GLV18 v Minister for Immigration
[2019] FCCA 2525
•9 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GLV18 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2525 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – Tribunal finding it lacked jurisdiction – review application lodged late – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Regulations 1994 (Cth) |
| Cases cited: Ali v Minister for Home Affairs [2019] FCA 1102 |
| Applicant: | GLV18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3489 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 9 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 9 September 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms A Davyskib of Minter Ellison |
INTERLOCUTORY ORDERS
The name of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs”.
The name of the applicant is not to appear on the transcript of today’s proceedings.
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737, 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 3489 of 2018
| GLV18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & 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 13 November 2018. The Tribunal found it did not have jurisdiction in the matter because the applicant’s review application was not lodged within time.
There is an obvious error in the description of the gender of the applicant on the face of the decision.[1] That error seems to flow from what is set out in the visa application reproduced at page 80 of the court book.
[1] Court Book (CB) 105
Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 2 September 2019.
The applicant is a male citizen of Malaysia, who last arrived in Australia on 19 October 2017.[2] On 18 January 2018, the applicant applied for a protection visa.[3]
[2] CB 15, 67
[3] CB 1-30
On 20 September 2018, a delegate of the Minister (delegate) refused to grant the applicant a protection visa.[4] The delegate’s decision was sent to the applicant by email dated 20 September 2018,[5] to the email address provided by the applicant at questions 37 and 38 of his protection visa application.[6]
[4] CB 63-79
[5] CB 62-63
[6] CB 11
On 22 October 2018, the applicant sought review of the delegate’s decision before the Tribunal.[7]
[7] CB 80-81
On 25 October 2018, the Tribunal requested documents from the Minister’s Department to determine its jurisdiction.[8]
[8] CB 86
On 26 October 2018, the Tribunal invited the applicant to comment on the validity of the application.[9] The Tribunal put to the applicant that the application appeared to have been made out of time, and invited the applicant to comment on the validity of the application by 9 November 2018.
[9] CB 95-97
On 3 November 2018, the applicant responded to the Tribunal and apologised for the delay in applying.[10] The applicant stated it “was my big mistake”, and said that he had been following his visa expiry date on “VEVO”. The applicant stated that he had not been aware of the 28 day period for applying for review to the Tribunal.
[10] CB 98
On 14 November 2018, the Tribunal notified the applicant of its decision,[11] dated 13 November 2018,[12] in which it found it had no jurisdiction in the matter.
[11] CB 100-104
[12] CB 105
Tribunal decision
The Tribunal recorded that an application for review of the delegate’s decision had to be made within 28 days commencing on the day of notification: subregulation 4.31(2) of the Migration Regulations 1994 (Cth) (Regulations).[13]
[13] CB 106, at [2]
The Tribunal recorded that the applicant was notified of the delegate’s decision by letter dated 20 September 2018, dispatched by email.[14] The applicant was taken to have been notified of the decision on 20 September 2018,[15] and the prescribed period to apply for review ended on 17 October 2018.[16]
[14] CB 106, at [3]
[15] Section 494C of the Migration Act 1958 (Cth) (Migration Act)
[16] At [8]
The Tribunal recorded that as the application was not received until 22 October 2018,[17] the application was out of time and found that it did not have jurisdiction in the matter.[18]
[17] At [9]
[18] At [10]
The present proceedings
These proceedings began with a show cause application filed on 12 December 2018. The applicant continues to rely upon that application. The grounds in it are:
1.Greatly requesting and begging for apology and pardons to Federal Circuit Court of Australia to review and reinstate my application to administrative appeals tribunal (A.A.T).
2.Review my case on merit basis to A.A.T for second time to reconsider my situation of financially and economically.
3.For the sake of justice, humbly requesting to reinstate my case to A.A.T after reconsidering my situation of economically and literally situation.
(errors in original)
The application is supported by an affidavit filed with it, which I have received as a submission. In addition to the court book filed on 22 February 2019 I have before me as evidence the affidavit of Liam Michael Dennis made on 2 September 2019 to which is annexed a record of email dispatch of a letter from the Minister’s Department notifying the applicant of the decision of the delegate.
There is no substance in the grounds advanced by the applicant. I agree with the Minister’s submissions in relation to those grounds.
The three grounds of review do not articulate or establish jurisdictional error. They are template grounds, and properly understood, ask the Court to remit the matter to the Tribunal for reconsideration. The grounds would fail.
Further, the application contains one ground for an extension of time which states “because I have review of decision in Tribunal previously made on 14/11/2018”. Although this ground is not entirely comprehensible, an extension of time is not required under the Migration Act as the application was filed within the 35 day statutory timeframe.
Thereafter, the Minister’s submissions deal with the question of the time limit on review before the Tribunal and the issue of notification of the delegate’s decision. I also agree with those submissions.
The question of whether the application to the Tribunal was lodged within time is a jurisdictional fact for the Court to determine. For the following reasons, I am satisfied that the Tribunal correctly determined that it did not have jurisdiction to consider the application for review.
The delegate’s decision was a Part 7-reviewable decision, and an application to the Tribunal for review of a Part 7-reviewable decision was required to be given to the Tribunal within the prescribed period, being 28 days commencing on the day the applicant was notified of the decision.[19] Subsection 494B(5) of the Migration Act, when read with s.494C(5), is a deemed receipt provision, such that compliance with those statutory requirements will be sufficient for the correspondence to have been taken to have been received.[20] That is so even if the applicant did not actually receive the correspondence (which is not the case in this matter).
[19] Section 412(1)(b) of the Migration Act and regulation 4.31(2) of the Regulations
[20] SZOBI v Minister for Immigration (No.2) (2010) 119 ALD 233; [2010] FCAFC 151 at [18] per Stone and Jagot JJ
The time period to apply for review to the Tribunal commences when valid notification is given of the delegate’s decision. Subsection 66(1) of the Migration Act requires the Minister to notify an applicant of the refusal to grant a visa “in the prescribed way”, and s.66(2) requires any notification to specify certain matters. Pursuant to s.494C(5) of the Migration Act, the applicant was deemed to have received the delegate’s decision at the end of the day on which the email was transmitted. Further, the application for review had to be lodged within 28 days commencing on the date of notification.
Based on the material before it, the Tribunal found that the applicant was taken to have received the notification of the delegate’s decision on the day it was sent by email on 20 September 2018.[21] The Tribunal correctly determined that the 28 day period commenced on 20 September 2018 and ended on 17 October 2018.[22] Accordingly, the application to the Tribunal lodged on 22 October 2018 was out of time and the Tribunal was correct to determine that it had no jurisdiction in this matter.[23] Further, the Tribunal does not have the power to extend the time for the lodging of a review application.[24]
[21] CB 106, at [4]
[22] CB 106, at [4]; see also Annexure LMD1 to the affidavit of Mr Dennis
[23] Cf. Fernando v Minister for Immigration (2000) 97 FCR 407 at [18] per Heerey J
[24] See Beni v Minister for Immigration [2018] FCAFC 228 per McKerracher, Reeves and Thawley JJ
Further, this matter is distinguishable from the decision of the Full Federal Court in DFQ17 v Minister for Immigration.[25] In DFQ17, Perram J held that, to comply with s.66(2)(d)(ii) of the Migration Act, the notification of the delegate’s decision must set out the time in which an application for review may be made, in a way which is not only complete but also clear.[26] His Honour concluded that the notification letter in DFQ17 failed to clearly convey the information that any review application was required to be made by the relevant date, and was “piecemeal, entirely obscure and essentially incomprehensible”.[27] The letter did not state the matters in s.66(2)(d)(ii), which meant the time in which to seek review had not yet commenced and the Full Federal Court found that the Tribunal had therefore erred in concluding that the review application was out of time, and was consequently incorrect in finding that it had no jurisdiction to entertain the review application.[28]
[25] [2019] FCAFC 64
[26] DFQ17 at [58]; Rares J, at [1], and Farrell J, at [67], agreed with Perram J in relation to this issue.
[27] DFQ17 at [62]
[28] DFQ17 at [62]
The Minister notes that in BUY18 v Minister for Immigration & Anor,[29] Judge Emmett found that notification letters dispatched by email were distinguishable from DFQ17 (where the notification letter was dispatched by post), as an applicant did not need to navigate the various “complexities” in identifying the last date that a review application may be lodged.[30] Her Honour found that by sending the letter by email and stating that the timeframe commenced on the day on which the applicant is taken to be notified, there had been compliance with s.66(2)(d)(ii) of the Migration Act.[31]
[29] [2019] FCCA 1787
[30] BUY18 at [34]
[31] BUY18 at [34]
The notification letter sent to the applicant in this case is not the same letter as was considered in DFQ17, and does not have the same absence of clarity. That is, in particular, because the notification letter in this case more clearly conveyed the information necessary for the applicant to determine when his application for review had to be filed (contrast DFQ17 at [60] and [62]). The notification of the delegate’s decision did not contain the same “complexities” as the one considered in DFQ17, and expressly stated that the applicant was taken to have received it “at the end of the day it was transmitted”.[32]
[32] Ali v Minister for Home Affairs [2019] FCA 1102 per Nicholas J
I dealt with relevantly identical circumstances recently in FJR18v Minister for Home Affairs & Anor.[33] I provided a copy of those reasons to the applicant and the Minister’s solicitor before I came on the bench. The applicant chose to make no submissions. The Minister’s solicitor adopted my reasons in FJR18. Because this matter is indistinguishable from FJR18, I reach the same conclusion as I did in that case on the issue of notification of the delegate’s decision.
[33] [2019] FCCA 2274
Conclusion
I conclude that the applicant is unable to advance an arguable case of jurisdictional error by the Tribunal. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant indicated he may need time to pay. I will not require payment by any particular time.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 10 September 2019
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