FJR18 v Minister for Home Affairs & Anor
[2019] FCCA 2274
•19 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FJR18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2274 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – Tribunal finding it lacked jurisdiction – review application lodged late – whether the applicant was clearly notified of the period within which he could seek review considered – no jurisdictional error – observations on the importance of clarity in the notification of time limits on merits review. |
| Legislation: Migration Act 1958 (Cth), ss.66, 412, 494B, 494C Migration Regulations 1994 (Cth) |
| Cases cited: Ali v Minister for Home Affairs [2019] FCA 1102 DFQ17 v Minister for Immigration [2019] FCAFC 64 |
| Applicant: | FJR18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2889 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 19 August 2019 |
| Delivered at: | Sydney |
| Delivered on: | 19 August 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms A Wong of Mills Oakley |
ORDERS
The application filed on 15 October 2018 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2889 of 2018
| FJR18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 11 September 2018. The Tribunal found that it lacked jurisdiction in this case because the applicant’s review application was lodged late.
Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 12 August 2019.
The applicant is a male citizen of Malaysia who arrived in Australia on 25 November 2017 as the holder of an Electronic Travel Authority (Subclass 601) travel visa.[1]
[1] Court Book (CB) 49
On 12 January 2018, the applicant lodged a protection visa application,[2] in which he stated that he was of Indian/Hindu ethnicity and religion[3] and made written claims to fear harm in Malaysia because he had a five year relationship with a Muslim girl. He claimed his girlfriend’s family objected to the relationship because the applicant was Indian and a Hindu and his girlfriend was Muslim. He claimed his girlfriend’s brothers also physically beat him, forced him to leave his girlfriend and threatened to kill him if he returned to Malaysia. The applicant said he moved to Kuala Lumpur for one year but his girlfriend’s siblings continued to disturb him and even hurt his girlfriend. He claimed the Malaysian authorities would not protect him because being Muslim was their priority. He also claimed he was unable to relocate within Malaysia.[4]
[2] CB 1-30
[3] CB 10, [Q29], [Q30]
[4] CB 24-26
On page 16 of the protection visa application form, the applicant nominated an email address for the purposes of receiving written correspondence from the Minister’s Department and also expressly consented to the Minister’s Department communicating with him by fax, email or other electronic means.[5]
[5] CB 11, [Q37], [Q38]
The delegate
In a letter transmitted to the applicant’s nominated email address on 16 March 2018, the applicant was invited to attend an interview with the Minister’s delegate scheduled for 27 March 2018 and to provide evidence of his fingerprints and a digital photograph.[6] The applicant did not provide any further information or attend the interview.
[6] CB 33-44
On 6 June 2018, the delegate refused to grant the applicant a protection visa.[7] The delegate found on the basis of relevant country information that Malaysians were free to marry people of other races or ethnicities, although non-Muslims wishing to marry a Muslim must convert to Islam for the marriage to be officially recognised. The delegate was also satisfied that the Royal Malaysian Police were willing to enforce the law and would not withhold protection from the applicant. Noting the applicant was in a mixed relationship and not a mixed marriage, the delegate was not satisfied that the country information about couples facing stigma or pressure applied to them. For these reasons, the delegate was not satisfied that the applicant met the criteria for a protection visa.[8]
[7] CB 45-56
[8] CB 52
The Tribunal
By an application completed by hand and received by the Tribunal on 6 July 2018, the applicant sought review of the delegate’s decision.[9]
[9] CB 57-62
The applicant included in his review application the same email address he previously nominated to the Minister’s Department, and also ticked “yes” to the box asking if he agreed to the Tribunal sending all correspondence to him by email.[10]
[10] CB 60
In a letter dated 20 July 2018 and transmitted by email to the applicant’s nominated email address, the Tribunal invited the applicant to comment on the validity of his review application.[11] The Tribunal informed the applicant that the review application was not lodged within the relevant time limit as required by regulation 4.31(2) of the Migration Regulations 1994 (Cth) (Regulations) as the delegate’s refusal notification and decision was dispatched by email on 6 June 2018 and the last day for lodging an application for review was 3 July 2018. The Tribunal informed the applicant that as his review application was not lodged until 6 July 2018, it appeared to be “out of time”. The Tribunal invited the applicant to respond by 3 August 2018.[12]
[11] CB 69-71
[12] CB 70
In a series of emails transmitted on 23 July 2018, the applicant responded to the Tribunal’s letter and appears to have conceded that the last day to file the application was 3 July 2018 but he had made a mistake and sent his application on the wrong day.[13]
[13] CB 72-73
In a decision dated 10 September 2018, the Tribunal found it had no jurisdiction to review the delegate’s decision as the application for review was lodged outside the prescribed period of 28 days.[14]
[14] CB 75-80
As the applicant was not in immigration detention on the day he was notified of the delegate’s decision, the Tribunal found that his application for review had to be made within 28 days, “commencing on that day” pursuant to regulation 4.31(2) of the Regulations.[15]
[15] CB 77, [2]
The Tribunal found the material before it indicated that the applicant was notified of the delegate’s decision by a letter dated 6 June 2018 and sent by email in accordance with the statutory requirements.[16] In those circumstances, the Tribunal found the applicant was taken to have been notified of the delegate’s decision on 6 June 2018 and the prescribed period in which he was required to apply to the Tribunal for a review of the delegate’s decision expired on 3 July 2018.[17] It noted that it had put this issue to the applicant for comment and expressly considered his response that he did not lodge his review application by 3 July 2018 because he made a mistake.[18]
[16] CB 77, [3]
[17] CB 77, [4]
[18] CB 77, [5]
As the applicant had not lodged his review application until 6 July 2018, the Tribunal found it had no jurisdiction to review the delegate’s decision.[19]
[19] CB 77, [6]
The present proceedings
These proceedings began with a show cause application filed on 15 October 2018. The applicant continues to rely upon that application. There is one ground in it:
Tribunal has denied procedural fairness as the documents submitted to AAT within the time frame, but did not consider delays caused by factors beyond the client's control.
(errors in original)
The application is supported by a short affidavit with it, which I received. I also have before me as evidence the court book filed on 7 February 2019 and an affidavit by Olivia Kate Scully made on 25 February 2019.
The ground of review advanced by the applicant does not establish any jurisdictional error. In that regard I agree with the Minister’s submissions.
To the extent that the applicant seeks to contend that he “submitted” (or sent) his review application to the Tribunal within the prescribed period that a valid application could be lodged, this contention is misconceived. The application for review was completed by hand by the applicant and was undated. The Tribunal received the application on 6 July 2018 by post.[20] Whilst there is no supporting evidence, it is possible that the applicant may have posted the application within the prescribed timeframe (namely, by 3 July 2018), but as it was not received by the Tribunal until 6 July 2018, it was lodged three days outside the timeframe. An application for review must be given to the Tribunal within the prescribed period, [21] not just sent. The Tribunal did not have the power to enlarge time or jurisdiction to entertain an application which was not made within time[22] and proceeded to find that it had no jurisdiction to review the matter.
[20] See: CB 57
[21] Section 412(1)(b)
[22] See: s.412(1)(b) of the Migration Act and regulation 4.31(2); SZIUK v Minister for Immigration [2007] FCA 226 at [12] per Tracey J; Beni v Minister for Immigration [2018] FCAFC 228, overturning Brown v Minister for Home Affairs (No. 2) [2018] FCA 1787 in which Greenwood J held there was nothing in the Migration Act to exclude or modify the Tribunal’s power to extend time in relation to Migration and Refugee Division matters
Subject to the discussion below about the notification of the time limit, the Tribunal’s finding that it did not have jurisdiction reveals no error because:
a)the delegate’s notification letter complied with s.66(1) of the Migration Act 1958 (Cth) (Migration Act) as it was sent to the applicant in accordance with s.494B(5) of the Migration Act and regulation 2.16(3) of the Regulations. In particular, the notification was valid as it:
i)specified the criterion the applicant did not satisfy as required by s.66(2(a);
ii)gave written reasons about why the criterion was not satisfied in accordance with s.66(2)(c); and
iii)stated that the decision could be reviewed; in general terms the time in which the application for review could be made; who could apply for the review; and where the application for review could be made in accordance with s.66(2)(d)(i)-(iv);
b)pursuant to s.494C(5), the applicant was deemed to have received notification of the delegate’s refusal decision at the end of the day on which the document was transmitted (namely, on 6 June 2018),[23] and the deemed receipt of the notification of the delegate’s decision is not rebuttable;[24]
c)in accordance with s.412(1)(b) of the Migration Act and regulation 4.31 of the Regulations, the Tribunal correctly found that the period in which the applicant could validly lodge an application for review to the Tribunal was 28 days after he was notified of the decision, the applicant had until 3 July 2018 to lodge his application;
d)the applicant did not lodge his review application until 6 July 2018, three days after the prescribed period expired;
e)there is no provision in the Migration Act that allows the Tribunal, or a Court, to override, or extend, the time limit set by s.412(1)(b), or any jurisdiction to entertain an application that was not made within time;[25] and
f)the filing of an application with the Tribunal within that time limit is a prerequisite to the existence of the Tribunal’s jurisdiction.[26]
[23] DZAFH v Minister for Immigration & Anor [2017] FCCA 387 at [44]-[46] upheld on appeal in DZAFH v Minister for Immigration & Anor [2017] FCA 984; Bui v Minister for Immigration [2017] FCA 714
[24] Minister for Immigration v Singh (2000) 98 FCR 77; [2000] FCA 377 at [17] per O’Connor and Mansfield JJ and Xie v Minister for Immigration [2005] FCAFC 172 at [13]-[14]
[25] See: s 412(1)(b) of the Migration Act and regulation 4.31(2); Beni; SZIUK at [12]
[26] Fernando v Minister for Immigration (2000) 97 FCR 407; [2000] FCA 324; VEAN of 2002 v Minister for Immigration (2003) 133 FCR 570; [2003] FCAFC 311 at [32]-[33]
To the extent that the Tribunal was required to afford the applicant general law procedural fairness, it complied with that requirement by writing to him on 20 July 2018 and inviting him to comment on the issue that his review application was lodged out of time and that it appeared the Tribunal did not have jurisdiction.[27] The applicant responded in an email transmitted on 23 July 2018, in which he conceded that he had made a mistake and sent his application on 4 July 2018.[28]
Consideration of DFQ17
[27] CB 69-71; Kankaew v Minister for Immigration & Anor [2014] FCCA 2335 at [35]
[28] CB 72
As I explained to the applicant, however, the real question in this case concerns the decision of the Full Federal Court in DFQ17 v Minister for Immigration.[29] The Minister properly raises that issue as a model litigant. The Minister’s submissions in relation to the issue are set out at [23] to [28] below.
[29] [2019] FCAFC 64
Whilst not pleaded by the applicant, the Minister, as model litigant, notes that in DFQ17, the Full Federal Court found that the Minister’s notification of refusal letter in DFQ17 (the notification letter) was defective because it did not clearly state the time in which the application for review may be made under s.66(2)(a)(ii) of the Migration Act. The effect of that non-compliance was time had not yet commenced on the 28-day period to apply for review of the primary decision. In particular, the Full Court examined the notification letter in DFQ17 and held there were four separate pieces of information that were important:
a)on page 2, under “Review Rights”, the letter referred to the 28-day period for the appellant to seek review of the refusal;[30]
b)on page 3, under “Financial or Case Worker Assistance”, the letter referred to the seven day period by which the appellant was taken to have received notification;[31]
c)on page 1, the date of the letter was included in the top left corner;[32] and
d)importantly, the 28-day period was inclusive of the first day, weekends and public holidays, while the seven day period was not, and this meant the calculation of time was “not a straightforward exercise”.[33]
[30] DFQ17 at [60]
[31] Ibid
[32] Ibid
[33] DFQ17 at [45]
The Full Court found the notification letter in DFQ17 failed to convey clearly the information that any review application had to be made by 13 March 2017 because “it was piecemeal, entirely obscure and essentially incomprehensible” and, therefore, did not satisfy s.66(2)(d)(ii).[34]
[34] DFQ17 at [62]
Notwithstanding DFQ17, the notification letter in the present matter[35] is said to have a number of differentiating features that distinguish this case from DFQ17, namely:
a)on page 1, under “Review Rights”, the letter referred to a 28 calendar day period for the applicant to seek review of the refusal;[36]
b)on page 3, under “Financial or case worker assistance”, the letter stated that as the letter was sent to the applicant by email, it was taken to have been received at the end of the day it was transmitted;[37]
c)on page 1, the date of the letter was included in the top left corner;[38] and
d)the notification letter itself was transmitted to the applicant by email on 6 June 2018 (rather than post), which was the same date as the date of the notification letter.[39]
[35] At CB 46-48
[36] CB 46
[37] CB 48
[38] CB 46
[39] See affidavit of Ms Scully affirmed on 25 February 2019
Accordingly, the Minister submits that the notification letter in the present matter complied with s.66(2)(d)(ii) of the Migration Act, which required that it state the time in which an application for review may be made. The notification letter also is said to have conveyed the necessary information about when the review application had to be made by the applicant. In particular, it conveyed that any application for merits review must be given to the Tribunal within 28 calendar days after the day on which the applicant was taken to have received the notification letter,[40] and also stated when the applicant was taken to have received the notification letter “at the end of the day it was transmitted” under the heading “Financial or case worker assistance”.[41]
[40] CB 46
[41] CB 48
The Minister contends that a person exercising a reasonable amount of care when reading the notification letter would understand it to convey that an application for review had to be lodged within 28 days after the date of the letter was emailed.[42] He submits that none of the complexities that the appellant faced in DFQ17 in determining the time in which an application for review could be made are present in this case.[43]
[42] Ali v Minister for Home Affairs [2019] FCA 1102, at [29] per Nicholas J
[43] Ibid, at [30]
The Minister submits that the information contained in the notification letter in this matter clearly conveyed that an application for review was required to be lodged within 28 days[44] and enabled the applicant to calculate the relevant timeframes (i.e., 28 calendar days from 6 June 2018). He submits that it cannot be said that the information provided as to the applicant’s review rights was obscure or incomprehensible. This case is therefore said to be plainly distinguishable from DFQ17.
[44] Ibid
The notification letter in issue in this case is reproduced in the court book from pages 46 to 48. I accept from the affidavit of Ms Scully that the notification letter was sent by email on the date of 6 June 2018, which the letter bears. The notification letter has some similarities with that dealt with by the Full Federal Court in DFQ17, but also some significant differences.
Like the notification letter in DFQ17, it is necessary to identify the relevant review period from three different places in the letter. This involves, first, the date of the letter appearing at the top of it. Secondly, on the first page of the letter under the heading “Review Rights” the letter correctly states that:
An application for merits review must be given to the AAT within the prescribed timeframe.
In that regard, while it might be thought that making an application for review involves signing and dispatching it, that is not sufficient. The review application must be received by the Tribunal within the prescribed period. The letter goes on to state that the relevant timeframe commences on the day on which the applicant is taken to have been notified of the decision and ends at the end of 28 days.
Regrettably, it is then necessary to turn to the third page of the letter under the heading “Financial or case worker assistance” to identify the critical information, which is:
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.
In other words, a careful reading of the letter, including the date of it, the statement of the period and the reference to deemed receipt conveys the information that the applicant had 28 days from and including 6 June 2018 to lodge with the Tribunal his review application. I note in this connection that the notification shares with that in DFQ17 the mischief that the date of receipt is double-counted.
If I were deciding this case solely on the basis of the Full Federal Court decision in DFQ17, I would have found that the notification was ineffective and no notification in law. That is because the notification letter shares problematic features with that dealt with in DFQ17. However, I find myself bound by the more recent decision of the Federal Court in Ali v Minister for Home Affairs.[45] In that case Nicholas J, in circumstances relevantly indistinguishable from the present, found, at [28] to [30], that the notification letter was sufficiently clear to be operative. The only difference between that case and the present is that the review period was 21 days rather than 28.
[45] [2019] FCA 1102
The consequence for the courts and the Tribunal in determining its jurisdiction is an unhappy one. Reasonable minds may differ about what level of obscurity is necessary in order to render a notification invalid. There is a strong likelihood of inconsistent decisions being made, both by the courts, and the Tribunal in determining its own jurisdiction.
The only sure way to avoid inconsistent decisions is for the Minister’s Department to do one of two things in notifying decisions. The first and simplest would be to specify in the notification letter the final date for a review application to be received by the Tribunal. A complaint may be raised that that obligation is too onerous for the Minister’s Department and the task too challenging. The short answer to that argument is that if it is too difficult for the Minister’s Department, it is also too difficult for applicants.
The alternative way of proceeding would be for the Minister’s Department to state in its notification letters, in one place, clearly and simply, how the review period may be calculated. In the present case, for example, the letter might have stated under the heading “Review Rights”:
This timeframe commences today and ends at the end of 28 days.
It can be expected that the courts will continue to pay close attention to what is set out in notification letters. An important reason for that is that the review period is absolute and the Tribunal has no power to extend time. I have, over the past decade, regularly called for legislative reform to confer on the Tribunal a power to extend time.[46] That has not occurred. A consequence is that the Tribunal is unable to remedy injustice brought about by uncertainty on the part of review applicants of the period they have in which to seek merits review. It follows that it is of critical important for notification letters to state clearly and simply what the review period is.
[46] See, for example, Walia v Minister for Immigration & Anor [2018] FCCA 1357 at [30]; SZSKX v Minister for Immigration & Anor [2014] FCCA 157 at [17] and Sherpa v Minister for Immigration & Anor [2010] FMCA 664
In the present case, I find, on the binding of authority of Ali, that the notification letter was sufficiently clear and was, hence, effective. The review application was lodged out of time with the consequence that the Tribunal correctly found it lacked jurisdiction.
Conclusion
I conclude that the applicant is unable to demonstrate that the decision of the Tribunal in this case is affected by any jurisdictional error. The decision is, therefore, a privative clause decision and the application must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $5,400. The applicant asked questions concerning his visa status and arrangements for payment of costs, but did not oppose the making of a costs order.
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 $5,400.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 20 August 2019
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