Eua17 v Minister for Immigration

[2018] FCCA 623

FEDERAL CIRCUIT COURT OF AUSTRALIA

EUA17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 623

Catchwords:
MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – citizen of Malaysia – where Tribunal determined it had no jurisdiction – late application for review to the Tribunal – whether jurisdictional error.

Legislation:

Acts Interpretation Act 1901 (Cth), s.36(2)

Migration Act 1958 (Cth), ss.66, 412, 414, 494B, 494C

Migration Regulations 1994 (Cth), regs.2.16, 4.31

Cases cited:

AKU15 v Minister for Immigration & Border Protection [2017] FCA 165

AYE16 v Minister for Immigration & Border Protection [2018] FCA 108
EBE17 v Minister for Immigration & Border Protection [2018] FCCA 45
Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1
NACG v Minister for Immigration & Multicultural Affairs [2002] FCAFC 173
SZULH v Minister for Immigration & Border Protection [2015] FCA 835
WZAVW v Minister for Immigration & Border Protection [2016] FCA 760

Applicant: EUA17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 572 of 2017

Judgment of: Judge Antoni Lucev

Hearing date: 9 March 2018

Date of Last Submission: 9 March 2018

Delivered at: Perth

Delivered on: 14 March 2018

REPRESENTATION

Applicant: In person (with the assistance of an interpreter)

Counsel for the First Respondent: Mr A Burgess

For the Second Respondent: Submitting appearance save as to costs

Solicitors for the Respondents: Sparke Helmore

ORDERS (as made on 9 March 2018)

1. The application be dismissed.

2. Written reasons for judgment to be published from Chambers at a later date.

3. The applicant pay the first respondent’s costs in the sum of $5,500 by 9 April 2018.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 572 of 2017

EUA17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By way of an application for judicial review (“Judicial Review Application”) filed on 26 October 2017 the applicant seeks review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively), pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”). The Tribunal Decision dated 21 September 2017 affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”). The Delegate’s Decision was to refuse the grant of a Class XA protection visa (“Protection Visa”) to the applicant. The Tribunal Decision appears in the Court Book (“CB”) at CB 179-206.

Background

1. The factual and procedural background to the making of the Judicial Review Application is as follows:

   a)the applicant is a citizen of Malaysia who arrived in Australia on 21 September 2016 as the holder of an electronic travel authority (Class UD) (subclass 601) visa. On 7 March 2017, she made an application to the Department for the Protection Visa: CB 1-36;

   b)in her application for the Protection Visa, the applicant claimed that she would face financial difficulties because of the current economy and "political problem" if she returned to Malaysia: CB 32-33;

   c)on 21 August 2017, the Delegate refused to grant the applicant the Protection Visa: CB 42-54;

   d)on 21 August 2017 the Delegate’s Decision was sent to the applicant by email to her nominated email address: CB 40-41, CB 42-54 and CB 17 (at items 40 and 41);

   e)on 25 September 2017, the applicant sought merits review of the Delegate’s Decision in the Tribunal: CB 55-56;

   f)on 27 September 2017, the Tribunal invited the applicant to comment on the validity of the application for review: CB 58-59. In that correspondence, the Tribunal stated that it appeared that the application was not valid because it was not lodged within the relevant time period. No response was received from the applicant;

   g)on 19 October 2017, the Tribunal determined that it did not have jurisdiction to review the matter: CB 62-63;

   h)the Tribunal found that, as the applicant was not in immigration detention on the day she was notified of the decision, any application for review had to be made within 28 days in accordance with reg.4.31(2) of the Migration Regulations 1994 (Cth) (“Migration Regulations”): CB 63 at [2]. The Tribunal found that the applicant was notified of the Delegate’s Decision by letter dated 21 August 2017 despatched by email, and the Tribunal was satisfied that the Delegate’s Decision was notified in accordance with the statutory requirements: CB 63 at [3];

   i)the Tribunal noted that it wrote to the applicant on 27 September 2017 indicating its preliminary view that the application was not made within the relevant time limit because the Delegate’s Decision was emailed on 21 August 2017 and the last day for lodging the application to the Tribunal was 18 September 2017: CB 63 at [4]. As the application was not received until 25 September 2017, it noted that the application appeared to be out of time: CB 63 at [8]; and

   j)the Tribunal noted that it invited the applicant to comment and do so in writing by 11 October 2017: CB 63 at [5]. However, at the time of the Tribunal Decision, no response had been received from the applicant: CB 63 at [6].

The Judicial Review Application

1. The grounds of the Judicial Review Application are as follows (copied verbatim):

   1.AAT was very biased and didn't accept my claims explaining and my email for the delay of applying my application lodge. AAT didn't believe that I did not know off the refusal.

   2. AAT tried to discredit me with my failure to make the lodge within 28 days.

   3. As above applicant case.

   4. Applicant have not received any notification letter of refusal or cancellation visa by The Department causes applicant had delay lodging the application.

2. By reason of orders of a Registrar of this Court made on 8 December 2017 the applicant was entitled to file an amended Judicial Review Application, and any affidavit containing additional evidence relevant to the grounds of review, and written submissions. The applicant did not file any such documents.

Consideration

Did the Tribunal correctly determine it had no jurisdiction?

1. The primary issue in this matter is whether the Tribunal was correct in determining it had no jurisdiction to review the Delegate’s Decision, because the applicant filed her review application out of time. If the Tribunal is correct then the judicial review application must be dismissed. The applicant had to make a valid application to enliven the Tribunal’s jurisdiction: Migration Act, s.414. To be a valid application it must have been given to the Tribunal within the period prescribed, being a period not ending later than 28 days after notification of the Delegate’s Decision: Migration Act, s.412(1)(b). Section 412(4) of the Migration Act permits the enactment of regulations prescribing different periods for different classes of visa.

2. The applicant was not in immigration detention when she was notified of the Delegate’s Decision on 21 August 2017: CB 42. Therefore, she had 28 days to lodge her review application, commencing on the day she was notified of the decision: Migration Regulations, reg.4.31(2).

3. The Minister was required to notify the applicant of the Delegate’s Decision: Migration Act, s.66, by one of the methods specified in s.494B of the Migration Act: Migration Regulations, reg.2.16(3); Migration Act, s.494B(1). An email sent to the last email address provided for the purposes of receiving documents is a specified method of notification: Migration Act, s.494B(5)(d).

4. In this case the Minister properly notified the applicant of the Delegate’s Decision at her nominated email address: see [2(d)] above. The applicant nominated an email address for the purposes of communicating with the Department and expressly agreed to that communication method. The Delegate’s Decision was sent to the applicant’s nominated email address on 21 August 2017: CB 40-49. The same email address was supplied by the applicant to the Tribunal in the application to the Tribunal. The Court notes that the same email address has also been provided to the Court in the Originating Application: CB 56.

5. The applicant’s assertion that she did not receive notification of the Delegate’s Decision must fail because s.494C(5) of the Migration Act does not create a rebuttable presumption that notification was received but rather strictly deems that notification has been received: NACG v Minister for Immigration & Multicultural Affairs [2002] FCAFC 173 at [8] per Stone J. Therefore, because the Minister has complied with s.494C(5) of the Migration Act, the applicant, whether justifiably or not, cannot claim that because she did not actually receive the notification the Tribunal was wrong to find it had no jurisdiction: EBE17 v Minister for Immigration & Border Protection [2018] FCCA 45 (“EBE17”) at [22] per Judge Lucev.

6. The 28 day period within which to apply to the Tribunal for merits review of the Delegate’s Decision ended on 17 September 2017. That day was a Sunday: therefore pursuant to s.36(2) of the Acts Interpretation Act 1901 (Cth) the last day for making the application to the Tribunal was 18 September 2017: AKU15 v Minister for Immigration & Border Protection [2017] FCA 165 at [31] per Katzmann J. The Tribunal correctly identified 18 September 2017 as the last day for making the application: CB 63 at [8].

7. The review application was lodged on 25 September 2017 after the last day expired and accordingly it was not a valid application. The Tribunal has no power to extend the time within which to make a review application and this Court cannot compel the Tribunal to undertake a task it has no jurisdiction to do. The applicant did not file the review application in time. It is immaterial whether that was not the applicant’s fault: the Tribunal cannot review the Delegate’s Decision: EBE17 at [23]-[24] per Judge Lucev.

8. The Tribunal was correct in determining it did not have jurisdiction: SZULH v Minister for Immigration & Border Protection [2015] FCA 835 at [17] per Robertson J. The Judicial Review Application should be dismissed on that basis.

Grounds of review

1. Ground 1 alleges bias on the part of the Tribunal, but in the absence of firm and clear proof: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 at [69] per Gleeson CJ and Gummow J, and in the absence of clear particularisation: AYE16 v Minister for Immigration & Border Protection [2018] FCA 108 at [37], [58]-[61] and [65] per Barker J; WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J, ground 1 cannot be made out.

2. Ground 1 (excluding the alleging of bias) and grounds 2 and 4, appear to contend that the cause of the applicant’s delay in lodging her application for review was that she was not provided with notification of the refusal of her Protection Visa (that is, the Delegate’s Decision) by the Department. The applicant asserts that the Tribunal did not believe her. As noted above, however, the applicant did not respond to the Tribunal’s invitation to comment on the question of the validity of the application. In any event, the assertion that the applicant did not receive notification of the Delegate’s Decision must fail for the reasons at [5]-[12] above.

3. Ground 3 is unintelligible and not a proper ground of judicial review.

Conclusion and orders

1. In all of the above circumstances, the Judicial Review Application does not establish jurisdictional error in the Tribunal Decision and should be dismissed.

2. It was for the above reasons that the Court concluded that the Tribunal Decision was not affected by jurisdictional error, and made orders as follows at the hearing on 9 March 2018:

   1.   The application be dismissed.

   2.   Written reasons for judgment to be published from Chambers at a later date.

   3.   The applicant pay the first respondent’s costs in the sum of $5,500 by 9 April 2018.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate: 

Date:  14 March 2018