Monga v Minister for Immigration
[2018] FCCA 1115
•11 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MONGA v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1115 |
| Catchwords: MIGRATION – Application for judicial review of decision of AAT – temporary visa application – removal of employer sponsor – applicant failed to satisfy criterion attaching to visa – delegate of Minister declined visa application – applicant advised of decision and timeframe relating to any merits review in AAT by means of email forwarded to applicant’s nominated email address – time period to institute review proceedings 21 days – applicant made application out of time – applicant advised by AAT that it lacked jurisdiction but sought comment from applicant – power to waive time limit – procedural unfairness – jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.338; 339; 347; 357A; 474; 476; 494 Migration Regulations 1994, r.4.10(1)(d) |
| Cases cited: Craig v South Australia (1995) 184 CLR 163 SZOBI v Minister for Immigration & Citizenship (No.2) (2010) 119 ALD 233 Sainju v Minister for Immigration & Citizenship (2010) 185 FCR 86 Tay v Minister for Immigration & Citizenship (2010) 183 FCR 163 Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 Singh v Minister for Immigration & Border Protection [2015] FCA 220 ZXIE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 SZIUK v Minister for Immigration & Citizenship [2007] FCA 226 Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 Re Minister for Immigration & Multicultural Affairs: Ex parte Lam (2003) 195 ALR 502 |
| Applicant: | AMIT MONGA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 75 of 2017 |
| Judgment of: | Judge Brown |
| Hearing date: | 1 May 2018 |
| Date of Last Submission: | 1 May 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 11 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | Not applicable |
| Counsel for the First Respondent: | Ms Milutinovic |
| Solicitors for the First Respondent: | Sparke Helmore |
| Counsel for the Second Respondent: | Submitting appearance |
ORDERS
The application filed 6 March 2017 be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of five thousand five hundred dollars ($5,500.00).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 75 of 2017
| AMIT MONGA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India, who applied for a Temporary Business Entry (class UC) (subclass 457) visa[1] pursuant to the provision of the Migration Act 1958 (Cth) “the Act” on 15 May 2016.
[1] Hereinafter referred to as “the visa”
The grant of the visa in question is subject to the satisfaction of various criteria provided in subclass 457 of schedule 2 attached to the Migration Regulations 1994.
In the context of the current proceedings, the salient criterion, required to be satisfied by the applicant in this matter, is that he had the nomination of a business sponsor, which had been approved by the Minister for Immigration & Border Protection.[2] In his application, which was filed off-shore, the applicant nominated, as his business sponsor, JSD Australia Pty Ltd.
[2] As the Minister for Home Affairs was formerly known hereinafter referred to as “the Minister”
In addition, in his application, as required, the applicant provided his contact details to the Department. These details included a postal address, in Musswellbrook, New South Wales, as well as an email address, which he indicated was [email protected].
This email address was entered under the following statement on the pro forma application:
“Communicating with you
We can communicate about the application more quickly using e‑mail and/or fax. Do you agree to this department communicating with you via e-mail and/or fax?
Under this statement and above the aforementioned email address has been entered the word “Yes”[3]. I am satisfied that it is axiomatic that the answer to the question can only referrable to the email address provided on the form.
[3] See casebook at 3
On 6 September 2016, a delegate of the Minister wrote to Mr Monga, via the email address nominated by him. He was informed that his prospective employer, JSD Australia Pty Ltd, did not have an approved nomination for him.
As a consequence, he was advised that his visa application was “unlikely to be successful”. In addition, he was advised that it was open to him to provide comment, to the Department in respect of this information, which was clearly adverse to his visa application.[4]
[4] See casebook at 66
I have been provided with evidence which indicates that the departmental letter, dated 6 September 2016, was sent to the email address nominated by the applicant. He did not respond to the invitation directed to him to provide comment, on the information regarding the failure of his prospective employer to be approved, as required by clause 457.223(4)(a).
On 13 October 2016, a delegate of the Minister declined to grant the applicant the visa in question. The delegate was not satisfied that the applicant met the prescribed criteria for the grant of the visa because he was not the subject of an approved nomination, at the time of decision.
In a covering letter, enclosed with the decision of the delegate, which was also sent by email to the applicant’s nominated email address, was the following statement:
“The Department cannot consider your visa application any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for merits review of this decision.
An application for 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. This review period is prescribed in law and an application for merits review cannot be accepted after that date.”[5]
[5] See casebook at 71
It is the first respondent’s submission that this letter and the information which it contained was properly dispatched to Mr Monga, who is deemed to have received it pursuant to the applicable legislative regime, arising under the Act. The information applicable to these proceedings was the time limit attaching to the instigation of review proceedings in the AAT of 21 calendar days.
In support of this submission, the first respondent relies on an affidavit of Natalia Milutinovic,[6] to which is attached what is known as a screen shot. This was obtained from the computer database of the Department of Home Affairs.[7] The screen shot indicates the dispatch of the email, to the applicant, at 9:14:26, to the nominated email address of the applicant.
[6] See affidavit of Natalia Milutinovic filed 19 April 2018
[7] As the Department of Immigration & Border Protection is now known
The applicant lodged an application for review of this decision, by electronic means, on 10 November 2016, which was clearly more than 21 calendar days after the dispatch of the decision letter to him.
The application contained different correspondence details to that provided in his original visa application, particularly in respect of his email address. In his oral submissions to the court, the applicant indicated that the former email address was his employer’s email address rather than his.
Section 347(1) of the Act provides that any application, for review of a decision of the department, by the AAT, must be made within the period prescribed by regulation.
There is no doubt that what follows in sub-clause (b) of the section can only be described as somewhat convoluted and impenetrable. It is invokes various other sections of the Act, which prescribe applicable time limits. The applicable section would appear to be section 338(9).
As a consequence, the decision, in this matter, is to be described as a Part 5 Reviewable Decision, as it is amenable to review by the AAT [see section 339(9)]. As such pursuant to regulation 4.10(1)(d) of the Migration Regulations 1994 (Cth), the period in which an application for review of such a decision:
“- starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received.”
On 30 January 2017, the AAT wrote to the applicant informing him that the applicable time limit for a review application is 21 days, as outlined above. In these circumstances, the letter advised as follows:
“As the application was not reached until 10 November 2016, it appears to be out of time. However, this is a matter which must be determined by a Member.”[8]
[8] See casebook at 84
Notwithstanding this view, on 30 January 2017, the AAT informed Mr Monga via his email address, that he could make any comments regarding the validity of his application, which would be referred on to the ultimate decision maker, who is a member of the AAT.
There can be no doubt that the applicant received this letter as he wrote to the AAT indicating that he had been “under the assumption the usual timeframe for this application is 28 days, not 21 days.”
In addition, he advised that his mother had been unwell, in India, where she had been hospitalised. In these circumstances, he had been both stressed and distracted. Circumstances which had also been exacerbated by his recent relationship separation.
In all these circumstances, he requested that the AAT give him a further chance by which I take it he was seeking a waiver of the time limit applicable to his application. He supplied a medical certificate, which confirmed his mother incapacity in India.[9]
[9] See casebook at 86-89
On 22 February 2017, the AAT determined that it did not have jurisdiction in the matter. It provided the following reasons in support of this decision:
“The review application was lodged with the Tribunal on 10 November 2016. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.
Pursuant to s.347(1)(b) of the Act and r.4.10 of the Migration Regulations 1994 (the Regulations) an application for review of this decision had to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements.
The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 13 October 2016 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.”[10]
[10] See casebook at 92
Although the AAT had invited submissions from the applicant in respect of the time limit issue, the AAT concluded that it had no discretion to extend time, notwithstanding the applicant’s difficult personal circumstances at the time, which it acknowledged in its decision.
In these circumstances, the Tribunal found as follows:
“The Tribunal has had regard to the submissions made by the applicant. However, the Tribunal does not have any discretion to accept an application for review lodged outside the prescribed period, even in cases where extenuating circumstances may exist.
The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 13 October 2016. Therefore the prescribed period within which the review application could be made ended on 3 November 2016. As the application for review was not received by the Tribunal until 10 November 2016 it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.”[11]
[11] Ibid at 92
As a consequence of this decision, the applicant commenced proceedings in this court seeking an order quashing the decision of the AAT on 22 February 2017. The applicant does not appear to have had legal advice, in respect of this application, which sets out two grounds of appeal, namely:
“Department refuse my 457 visa application and I lodge AAT appeal for review of my application. On 30th of jan AAT sent me invitation regarding my application.
On 13th Feb I submitted the submission with related documents to AAT but on 22nd feb AAT sent me refusal letter without any hearing so I believe there is jurisdiction error because I must got hearing call from AAT before final decision I am apply for federal Court to get fare Decision.”
The applicant’s affidavit, filed in support of this application, has simply repeated these grounds of review and attached the relevant decision; the letter enclosing that decision, which was sent to the applicant; and the pro forma information about AAT decisions. It is this application which is currently before the court for its determination.
The legal principles applicable
Pursuant to section 476(1) of the Act, the Federal Circuit Court has “the same original jurisdiction in relation to migration decisions as the High court under section 75(v) of the Constitution.
This provision of the Constitution grants original jurisdiction, to the High Court, in matters of mandamus against any officer of the Commonwealth. In his application, the applicant seeks that such a writ issue to the AAT, after its decision has been quashed and it be thereafter directed to re-hear their application according to law.
However, pursuant to section 476(2), the Federal Circuit Court has no jurisdiction in relation to what are categorised as privative clause decisions. This expression is defined in section 474(2) as meaning a decision of an administrative character made under the Act. The decision relevant to these proceedings is such a privative clause decision.
Pursuant to section 474(1) privative clause decisions are deemed to be final and conclusive and as such, not capable of being subject to challenge in court or to the issue of any constitutional writ, which is the remedy sought by the applicants.
However, the High Court has held that the provisions of section 476 do not prevent the review of decisions, made by the Tribunal, which are affected by jurisdictional error; have been made in bad faith; or in denial of natural justice.
In general terms, an administrative Tribunal exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[12]
[12] See Craig v South Australia (1995) 184 CLR 163
It is important to note that, in exercising its jurisdiction under section 476(1) of the Act, the court is not authorised to conduct a merits review of the hearing in question or to substitute its own findings of fact for those of the Tribunal.
Discussion
Although the application is lacking in particulars, in my view, it is centred on two major issues, which can be summarised as follows:
·The procedural significance, if any, of the adverse information letter of 30 January 2017, which invited comment from the applicant, which was subsequently regarded as being otiose given the time limitation issue;
·Jurisdictional consequences, if any, of the AAT not having regard to the applicant's submissions regarding the extenuating circumstances surrounding his failure to file his application for review within the prescribed period.
These extenuating circumstances are as follows:
·The illness of his mother;
·His mistaken belief the time frame was twenty eight days rather than twenty one;
·His relationship breakdown; and
·The circumstance advanced in his oral submissions to this court that the email address provided in support of his application was his prospective employer’s email rather than his.
Related to these issues are questions relating to whether the AAT had jurisdiction to find that the applicant had been properly notified of the 21 day period pursuant to the letter sent to his nominated email address on 13 October 2016.
In this context, it should be noted that the applicant has not taken up the opportunity to file and serve any amended application and to make any formal submissions. In many ways, his oral submissions to the court, on his review application, were an inchoate appeal to allow his visa application or at least give him more time to pursue a review application in the AAT.
Pursuant to section 66 of the Act, when the Minister refuses to grant a visa to any applicant issuable under the Act, the Minister is required to notify that applicant of the decision arising in the prescribed way. It is the Minister’s contention that the evidence available to the AAT indicates that Mr Monga was informed of the delegate’s decision, regarding his visa application, and more particularly was informed of the applicable timeframe to lodge a review application, in the manner prescribed by the applicable regulations.
I accept that the evidence available before the AAT indicated that the applicant had agreed to receive notifications and correspondence from the Department, in an electronic fashion, via the email address nominated by him.
In these circumstances, the Department was entitled to forward its decision to the applicant in the manner in which it did. This notification also included the salient information that any review of the decision must have been undertaken, with the AAT, within 21 calendar days after the date on which the applicant was taken to have received this letter.
The intent of this letter was to engage the provisions of sections 494B and 494C of the Act. These sections prescribe the methods by which the Minister and by necessary implication any of his delegates may dispatch a document to an applicant under the Act and more significantly when such an applicant is taken to have received such a document.
In this case, pursuant to section 494B(5) the Minister can give a document to an applicant by fax, email or other electronic means by:
“the last fax number, email address or other electronic address, as the case may be provided to the Minister for the purpose of receiving documents;”[13]
[13] See section 494B(5)(d)
As previously indicated, the only email address provided to the Department, by the applicant, is the address which he has subsequently indicated was that of his prospective employer, rather than the one he has subsequently utilised in proceedings before the AAT.
Section 494C(5) provides that a person is taken to have received a document given to him or her by fax, email or other electronic means at the end of the day on which the document is transmitted.
As was observed by Stone & Jagot JJ in SZOBI v Minister for Immigration & Citizenship (No.2)[14] provisions such as those contained in section 494B & 494C are not to do with the receipt of documents by an applicant concerned but are concerned solely with mechanisms for dispatch and the establishment of dispatch.
[14] See SZOBI v Minister for Immigration & Citizenship (No.2) (2010) 119 ALD 233 at [18]
Accordingly, if dispatch is established, by virtue of provisions such as section 494C, receipt is deemed by the person, who is the intended recipient of the relevant document. As a consequence, the Tribunal is not required to satisfy itself that the intended recipient has indeed received the relevant notification letter.
In addition, as a consequence of such deeming provisions, it will not affect the exercise of the jurisdiction concerned, if the applicant concerned later contends that he or she did not in fact physically receive the notification in question.
Jacobson J considered the application of analogous deeming provisions, created by regulations made under the Act, in Sainju v Minister for Immigration & Citizenship.[15] He said as follows:
[15] Sainju v Minister for Immigration & Citizenship (2010) 185 FCR 86 at [51] – [53] [55] –[56] & [58]
“What seems to me to be decisive is that each of the deeming provisions focuses upon the physical act of the Minister in giving the document to the person, rather than whether the document is actually received.
The underlying assumption in each of the deeming provisions is that the act taken by the Minister is sufficient to bring the document to the attention of the person, regardless of whether this has actually occurred.
Thus, when a document is handed to the person, it is assumed that the person will open the envelope and read it, regardless of whether he or she actually does. Also, when a document is handed to another person at the addressee’s residence or place of business, it is assumed that the other person will give it to the named person. So too, it is assumed that the postal system will work in the ordinary way and that the addressee will receive the document within the time stated.
…
It may be that in an unusual case there will be unfairness because the assumption which underlies the deeming provision is not fulfilled. The other person may not hand the document to the addressee, the postal system may produce inordinate delay or the email may be lost for a period of time in cyberspace. Perhaps the document will never find its way to the addressee.
But the authorities dealing with deeming provisions in relation to non-electronic communications make it clear that the effect of those provisions is not to create a rebuttable presumption of fact. They are not to be read as if they were subject to a proviso that the person is not taken to have received the document if the contrary is proved.
…
The purpose of provisions such as these is to achieve administrative certainty as to whether a document has been given to a person, and as to the time at which this has occurred. It affects time limits for review of administrative decisions and may, in some instances, foreclose that possibility. (citations removed)
Section 494C is part of a statutory scheme to provide a regime for the clear determination of when the receipt of specified documents relating to migration decisions occurs. This aim is reflected in the relevant Explanatory Memorandum, to which Jacobson J referred in Sainju.[16]
[16] Ibid at 95
The Full Court of the Federal Court took a similar view in Tay v Minister for Immigration & Citizenship.[17] This case was concerned, as is this one, with section 494C(5), the deeming provision applicable to the dispatch of documents by electronic means. In Tay the Full Court was expressly called upon to consider the validity of an earlier decision Xie v Minister for Immigration & Multicultural & Indigenous Affairs,[18] which dealt with section 494C(4).
[17] Tay v Minister for Immigration & Citizenship (2010) 183 FCR 163
[18] Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172
This is the section which deals with the provision of documents by prepaid post and when such documents are deemed to have been received. In Xie Spender J indicated that there was nothing in section 494C(4) to indicate that its operation was subject by any implied condition in terms of until the contrary is proved.
In Tay, the Full Court said as follows:
…we have concluded that the decision in Xie is not wrong nor does it produce unintended or irrational consequences. The construction of s 494C(4) in Xie and the consequent rigidity of time limits imposed on applications for review may seem harsh but, as the explanatory material referred to below indicates, they result from the considered decision of the legislature as to an appropriate way to facilitate visa applications and to clarify when documents are received. In so far as is presently relevant, the provisions of s 494C(4) and s 494C(5) are identical and therefore the reasoning of the Full Court in Xie is equally applicable to both subsections.
I consider that I am bound by the decision in Tay, the effect of which is to hold that section 494C(5) does not create a rebuttable presumption of fact. Rather the section makes very detailed provision for determining when a document is taken to have been received, by its designated recipient, from the Minister.
The next issue arising is whether, in all the circumstances, the first respondent has demonstrated the dispatch of the letter of 13 October 2016. In this regard, it relies on screenshot, annexed to Ms Milutinovic’s affidavit of 19 April 2018 to establish that it did indeed dispatch the correspondence in question, by email, to the applicant’s electronic address, at 9:14:26 on 13 October 2016 and therefore he is taken to have received the delegate’s decision at the conclusion of that date, pursuant to the provisions of section 494C(5) of the Act.
The applicant has not objected to the contents of Ms Milutinovic’s affidavit, on which the first respondent relies to establish Mr Monga was notified of the applicable timeframe for seeking review in the AAT of the decision to refuse his visa application. Ms Milutinovic is not employed by the Department. As such, she has no direct knowledge of the technical aspects of the Department’s email system and its related databases. In her affidavit, Ms Milutinovic deposed as follows:
“On 15 June 2017, an officer of the first respondent sent an email to the solicitors for the first respondent attaching screenshots from the Department of Home Affairs (formerly known as the Department of Immigration & Border Protection) (the Department) computer database ‘Enterprise Correspondence System’.”[19]
[19] See affidavit of Natalia Milutinovic dated 19 April 2018
The screenshot in question,[20] is a technical document. Ms Milutinovic is not qualified to interpret it and, as she has deposed, relies on what she has been told by relevant officers of the Minister. Mr Monga has not sought to argue the point. In addition, he does not assert that he did not receive the document at all. Axiomatically, he responded to it by commencing the proceedings.
[20] See casebook at 69-70
Issues of this kind were discussed by Perry J in Singh v Minister for Immigration & Border Protection.[21] In the case, Her Honour said as follows, in respect of when there was sufficient evidence to establish dispatch:
“… it would be preferable for such evidence in the future to be annexed to an affidavit by a deponent with relevant knowledge who can explain the printout, how it was generated, and verify the facts evidenced by the printout. The care required in interpreting the technical evidence provided by a stand-alone computer printout, as demonstrated by these reasons, highlights the importance of this, particularly where the individual is unrepresented, does not speak English as his or her language and may have no background in interpreting such documents.”[22]
[21] See Singh v Minister for Immigration & Border Protection [2015] FCA 220
[22] Ibid at [55]
However, in the case before her, Perry J did accept that, what she described as a computer printout, did prove notification under section 66 of the Act. In this context, she noted that the AAT, as a consequence of section 353 of the Act was not to be bound by technicalities, legal forms or rules of evidence. In addition, Her Honour relied on section 161 of the Evidence Act 1995 (Cth), which creates a rebuttable presumption regarding the sending of electronic communications.
In all these circumstances, I am satisfied that the AAT had clear jurisdiction to find that the applicant had been properly notified of the delegate’s decision to refuse his visa and had also been informed of the applicable timeframe to seek a review of the decision concerned.
In ZXIE v Minister for Immigration & Multicultural & Indigenous Affairs[23] the Full Court observed the difficulty arising from section 347 of the Act, which might cause even a reasonably careful reader to conclude (wrongly) that an application for review must be filed within 28 days from notification of the decision.
[23] See ZXIE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 at [4]
However, I am satisfied that the AAT did not have any discretion to waive the applicable timeframe provided. Regardless of the difficulty of its interpretation, section 347(1) and the regulations to which it refers fix the periods in which part 5 reviewable decisions are to be made.
In SZIUK v Minister for Immigration & Citizenship[24] Tracey J held as follows:
“The Tribunal did not have power to enlarge time or jurisdiction to entertain the application: see section 412(1)(b) of the Act and regulation 4.31(2) of the Migration Regulations 1994 (Cth).”
Again, I am bound by the determination of the Federal Court.
[24] See SZIUK v Minister for Immigration & Citizenship [2007] FCA 226 at 12
The final issue remaining turns on the consequences of the AAT’s letter, to Mr Monga, of 30 January 2017. One possible interpretation, of this letter, is that it was inviting submissions from the applicant in respect of a possible extension of time to file his review application.
In these circumstances, given that the Tribunal did not have this power, it might be said to be unfair to Mr Monga that he was given the impression that the Tribunal did in fact have this authority, by the letter in question. After all, what could have been the point for asking for comments on whether the application in question was valid, if the Tribunal itself had no jurisdiction to extend time.
The Tribunal is bound by the provisions of section 357A of the Act, which provides that the applicable statutory provisions, contained in Part 5, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule. As I have indicated above, the Tribunal did not have any authority to waive the timeframe applicable to the applicant in this case.
Accordingly, this is not a case, which is analogous to that prevailing in Minister for Immigration & Border Protection v Singh[25] in which the Full Court held that a statutorily based power to adjourn proceedings had to be exercised by the Tribunal in a legally reasonable way. By the expression legally unreasonable it is meant the power is not to be exercised in a manner which would be open to being perceived, by a court in its review function, as being capricious or without some form of intelligible justification.
[25] See Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
This characterisation refers to the exercise of power within jurisdiction. In this particular case, the Tribunal did not have jurisdiction to extend time. Accordingly, in my view, the decision to not entertain the review application was not legally unreasonable, in the sense that it lacked some form of coherent logic. The letter sent to him may have raised an unrealisable expectation on Mr Monga’s part but, in my view, that was not legally unreasonable per se, given the applicable statutory framework.
In any event, the applicant was given a reasonable opportunity to deal with matters adverse to his interest which the relevant decision maker (the AAT member) proposed to take into account in exercising its power. Although in the context of the current matter, the matters raised by the applicant, as to why time should be extended, were to all intents and purposes otiose, he was nonetheless given an opportunity to comment, albeit that that opportunity was inevitably bound to be fruitless.
The fact remains that the regulatory framework stipulated a timeframe for the bringing of applications for review. In my view, it would be illogical if the Tribunal was to be criticised for bringing this information to the attention of an applicant concerned, prior to its exercise of jurisdiction for comment, on the basis that it had no obligation to do so.
In my view, this is a case where there has been no practical injustice accorded to the applicant by reason of the fact that he was asked to comment upon the timeframe issue. In Re Minister for Immigration & Multicultural Affairs: Ex parte Lam[26], Gleeson CJ said as follows in respect of the concept of the practical injustice:
“Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”
[26] See Re Minister for Immigration & Multicultural Affairs: Ex parte Lam (2003) 195 ALR 502 at [37]
In this case, pursuant to section 359A, the Tribunal provide information to the applicant regarding the timeframe issue. In my view, it cannot be criticised for doing so, even if it is arguable that it had no obligation to do so. In these circumstances, in my view, there has been no practical injustice accorded to the applicant by reason of the fact that he has provided comment on why time should be extended, in his case, in circumstances where the Tribunal had no jurisdiction to do so.
It must follow from these reasons, that the application herein should be dismissed as the applicant has established no error in the reasoning of the Tribunal regarding its conclusion that it had no jurisdiction to entertain his application for review.
The first respondent seeks costs in the sum of $5,500.00 which is less than the amount allowable under the applicable schedule to the court’s rules. I will make an order to this effect.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 11 May 2018
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