FWQ18 v Minister for Immigration
[2019] FCCA 2308
•21 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FWQ18 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2308 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – merits review application filed late – Tribunal finding it lacked jurisdiction – no jurisdictional error. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.36 Migration Act 1958 (Cth), ss.5J, 36, 66, 412, 422B, 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 ELM18 v Minister for Home Affairs & Anor [2019] FCCA 2108 FJR18 v Minister for Home Affairs & Anor [2019] FCCA 2274 Htun v Minister for Immigration (2001) 194 ALR 244 |
| Applicant: | FWQ18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3149 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 21 August 2019 |
| Delivered at: | Sydney |
| Delivered on: | 21 August 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr J Tay of HWL Ebsworth, with leave |
ORDERS
The application filed on 12 November 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 $5,600.
The name of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3149 of 2018
| FWQ18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL 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 5 November 2018. The Tribunal found that it did not have jurisdiction in the matter before it because the applicant had failed to seek merits review within the prescribed time limit.
The background facts relating to this matter are set out in the Minister’s outline of submissions filed on 14 August 2019.
The applicant, a male citizen of Malaysia, arrived in Australia on 27 October 2017 as the holder of an Electronic Travel Authority (subclass 601) visa.[1] On 18 February 2018, the applicant lodged an application for a protection (subclass 866) visa (protection visa).[2]
[1] Court Book (CB) CB 43
[2] CB 1-17
In his application, the applicant nominated an email address for correspondence (nominated email address).[3]
[3] CB 5
The applicant's claims can be summarised as follows:[4]
a)his hometown in Malaysia is close to the border of Thailand;
b)a gang in his hometown operates its business in Thailand;
c)a member of that gang wants him to join it;
d)the applicant was worried that the gang will ask him to do illegal things if he joins it;
e)he tried to seek refuge in Singapore but he was not granted a visa there; and
f)he fears that the gang might kidnap him and send him to Thailand to work for them if he returns to Malaysia.
[4] CB 65
On 6 June 2018, a delegate of the Minister (delegate) refused to grant the applicant a protection visa.[5] In the reasons for decision, the delegate noted that the applicant’s claimed fear of harm in Malaysia was not for one of the reasons prescribed in s.5J(1)(a) of the Migration Act 1958 (Cth) (Migration Act).[6] Further, the delegate found that there was no information before him which would suggest that the applicant would be targeted on his return to Malaysia for one or more of the reasons mentioned in s.5J(1)(a) of the Migration Act.[7] Accordingly, the delegate concluded that the applicant was not a refugee for the purposes of the Migration Act, and was not satisfied that there was a real chance that the applicant would be persecuted if he returned to Malaysia. As a result, the delegate found that the applicant was not a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Migration Act.[8]
[5] CB 43-51
[6] CB 44
[7] CB 44
[8] CB 44
In assessing the complementary protection criteria, the delegate considered country information about gangs in Malaysia[9] but was not satisfied that the applicant fulfilled the complementary protection criterion pursuant to s.36(2)(aa) of the Migration Act, finding that there was no real risk that the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed to Malaysia.[10]
[9] CB 44-45
[10] CB 46
On 6 June 2018, the Minister’s Department sent a letter to the applicant via his nominated email address, notifying him of its decision to refuse his application for a protection visa (notification letter).[11] Attached to the notification letter was the delegate’s decision.
[11] CB 39
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 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.
On 12 October 2018, the applicant applied to the Tribunal for review of the delegate’s decision.[12]
[12] CB 52-53
On 18 October 2018, the Tribunal sent an email to the applicant attaching a letter notifying him that his application to the Tribunal for review was not valid as it was not lodged within the 28 day time limit required by regulation 4.31(2) of the Migration Regulations 1994 (Cth) (Regulations).[13] In the same letter, the Tribunal informed the applicant that he could make comments in relation to the validity of his application.[14] The applicant did not provide any response or comments to the Tribunal in relation to the validity of his application.
[13] CB 73-75
[14] CB 74
On 5 November 2018, the Tribunal sent an email to the applicant, attaching a letter notifying him of the Tribunal’s decision made the same day.[15] The Tribunal noted that the Minister’s Department had complied with s.494C of the Migration Act as it had properly notified the applicant on 6 June 2018 of the delegate’s decision to refuse to grant the protection visa.[16] The Tribunal found that the applicant did not lodge his application for review to the Tribunal within 28 days of receiving notification of the delegate’s decision, and therefore the Tribunal concluded that it did not have jurisdiction to review the delegate's decision.[17] At [6] - [7] of its written reasons, the Tribunal found as follows:[18]
The Tribunal finds that the applicant is taken to have been notified of the decision on 6 June 2018: s 494C of the Act. Therefore the prescribed period to apply for review ended on 3 July 2018.
As the application for review was not received by the Tribunal until 12 October 2018, the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.
[15] CB 77 to 83
[16] CB 83
[17] CB 83
[18] CB 83
The present proceedings
These proceedings began with a show cause application filed on 12 November 2018. The applicant continues to rely upon that application. The grounds in it are:
1.AAT is wrong because I should be given another chance for interview.
2.AAT is not taking my situation for consideration.
3. It is not fair to refuse me with the reason that the Tribunal has no jurisdiction.
The application is supported by a short affidavit filed with it which I received. I also have before me as evidence the court book filed on 6 February 2019.
Exhibit R1 is correspondence from the Minister’s solicitors to the applicant dated 14 August 2019 about this hearing. The letter was tendered as, when the matter was called, there was no appearance by or on behalf of the applicant. However, the applicant did appear somewhat late and the hearing proceeded.
The only issue in this case of any legal significance is the question whether the applicant was lawfully notified of the period within which he could seek merits review before the Tribunal. This arises, in general terms, from the applicant’s first ground of review. The Minister’s submissions dealing with that issue are set out below from [17] through to [36]. As explained below, I agree with those submissions.
Ground 1
Ground 1 of the application asserts that the Tribunal's decision is “wrong” as the applicant is of the opinion that he should be provided with a chance for an interview. To the extent that this ground refers to the applicant’s belief that the matter should proceed to hearing before the Tribunal, for the reasons below, the Minister submits that the Tribunal was correct to find that it did not have jurisdiction to review the delegate’s decision.
Pursuant to regulation 4.31(2) of the Regulations, the applicant was required to lodge his application for review to the Tribunal within a 28 day period of receiving notice from the Minister’s Department about the refusal of his protection visa. The applicant did not lodge his application within the 28 day period, and accordingly the Minister submits that he failed to comply with regulation 4.31(2).
The Tribunal does not have the power to extend the prescribed time periods in s.412(l)(b) of the Migration Act or regulation 4.31 of the Regulations.[19] 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.[20]
[19] Beni v Minister for Immigration [2018] FCAFC 228 at [83]; Awon v Minister for Immigration [2015] FCA 846 at [38]-[39]; CQP15 v Minister for Immigration [2017] FCA 854 at [43]; NACG v Minister for Immigration [2002] FCAFC 173 at [7]; Minister for Immigration v ASE15 (2016) 237 FCR 460 at [48]
[20] CQP15 at [44]; NACG at [8]
Section 66(1) of the Migration Act provides that 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. Pursuant to regulation 2.16(3) of the Regulations, the prescribed way of notifying an applicant of a decision to refuse to grant a visa is by one of the methods specified in s.494B of the Migration Act. Pursuant to s.494B(5)(b), one of the methods involves transmitting the document by email to the last email address provided to the Minister for the purposes of receiving documents. Pursuant to s.494C(5), the person is taken to have received the documents “at the end of the day on which the document is transmitted”.
In this case, the delegate’s decision and notification letter were sent by email on 6 June 2018 to the nominated email address. Although the applicant did list a postal address in his application, the Minister submits it was not obliged to communicate with him by that means and it was open to the Minister to use any one of the methods provided for under s.494B.[21]
[21] See Haque v Minister for Immigration [2010] FCA 346; 221 FCR 289 at [64]
Pursuant to s.494C(5), the applicant was taken to have received the delegate’s decision at the end of 6 June 2018 and the last day of the prescribed 28 day period was therefore 3 July 2018.[22]
[22] See DZAFH v Minister for Immigration & Anor [2017] FCCA 387 at [44]-[46] (affirmed on appeal in DZAFH v Minister for Immigration [2017] FCA 984)
The applicant lodged his application for review of the delegate’s decision on 12 October 2018, which is clearly outside of the prescribed review period.
Section 66(2)(d)(ii) of the Migration Act provides that notification of a decision to refuse an application for a visa must state the time in which the application for review may be made. This section was recently considered by a Full Court of the Federal Court (Rares, Perram and Farrell JJ) in DFQ17 v Minister for Immigration.[23]
[23] [2019] FCAFC 64
In DFQ17, Perram J held that the notification must set out the time in which the application for review may be made in a way which is not only complete but clear as well.[24] His Honour found at [60] that the notification letter contained the time in which the application for review may be made in three different sections across different pages. Those three sections were the date of the letter on page 1, the 28 day period during which the appellant could seek review of the delegate's refusal decision on page 2, and the seven working day period by which the appellant was taken to have received the notification on page 3.
[24] At [58]
His Honour concluded that accordingly, the notification letter under consideration in DFQ17 failed to convey clearly the information that any review application had to be made by the relevant date but was “piecemeal, entirely obscure and essentially incomprehensible”.[25] Consequently, the letter did not state the matter in s.66(2)(d)(ii) which meant that time had not yet commenced to run and the Tribunal erred in concluding that the review application was out of time and that it had no jurisdiction to entertain the review application.[26]
[25] At [62]
[26] At [62]
The Minister submits that the notification letter in this case is distinguishable from the letter sent in DFQ17 and that it stated with sufficient clarity the time in which a review application may be made.
In DFQ17, the notification letter was sent to the appellant by post and stated:[27]
a)on the second page:
An application for merits 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 the decision, and ends at the end of 28 days.
b)and, on the third page:
As this letter was mailed to an Australian address from within Australia, you are taken to have received it seven days after the date of this letter. A working day does not include weekends or public holidays in the Australian state or territory where this letter was posted.
[27] see Annexure A to DFQ17
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.
In the present case, and unlike in DFQ17, the Minister submits that the applicant only required two pieces of information to calculate the prescribed review period, being:
a)the 28 day time limit; and
b)the date of receipt of the email that attached the notification letter.
Accordingly, the Minister submits that the calculation of the prescribed review period from this notification letter does not have the complexities present in DFQ17. Rather, as this Court held in ELM18 v Minister for Home Affairs & Anor[28] at [62] (in which the Court considered a notification letter substantively identical to the letter in the present case), there was no need for the applicant to “determine a new date from which to gauge when the time period started (ie, seven days after the date of notification not including weekends or public holidays) and then count 28 days… He was not faced with differing definitions of what was a day or required to undertake two separate calculations. Rather, there was one straightforward calculation relevant to the 28 day period.”
[28] [2019] FCCA 2108
A similar finding was made by Nicholas J of the Federal Court in the decision of Ali v Minister for Home Affairs.[29] In that case, the notification letter was also held to be distinguishable from DFQ17 on the basis that it was sent by email, and the information required to calculate the prescribed period of review was contained to two items, being:
a)a 21 calendar day time limit; and
b)the date of the receipt of the email that attached the notification letter.
[29] [2019] FCA 1102
In Ali, Nicholas J noted at [25] that his Honour was bound by DFQ17 and must follow it in so far as it concerns the proper construction of s.66(2)(d) of the Migration Act. His Honour found that DFQ17 “is authority for the proposition that s 66(2)(d)(ii) requires that the relevant information (ie. the time in which the application for review must be made) must be clearly conveyed”. After considering the letter in question, his Honour found at [29] that “a person exercising a reasonable amount of care when reading the letter would understand it to convey that an application for review had to be lodged within 21 calendar days after the date the letter was emailed.” Accordingly, his Honour concluded at [30] that:
[n]one of the complexities that the appellant in DFQ17 faced in determining the time in which an application for review could be made are present in this case. I find that the letter sent to the appellant by email on 21 April 2017 clearly conveyed that an application for review was required to be lodged within 21 days of the date the email was transmitted and that it complied with the relevant requirements of s 66(2)(d) of the Act.
Moreover, in the present case, while the information the applicant required was found over different pages, “letters of this sort must be read as a whole and the mere fact that various pieces of information appear on different pages does not mean that the information is not clearly conveyed”.[30]
[30] ELM18 at [64], citing Ali at [28]-[30]
For these reasons, the Minister submits that the notification letter was of sufficient clarity to have notified the applicant of his review rights and the notification letter complied with s.66(2)(d)(ii) of the Migration Act.[31]
[31] Cf BUY18 v Minister for Immigration [2019] FCCA 1787
The Minister submits that the applicant’s application to the Tribunal was made out of time and the Tribunal did not fall into jurisdictional error in finding that it did not have jurisdiction to review the delegate's decision. Accordingly, this ground cannot be made out.
The issue came before me two days ago in a case called FJR18 v Minister for Home Affairs & Anor.[32] This case is identical with FJR18. In those circumstances, I accept the Minister’s submissions for the same reasons as I gave in FJR18.
[32] [2019] FCCA 2274
There is no substance to the remaining grounds of review advanced by the applicant. I agree with the Minister’s submissions concerning those grounds.
Ground 2
Ground 2 of the application asserts that the Tribunal did not take the applicant’s “situation for consideration”. To the extent that this ground alleges the Tribunal has failed to consider the applicant’s claims, the Tribunal was correct to conclude that it did not have jurisdiction and, for the reasons above, no such error was committed by the Tribunal.
Further, the Tribunal did not fail to complete the exercise of jurisdiction in the sense outlined by Allsop J in Htun v Minister for Immigration[33] at [42]. Ground 2 cannot be made out.
[33] (2001) 194 ALR 244
Ground 3
Ground 3 asserts that it was not “fair” for the Tribunal to conclude that it had no jurisdiction.
Section 422B of the Migration Act provides that Division 4 of Part 7 constitutes an exhaustive statement of the natural justice hearing rule in relation to the review. For the applicant’s assertion to be upheld, the applicant must make out some breach of the provisions of Division 4 of Part 7 of the Migration Act. Ground 3 does not particularise any alleged breach of any provision of Division 4 of Part 7 of the Migration Act.
I accept that no such breach has occurred and this ground cannot be established.
Conclusion
I conclude that the applicant is unable to demonstrate that the decision of the Tribunal 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 $5,600. The applicant asked a number of questions about the effect of the costs order, possible arrangements for payment and his visa status. As I explained to him, those are matters that he could take up with the Minister’s Department in due course.
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 $5,600.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 28 August 2019
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