by any jurisdictional error. It follows that the Judicial Review Application must be dismissed.
For the above reasons the Court made orders on 22 December 2017 dismissing the Judicial Review Application and awarding costs to the Minister.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 10 January 2018
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