EYX17 v Minister for Immigration
[2019] FCCA 2748
•26 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EYX17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2748 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa – extension of time application – application to this court almost one year late – explanation for delay may be adequate – whether grounds of review arguable – Tribunal determining it had no jurisdiction in circumstances where the application was lodged 15 minutes and 27 seconds late. |
| Legislation: Acts Interpretation Act 1901, s.36(1) Migration Act 1958, ss.66, 412, 477(1), 477(2); 494C Migration Regulations 1994, reg.4.31(2) |
| Cases cited: Beni v Minister For Immigration and Border Protection [2018] FCAFC 228 Brown v Minister for Home Affairs [2018] FCA 1643 Brown v Minister for Home Affairs (No.2) [2018] FCA 1787 BUY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 1787 DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 DJD17 v Minister for Immigration and Border Protection [2019] FCCA 2747 FJR18 v Minister for Home Affairs [2019] FCCA 2274 FWQ18 v Minister for Immigration and Border Protection [2019] FCCA 2308 |
| Applicant: | EYX17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 2431 of 2017 |
| Judgment of: | Judge Riley |
| Hearing date: | 12 November 2018 |
| Date of last written submission: | 11 June 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 26 September 2019 |
REPRESENTATION
| Advocate for the applicant: | In person |
| Solicitors for the applicant: | None |
| Advocate for the first respondent: | Lachlan Bongers |
| Counsel for the second respondent: | No appearance |
| Solicitors for the respondents: | Clayton Utz |
ORDERS
The application for an extension of time filed on 13 November 2017 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2431 of 2017
| EYX17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for an extension of time in which to file an application seeking review of a decision made by the Administrative Appeals Tribunal. In that decision, the Tribunal found that it had no jurisdiction to review a decision made by a delegate of the Minister not to grant the applicant a protection visa.
The reason that the Tribunal considered that it had no jurisdiction was that the application to the Tribunal was filed on 23 August 2016 and the Tribunal calculated that the 28 day time limit for filing an application expired on 22 August 2016. That is, the application to the Tribunal was one day late, on the Tribunal’s calculation. More precisely, the application was 15 minutes and 27 seconds late.
The applicant needed an extension of time to file an application to this court because the application was filed almost one year after the expiration of the 35 day time limit.
The applicant was not represented during the proceeding in this court or before the Tribunal.
The matter was listed for a show cause hearing on 12 November 2018. During that hearing, the court raised with the parties the decision of Greenwood J in Brown v Minister for Home Affairs [2018] FCA 1643. At that point, Greenwood J had given the parties an opportunity to further submissions and his Honour’s final decision was expected imminently. In those circumstances, the Minister proposed and the court made orders for the parties to file and serve written submissions following the final decision in Brown. The parties agreed that, following the receipt of those submissions, this court could proceed to make its decision without a further oral hearing. The final decision in Brown was handed down on 19 November 2018 and reported as Brown v Minister for Home Affairs (No.2) [2018] FCA 1787.
Consent orders were made in chambers on 3 December 2018, which provided for the parties to have leave to file further written submissions following the determination of the appeal to the Full Court of the Federal Court in Beni v Minister for Immigration and Border Protection, and/or any application for special leave to appeal to the High Court and any High Court appeal in Brown. There was no application for special leave in Brown.
The Full Court of the Federal Court handed down its judgment in Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 on 14 December 2018. Beni said that Brown should not be followed. The Minister emailed chambers on 11 April 2019 to the effect that it would be appropriate for orders to be made for the parties to file submissions following the determination of any special leave application or appeal to the High Court in Beni. The applicant did not indicate her position on that issue, but judgment was reserved in any event. The visa applicant did apply for special leave in Beni. However, that application was refused on 17 April 2019. After that refusal, the parties did not seek leave to file any further submissions on Brown or Beni.
On 18 April 2019, the Full Court of the Federal Court handed down its decision in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64. Consent orders were made in chambers on 28 May 2019 for the parties to file further written submissions on the application of DFQ17 to the present matter. The Minister filed written submissions on 11 June 2019. The applicant did not file any written submissions on the application of DFQ17.
The applicant’s claims
The applicant is a citizen of Malaysia. The delegate summarised her claims as follows:
·The applicant claims she spoke with the political party of the government about its problems and since then she received threats from politicians.
·The applicant claims if she returns to Malaysia she will be imprisoned or shot dead without it being reported in the media.
·The applicant claims she cannot get help from the government in Malaysia and she unable to relocate.
The extension of time application
The Tribunal’s decision was made on 29 September 2016. Under s.477(1) of the Migration Act 1958 (“the Act”), any application to this court is to be filed within 35 days of the date of the Tribunal’s decision. That meant that the application had to be filed by 17 November 2016. The application to this court was not filed until 13 November 2017. Consequently, the application was almost one year late.
Under s.477(2) of the Act, the court has power to extend the time for the filing of an application if the court is satisfied that it is necessary in the interests of the administration of justice to do so.
In considering whether to grant an extension of time, the court must consider:
a)the length of the delay;
b)the reasons for the delay;
c)whether there is any prejudice to the Minister if time is extended; and
d)whether the substantive application is sufficiently arguable.
a. The length of the delay
As stated, the delay was almost one year.
b. The explanation for the delay
The applicant said in her grounds of application for an extension of time filed on 13 November 2017:
1.I am giving affidavit in support of my claim for an extension of time why I am bringing the application to court for late, I am stating that I don't have any one to give the knowledge the tribunal matter and also court matters. Since the tribunal decision, I have consulted “at least 30 people”, spent lot of time. But no one was giving support to me, especially in Mooroopna, remote town, no one is there to help me in these matters.
2.Tribunal did not see my relationship as I am in relationship with Australian partner for year and giving him moral support it is to be considered as a ‘public interest’, partner works and have depression issues. I am helping him for long time giving him moral support as he is healthy and working as truck driver fulltime with my efforts & support. That is the reason I request the court to grant the extension of time if possible.
3.In my case I found it difficult to see how to apply for the judicial review also I did not have enough money to hire barristers, with lack knowledge on this matter, my application has been delayed 13 months before seeking extension of time at Federal circuit court of Australia could ever be granted an extension of time but my situation is totally different. I request the judge or court to accept my situation is as an exceptional case, as my husband has been passed away and living with Australian partner. As a woman I am learning the English and trying to understand.
4.I hope Court will understand and consider my inability to obtain favourable legal advice because of financial hardship and other hardships behind my delay so that this reason can be considered as a ground for extending the time for seeking Judicial Review at the Federal Circuit court of Australia. Also I have arguable claims on protection under the complimentary protection obligations in Australia save myself. There is a chance of may turn out a favourable decision to me in the future.
(errors in original)
The applicant’s affidavit in support of her application for an extension of time said:
Requesting the Federal Circuit Court of Australia registrar to accept my application for judicial review:
1.I am applying Judicial Review at Federal circuit court under the s.476 of the Migration Act 1958 related to federal circuit court regulations, requesting the extension of time under the s.477 of the Migration Act 1958.
2.My fear is really well have a well-founded fear persecution in Malaysia, also my hardships mentioned in this application are true and genuine.
3.Due to exceptional circumstances I have entered in to Australia to save myself and I did not have any right to enter in any other country legally except Malaysia also I did not have any other cause behind lodging the review application with lot of delay.
4.I am submitting the Decision record of Immigration, tribunal application and Tribunal decision.
5.My Australian partner is helping me in this matter he is trying to hire a Barrister also we trying to lodge the spouse visa onshore once we have enough money saved.
6.I beg the judge and registrar to help in this matter.
7.My purpose here in Australia is “saving my life”. I hope court will understand my plea.
(errors in original)
Essentially, the applicant seems to be saying that she did not lodge her application to this court within time because of financial hardship, and because of the difficulty of finding legal assistance in her home town of Mooroopna. It may be accepted that those reasons, albeit that they were not stated in an affidavit, explain the lengthy delay in this matter.
c. Whether there is any prejudice to the Minister
The Minister did not point to any prejudice to him if an extension of time is granted.
d. Whether the substantive application is sufficiently arguable
For the reasons which follow, I consider that none of the applicant’s grounds of review as stated in her application to this court or as expressed orally at the hearing in this court has a reasonable prospect of success. In addition, I do not consider that any argument based on DFQ17 could succeed in this case.
Ground 1
The first ground of review in the application filed on 13 November 2017 (“the application”) is:
On 23 August 2016 I have applied to the Tribunal for review of the delegate's decision. Copy of the “Protection Visa Assessment” attached with Review application. I wanted to give written submission but I have missed the opportunity because of my application has been lodged bit late by unknown agent in QLD.
(errors in original)
This is not a ground of review as such. It does not raise an arguable point. Even if there were some travesty perpetrated by an agent, it would not alter the fact that the application was lodged late.
Ground 2
The second ground of review in the application is:
I have applied for the review at Brisbane registry, it was just 15 minutes late, and also there are some spelling mistakes in my application. Some reason tribunal has corrected my details and gave me the decision. Tribunal has accepted my exceptional circumstances. Tribunal said there is no Jurisdiction in my case. I hope Federal circuit court has Jurisdiction in my case.
(errors in original)
The application to the Tribunal at CB81 shows that it was lodged at 00:15:27 on 23 August 2016. That was, indeed, 15 minutes late. However, as explained below, it is not arguable that there was a jurisdictional error in this case.
Ground 3
The third ground of review in the application is:
The Tribunal has informed me it was of the view that the application has been lodged out of the time frame just one day later (actually minutes late)to the Tribunal was not a valid application because it was not lodged within the relevant time limit. Tribunal did not do anything wrong but internet issues just minutes of time pushing my life in to danger. Even I can’t reapply for protection visa. Here I become a victim. I hope court will understand my issue.
(errors in original)
This is not a ground of review as such. It does not raise an arguable point.
Ground 4
The fourth ground of review in the application is:
The tribunal online application for review took some time also there is no help by any one, the person who helped me did not have much knowledge. That is the reason application has been delayed one day as it was lodged at midnight with some minutes late. So I thought tribunal would accept but it did not accept.
(errors in original)
This is not a ground of review as such. It does not raise an arguable point.
Ground 5
The fifth ground of review in the application is:
I am from Malaysia, has lack of language skill. I was in deep financial hardship my Australian partner also did not have sufficient funds to lodge the review by taking some one advise. That is the reason I took long time to get all documents ready for the review and lodged the application on AAT’s website on 22nd August 2016, but it was considered as 23rd August 2016 because of it was lodged at 12.15 AM, I had tried my best to get the documents ready as soon as possible.
(errors in original)
This is not a ground of review as such. It does not raise an arguable point.
Ground 6
The sixth ground of review in the application is:
Regarding the refusal of my protection visa application, I am a Catholic would not be accepted in Malaysia according to present situation in SABAH, Malaysia is supressing the agitation of SABAH and targeting the Christians because of Muslim people’s mind is not so open and they still can't accept it and also government is also not accepting. That’s why the town government forbids people to believe Catholic, so I have to leave Malaysia and come to Australia to find protection, now If I go back to Malaysia I will be killed.
(errors in original)
This is not a ground of review as such. It does not raise an arguable point. I would add that religious claims were not made to the delegate.
Ground 7
The seventh ground of review in the application is:
I request the Federal circuit court of Australia to accept my Judicial Review application outside the time period under the s.477 of the Migration Act 1958 related to federal circuit court regulations.
(errors in original)
This is not a ground of review as such. It does not raise an arguable point.
Ground 8
The eighth ground of review in the application is:
Therefore I request the Judge of FCCA to justify whether the Tribunal was correct in assessing my review application as tribunal doesn't have jurisdiction to consider the application for review of the delegate's decision not to grant the Protection visa.
(errors in original)
This is not a ground of review as such. It does not raise an arguable point.
The applicant’s oral submissions
In her oral submissions, the applicant said that it was the Tribunal’s right to determine that she was late in filing her application and she said that she accepted that the Tribunal did not have jurisdiction in her case. However, she said her application to the court was in the expectation that she would be allowed to stay in Australia permanently. Obviously, those oral submissions did not point to any jurisdictional error on the part of the Tribunal.
Other possible points
As the applicant is unrepresented, I have considered whether there may be any other arguable ground of review in this matter. I have been unable to discern any point that could possibly assist the applicant, apart from the Full Court of the Federal Court’s decision in DFQ17. As it has the potential to assist the applicant, I will discuss it in detail below. Much of the following discussion comes directly from my decision in DJD17 v Minister for Immigration and Border Protection [2019] FCCA 2747. By way of summary, the principal point of distinction between the present case and DFQ17 is that the notification of the delegate’s decision in the present matter was sent by email, whereas in DFQ17, the notification was sent by post.
Legislation
Section 66 of the Act relevantly provided that:
(1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.
(2) Notification of a decision to refuse an application for a visa must:
…
(d) if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500 – state:
(i) that the decision can be reviewed; and
(ii) the time in which the application for review may be made; …
Section 412 of the Act relevantly provided that:
(1) An application for review of a Part 7-reviewable decision must:
(a) be made in the approved form; and
(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
...
Subsection 494C(5) of the Act provided that:
(5) If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.
Reg.4.31(2) of the Migration Regulations 1994 (“the regulations”) relevantly provided that:
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.
DFQ17
In DFQ17, it was held that a purported notification under s.66(2)(d) of the Act was unclear in relation to the time in which an application could be made and that, consequently, the notification was ineffectual and time had not begun to run. The matters which made the notification unclear in DFQ17 included that the notification was sent by post, and it was accordingly difficult for the applicant to work out the date when he was notified of the delegate’s decision. That difficulty was compounded by the fact that the relevant information was spread over three different areas of the relevant letter.
With more precision, at paragraph 29 of the decision in FWQ18 v Minister for Immigration and Border Protection [2019] FCCA 2308, Judge Driver of this court explained the difficulties in DFQ17 in the following way:
The key difference between the instant case and DFQ17 is that, in DFQ17, there was additional complexity in calculating the prescribed review period, due to the fact the notification letter was sent by post. The calculation in DFQ17 was particularly complex due to the following factors:
a.section 494C(4)(a) applied in that case (but not in the present case). Section 494C(4)(a) uses the expression “7 working days...after the date of the document”, whereas reg 4.31(2) stipulates, “28 days, commencing on the day the applicant is notified of the decision”. This meant that it was necessary to have regard to s.36(1) of the Acts Interpretation Act 1901 (Cth) to work out how to calculate the time, and resulted in one day having to be double-counted in DFQ17 at [45]; and
b.there was also the difference between the use of the term “days” in reg 4.31(2) and “working days” in s.494C(4)(a). As a result of the different terms used in those provisions, there was a material difference in what days were counted for the purpose of each provision. That is, the 7 day period was not inclusive of the first day, weekends and public holidays, whereas the 28 day period was inclusive of the first day, weekends and public holidays.
Ali
Following DFQ17, in Ali v Minister for Home Affairs [2019] FCA 1102, Nicholas J, sitting as a single judge of the Federal Court on appeal from this court, held that DFQ17 was distinguishable and the relevant notification was effective. The practical point of distinction was that in Ali, but not in DFQ17, the notification was sent by email. Significantly, sending the notification by email meant that the date of notification was obvious. It was the date the email was sent, which could be readily ascertained. The date the email was read is immaterial. In Ali, as in the present case, the complications introduced by s.494C(4)(a) of the Act were absent.
Nicholas J also noted that, unlike in DFQ17, in Ali, there were only two parts of the notification that needed to be put together to work out the time frame. The two parts of the notification in Ali were:
Review rights
The decision can be reviewed.
The Department cannot consider your visa application any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision. An application for merits review of this decision must be given to the AAT within 21 calendar days after the day on which you are taken to have received this letter.…
Lodging an application for merits review
…
As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.A 21 day time limit applied in Ali but in the present case the time limit was 28 days. In the present case, as in Ali, the notification was also sent by email. The relevant wording of the notification in the present case was:
Review Rights
The department cannot consider your visa application any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision. An application for merits review of this refusal decision must be given to the AAT within the prescribed timeframe. This timeframe commences on the day on which you are taken to have been notified of this decision, and ends at the end of 28 days.
Please note that this review period is prescribed in law and an application for merits review may not be accepted after that date.
…
Financial or caseworker assistance
…
As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.
The only apparent differences between Ali and the present case in the notifications are that:
a)strangely, in the present case, the advice that the applicant is taken to have received the notification at the end of the day it was transmitted was under the heading Financial and case worker assistance rather than under the heading Lodging an application for merits review as it was in Ali; and
b)in Ali, the notification said:
An application for merits review of this decision must be given to the AAT within 21 calendar days after the day on which you are taken to have received this letter …
whereas, in the present case, the notification said:
An application for merits review of this refusal decision must be given to the AAT within the prescribed timeframe. This timeframe commences on the day on which you are taken to have been notified of this decision, and ends at the end of 28 days.
FWQ18
While the notification in Ali is not precisely identical to the notification in the present case, the notification in the present case is precisely identical to the notification in FWQ18. The relevant parts of the notification in that case were set out in paragraph 9 of the reasons for decision in FWQ18 as follows:
The notification letter was set out in the following format:
a.the date that the notification letter was sent to the applicant was stated in the top left hand corner of the first page;
b.the notification letter contained a heading on the first page titled “Review Rights”, under which it stated:
The department cannot consider your visa application any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision. An application for merits review of this refusal decision must be given to the AAT within the prescribed timeframe. This timeframe commences on the day on which you are taken to have been notified of this decision, and ends at the end of 28 days.
Please note that this review period is prescribed in law and an application for merits review may not be accepted after that date.
c.the notification letter contained a heading on the third page titled “Financial or case worker assist assistance”, under which it stated:
... As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.
Conclusion on DFQ17
In my view, the present case is relevantly indistinguishable from Ali, rather than DFQ17. Ali is binding on this court. Even if Ali is not relevantly indistinguishable from the present case, the present case is certainly indistinguishable from FWQ18. For reasons of judicial comity, I should follow FWQ18 unless I am satisfied that it is plainly wrong. I am not satisfied that FWQ18 is plainly wrong and I do follow it. The result is that the applicant does not have an arguable case based on DFQ17.
Calculation of time
For completeness, I also address the issue of the calculation of time. In FWQ18, the application was about three months out of time, so the precise calculation of time was unnecessary[1]. In Ali, the application was about a week out of time, so, again, the precise calculation of time was unnecessary. In the present case, the Tribunal considered the application to be one day out of time. In fact, the application was only 15 minutes and 27 seconds out of time. Consequently, it is necessary to precisely calculate the time frames.
[1][1] Similarly, in BUY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 1787 the application was about five days out of time and in FJR18 v Minister for Home Affairs [2019] FCCA 2274 the application was about three days out of time.
As stated, the notification of the delegate’s decision was sent to the applicant on 25 July 2016 by email. The application to the Tribunal was lodged on 23 August 2016.
Applying s.494C(5) of the Act, the applicant was taken to have received the notification at the last second of 25 July 2016. The 28 days mentioned in reg.4.13(2) of the regulations was to commence on the day of notification.
In ordinary English, that means the first day of the 28 day period included the day of notification, being 25 July 2016. That is consistent with item 2 of s.36(1) of the Acts Interpretation Act 1901, which provides as follows:
Calculating time
A period of time referred to in an Act that is of a kind mentioned in column 1 of an item in the following table is to be calculated according to the rule mentioned in column 2 of that item:
| Calculating periods of time | ||
|
… | Column 1 If the period of time: | Column 2 then the period of time: |
| 2 | is expressed to begin at, on or with a specified day | includes that day. |
…
In the present case, the period of time is expressed to commence on the day of notification. Commence means the same as begin. Therefore, the 28 day time period included the day of notification.
Conclusion
As none of the applicant’s grounds of review are arguable, and as I have been unable to discern any arguable ground of review, the application for an extension of time will be dismissed, even though the applicant’s explanation for her delay may be adequate. As there were additional written submissions in this matter, I will hear the parties on the question of costs.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 26 September 2019
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