Ekj17 v Minister for Immigration

[2018] FCCA 888

FEDERAL CIRCUIT COURT OF AUSTRALIA

EKJ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 888

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – Tribunal finding that it lacked jurisdiction due to late lodgement of the review application – refusal of an extension of time for show cause application.

Legislation:

Migration Act 1958 (Cth), ss.412, 477, 494B, 494C

Federal Circuit Court Rules 2001 (Cth)
Migration Regulations 1994 (Cth)

Cases cited:

Murphy v Minister for Immigration (2004) 135 FCR 550
Xie v Minister for Immigration [2005] FCAFC 172

Applicant: EKJ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3034 of 2017

Judgment of: Judge Driver

Hearing date: 12 April 2018

Delivered at: Sydney

Delivered on: 12 April 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr C O'Sullivan of Australian Government Solicitor

INTERLOCUTORY ORDERS

1. Pursuant to s.477 of the Migration Act 1958 (Cth), the application for an extension of time is refused.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with 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 3034 of 2017

EKJ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Introduction and background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 10 August 2017.  The Tribunal found that it did not have jurisdiction in the matter before it.

2. Background facts are conveniently set out in the Minister’s outline of legal submissions, filed on 5 April 2018. 

Facts

1. The applicant is a citizen of China, and arrived in Australia on a tourist visa on 7 July 2015.[1]

   [1] Court Book (CB) 90

2. On 16 March 2016 the applicant lodged a protection visa application.[2] By that application he stated that he had not received assistance in completing the form.[3]  He requested that correspondence relating to the applicant be sent to himself.[4]  He listed his “current residential address” as:[5]

   [2] CB 1 to 43

   [3] CB 10

   [4] CB 10

   [5] CB 17; see also CB 27, 36

   55 George Street

   South Hurstville

   NSW      Postcode: 2221

3. He listed his postal address as “same as residential”.[6]

   [6] CB 17

4. On 19 May 2016 the Minister’s Department wrote to the applicant at his 55 George Street, Hurstville address, stating that his visa application was invalid and advising that he may want to make another visa application.[7]

   [7] CB 44 to 46

5. The applicant lodged a second application for the visa dated 29 June 2016.  The second application contained identical address details.[8]

   [8] CB 63, 73 and 82

6. A delegate of the Minister (delegate) refused the visa on 7 February 2017.  This decision was sent under the cover of a notification letter dated 7 February 2017, which was sent by registered post to the applicant’s address at “55 George Street, South Hurstville  NSW  2221”.[9]

   [9] CB 86

7. On 29 June 2017, the applicant applied to the Tribunal for review.[10]  On that application he listed his contact details as including an email address “[email protected]”.  On 11 July 2017, the Tribunal invited the applicant to comment on the validity of his application by email sent to his listed email address.[11]  The applicant responded to the invitation by email on 15 July 2017, stating that:

   Recently I can’t find my visa, so I just applied for review at AAT. I didn’t receive anything from DIBP. I didn’t move or change my contact.

   [10] CB 99 to 100

   [11] CB 111 to 112

Tribunal's findings and reasons

1. On 10 August 2017 the Tribunal made its decision, finding that it did not have jurisdiction to review the delegate’s decision.[12]

   [12] CB 119 to 120

2. The Tribunal found that the delegate’s decision had been sent by post to the applicant’s address provided in his protection visa application on 7 February 2017.[13] The Tribunal considered Australia Post records which indicated that the letter had entered its system on 9 February 2017 and was returned to sender on 27 February 2017. The Tribunal concluded that the applicant was taken to have been notified of the delegate’s decision on 16 February 2017 pursuant to s.494C of the Migration Act 1958 (Cth) (Migration Act).[14] Having regard to s.412(1)(b) of the Migration Act and rule 4.31(2) of the Migration Regulations 1994 (Regulations), the Tribunal found that the 28 day period in which to apply for review ended on 15 March 2017.[15]  As the application was made on 29 June 2017, the Tribunal concluded that it did not have jurisdiction.[16]

   [13] CB 120 at [6]

   [14] CB 120 at [8]

   [15] CB 120 at [2] and [8]

   [16] CB 120 at [8]

3. A copy of that decision was sent to the applicant at his nominated email address “[email protected]”.[17]

   [17] CB 115

Application to the Federal Circuit Court

1. The application to this Court was lodged on 28 September 2017, two weeks outside the time limit provided in s.477(1) of the Migration Act. The grounds for an extension of time are as follows:

   1.My former lawyer did not inform me of AAT hearing, therefore I did not attend the hearing

   2.Neither did my former lawyer inform me of the AAT decision. I consequently missed the time frame for appeal to Federal Circuit Court.

2. The substantive grounds of the application are as follows:

   1.The Tribunal made jurisdictional error in making decision to refuse to grant protection visa to me

   2.The Tribunal failed to take into consideration the material facts what I present and life risk if I was forced to return to China

The present proceedings

1. As noted above at [13] these proceedings began with a show cause application, lodged on 28 September 2017. The applicant continues to rely upon that application. The application was not lodged within the period prescribed under s.477(1) of the Migration Act. The applicant seeks an extension of time, pursuant to s.477(2).

2. The application is supported by a short affidavit filed with it, which I received. 

3. I also have before me as evidence the book of relevant documents, filed on 15 December 2017, and an affidavit by Jonathan Charles Hutton, to which is annexed a postal log detailing the dispatch of correspondence to the applicant at his address in South Hurstville on 17 February 2017.

4. Only the Minister prepared written submissions in accordance with procedural orders made by a Registrar.

5. In relation to the extension of time application the Minister submits that there has not been a reasonable and adequate explanation for the delay for the following reasons:

   a)first, the applicant claims that his delay was caused by his lawyer, but there is no evidence of any involvement of a lawyer or agent in the application process.  The applicant clearly states that he was not assisted in respect of his visa application[18] and he attests to the truthfulness of those statements.[19]  He also made no reference to the involvement of a lawyer, agent or representative in his application to the Tribunal;[20] 

   b)secondly, all correspondence sent by the Minister’s Department or by the Tribunal to the applicant was sent directly to him, either at his email address, or to his postal address, which was the same as his residential address;

   c)thirdly, the invitation to comment on the validity of the review application was sent directly to the applicant at the email address provided to the Tribunal, and the applicant responded directly to that invitation, with no apparent assistance from a legal representative.  The Tribunal decision was sent to the applicant by email at the same email address to which he had previously responded; and

   d)fourthly, to the extent that the applicant’s excuse is that he did not attend a hearing, this is not relevant.  He was not invited to a hearing before the Tribunal (and nor did he need to be).

   [18] CB 10 and 56

   [19] CB 11 and 57

   [20] CB 99 to 100

6. I invited oral submissions from the applicant this morning.  He initially declined to make any submissions, but did respond to questions and propositions that I put to him.  I explored with the applicant the grounds for an extension of time he set out in his application.  In essence, the applicant blames his delay in coming to Court on his former lawyer.  As I explained to the applicant, a difficulty is that the documents before me give no indication that the applicant ever engaged the services of a lawyer.

7. The applicant explained that he does not know whether the person he consulted was a lawyer or not, but he had an office in Campsie, with certificates on the wall, and the applicant consulted him a professional capacity.  The applicant now has suspicions concerning this person, because he insisted that the applicant use his personal email address for the purposes of corresponding with the Tribunal.  The applicant told me that the person who assisted him has the name of Li.

8. While I am prepared to accept that the applicant was assisted before the Tribunal by a person who appeared to operate in a professional capacity, but his assistance was not disclosed to the Tribunal, the applicant accepts that it was his email address which he provided to the Tribunal for the purposes of receiving correspondence, and he did not dispute my proposition that it was his responsibility to monitor that email address.

9. Accordingly, while the delay in this case is relatively short, I do not accept that the applicant has advanced a satisfactory explanation for his delay in coming to Court.

10. Even if the applicant had advanced a reasonable explanation for his delay, there is, in my view, insufficient merit in the judicial review application to justify the granting of an extension of time.

11. The Tribunal found that it lacked jurisdiction because the applicant’s review application to it was not lodged within time.  The Tribunal’s decision was based in part on an analysis of postal logs evidencing the dispatch of the decision of the delegate to the applicant at his nominated postal address.

12. There is nothing to indicate that the Tribunal was wrong in that analysis.  Indeed, that analysis is supported by the affidavit of Mr Hutton and the postal log annexed to it.  It seems to me that the Tribunal correctly found that the applicant was properly notified of the delegate’s decision, and that he did not apply to the Tribunal for review of that decision within the prescribed period, running from the deemed date of receipt of that decision.

13. I otherwise agree with the Minister’s submissions concerning the grounds of review in the judicial review application.

Legislation

1. Section 412(1)(b) of the Migration Act provides in relevant part:

   412 Application for review of Part 7-reviewable decisions

   An application for review of a Part 7-reviewable decision must:

   …

   (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;

   …

2. The prescribed period is found in regulation 4.31(2) of the Regulations which is 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.

3. The day on which an applicant is deemed to be notified of a decision is identified by reference to ss.494B and 494C of the Migration Act.

4. Section 494B of the Migration Act identifies the means by which the Minister may give documents to a person. Section 494B(4) provides as follows:

   Dispatch by prepaid post or by other prepaid means

   (4)Another method consists of the Minister dating the document, and then dispatching it:

   (a)     within 3 working days (in the place of dispatch) of the date of the document; and

   (b)     by prepaid post or by other prepaid means; and

   (c) to:

   (i)     the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or

   (ii)     the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; or

   (iii)   if the recipient is a minor—the last address for a carer of the minor that is known by the Minister. 

5. Section 494C provides for when a document will be taken to be received:

   494C When a person is taken to have received a document from the Minister

   Dispatch by prepaid post or by other prepaid means

   (4)If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:

   (a)if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or

   …

6. The grounds of review in the substantive application do not identity any legal error in the decision of the Tribunal:

   a)the applicant’s first ground proceeds on an incorrect view of the Tribunal’s decision.  The Tribunal did not refuse to grant the applicant a protection visa, but rather found that it did not have jurisdiction to review the decision of the delegate.  As such, the first ground does not demonstrate any jurisdictional error on behalf of the Tribunal; and

   b)the applicant’s second ground contends that the Tribunal failed to take into consideration the applicant’s circumstances if he were to return to China.  The Tribunal did not consider the applicant’s claims as it was not obliged to consider the merits of the application for review in circumstances where it found it had no jurisdiction.

7. No jurisdictional error was made by the Tribunal. The Tribunal correctly applied the provisions of the Migration Act and Regulations. It was of no consequence that the letter was dispatched and returned to the Minister’s Department as s.494C of the Migration Act is a deeming provision and does not create a rebuttable presumption.[21]

   [21]    See e.g. Murphy v Minister for Immigration (2004) 135 FCR 550 at [69] (Spender J), cited in Xie v Minister for Immigration [2005] FCAFC 172 at [14] (Spender, Kiefel and Dowsett JJ)

Conclusion

1. I conclude that the interests of the administration of justice do not call for the granting of an extension of time in this case. I will order that pursuant to s.477 of the Migration Act, the application for an extension of time be refused.

2. In consequence of the refusal of the extension of time, the Minister seeks an order for costs in accordance with the Court scale, in the sum of $3,667.  The applicant indicated his understanding of the position and did not make any submissions in relation to costs.

3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:       13 April 2018