Patel v Minister for Immigration

[2018] FCCA 2337

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATEL v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2337

Catchwords:
MIGRATION – PRACTICE AND PROCEDURE – Application for summary dismissal of application for judicial review of decision of Administrative Appeals Tribunal that it did not have jurisdiction to review decision because it was made more than 21 days after decision notified to the applicant – whether applicant has no reasonable prospects of succeeding on claim – application for judicial review summarily dismissed.

Legislation:

Acts Interpretation Act 1901 (Cth), s.36(2)

Federal Circuit Court Rules 2001 (Cth), r.13.10(a), Schedule 1, Part 3, Division 1, item 2

Migration Act 1958 (Cth), ss. 66(1), 338, 347, 348(1), 494B, 494C

Migration Regulations 1994 (Cth), regs. 2.16(1), 4.10

Applicant: SUMITRA NILESH PATEL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2716 of 2017

Judgment of: Judge Manousaridis

Hearing date: 8 August 2018

Date of Last Submission: 8 August 2018

Delivered at: Sydney

Delivered on: 8 August 2018

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitors for the First Respondent: Mr A Moss of Clayton Utz

ORDERS

1. The application for review filed on 30 August 2017 is dismissed pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs set in the amount of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2716 of 2017

SUMITRA NILESH PATEL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore – revised from transcript)

1. Before me today is the hearing of an application in a case filed by the first respondent (Minister) seeking an order that the application filed by the applicant in this Court on 30 August 2017 be dismissed.

2. The Minister’s application is brought pursuant to r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules). That paragraph relevantly provides that the Court may order that a proceeding be dismissed generally if the Court is satisfied that the party prosecuting the proceeding has no reasonable prospect of successfully prosecuting the proceeding.

3. The application to which the Minister’s application for dismissal is directed is an application for judicial review of a decision of the second respondent (Tribunal) made on 3 August 2017 that it has no jurisdiction to determine an application for review purportedly made to it on 20 April 2017 in relation to a decision made by a delegate of the Minister on 24 March 2017 not to grant the applicant a Medical Treatment (Visitor) (Class UB) medical treatment (subclass 602) visa (Medical Treatment visa). It will be appropriate if I first set out the relevant background facts.

4. The starting point is the applicant lodging with the Department of Immigration and Border Protection (Department) an application for a Medical Treatment visa. That application was lodged by way of a prescribed form. In that form, next to the words “Do you agree to the department communicating with you by email and/or fax?”, the applicant ticked the box next to the word “Yes” and under the words “Give details” the applicant provided an email address (applicant’s email address).

5. On 24 March 2017 a delegate of the Minister made a decision refusing to grant the applicant a Medical Treatment visa. The ground on which the rejection was based was that the applicant failed to satisfy public interest criteria 3001 in that the application for the Medical Treatment was not made within 28 days after the day when the applicant’s last substantive visa ceased to be in effect. The decision record was attached to a letter dated 24 March 2017. The first page of the letter stated “Transmission method Email sent to”, and then there is set out the applicant’s email address.

6. The applicant, who is not legally represented, accepted before me that she did receive on 24 March 2017 by email, the delegate’s letter. In any event, the Minister relies on an affidavit of Ms Eggleton to prove the fact that the email was sent on 24 March 2017. In broad terms, in that affidavit Ms Eggleton says she is an administrative support officer employed by the Department and she deposes to the Department’s maintaining a document management and dispatch system called “Enterprise Correspondence Service” (ECS). She says that this system allows Departmental officers “to create, draft, send, record, and view correspondence to clients”. Ms Eggleton has annexed to her affidavit a screenshot of information she says she accessed from ECS. That extract, on its face, indicates, and I am satisfied that it proves, that the letter dated 24 March 2017 from the Department to the applicant was sent to the applicant’s email address. That finding is important because it is relevant to determining whether the Tribunal was correct in its decision that it did not have jurisdiction.

7. The next matter to note is that the Tribunal received on 20 April 2017 an application for review of the delegate’s decision of 24 March 2017. On 16 May 2017 the Tribunal sent by way of email a letter to the applicant written by an officer on behalf of the Registrar of the Tribunal. The letter states that the author of the letter was of the view that the applicant’s application was not a valid application because it was not lodged within the relevant time limit, that time limit being 21 calendar days from the day on which the applicant was taken to have been notified of the “primary decision”. The letter further stated that the 21-day period ended on 18 April 2017, but the application to the Tribunal was not received until 20 April 2017. The letter invited the applicant to make any comments on whether a valid application has been made.

8. After seeking and being given further time to make a response, the applicant sent a letter dated 14 June 2017 to the Tribunal responding to the Tribunal’s invitation to comment on whether a valid application to the Tribunal had been made. In that letter the applicant said she is not represented by any solicitor or advisor; that the applicant’s migration matter is very complicated and “we”, by which I understand the applicant must have included herself, her husband and her child, “had a very [complicated] migration history”; and that due to her illness she finds herself in dire circumstances “in which my appeal is now being affected”. The applicant also said that she would provide “further documentary evidence that may be deemed necessary”.

9. On 4 August 2017 the Tribunal by email sent a letter to the applicant, in which it stated that the Tribunal decided it had no jurisdiction to determine the applicant’s application. The letter enclosed a decision record, which is dated 3 August 2017. In that decision record the Tribunal refers to an application having been received by the Tribunal for review of a decision of a delegate of the Minister dated 24 March 2017. The Tribunal, after referring to s.347(1)(b) of the Migration Act 1958 (Cth) (Act) and reg.4.10 of the Migration Regulations 1994 (Cth) (Regulations, stated that the application for review had to be made within 21 days after the applicant was notified of the decision. The Tribunal said that on the material before it the applicant was notified by letter dated 24 March 2017 and despatched by email. After referring to the applicant’s having submitted that she is unrepresented and that her matter is complex, the Tribunal concluded that the applicant is taken to have been notified of the delegate’s decision on 24 March 2017, that the prescribed period within which the review application could be made ended on 18 April 2017, but because the application for review was not received by the Tribunal until 20 April 2017, it followed that the application for review was not made in accordance with the relevant legislation and the Tribunal had no jurisdiction in the matter.

10. The applicant, as I have noted, filed an application in this Court on 30 August 2017. The application contained the following grounds (errors in original):

    1. The Tribunal failed to exercise its jurisdiction: It was error for the Tribunal to assess the application without allowing applicant to present her arguments.

    [2]. The Tribunal fell into jurisdiction error by misinforming itself as to the true nature of the applicant’s evidence and, thereby, incorrectly dealt with the review application.

    [3] The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.

11. I will return later to these grounds.

12. The question that arises on the Minister’s application is whether there is no reasonable prospects of the applicant establishing that the Tribunal was wrong in concluding it had no jurisdiction to consider the applicant’s application for review. Stated another way, the question is whether the applicant has no reasonable prospects of establishing the Tribunal did have jurisdiction to consider the application for review of the delegate’s decision not to grant the Medical Treatment visa.

13. The starting point to answering those questions are provisions in the Act and Regulations dealing with applications for review of decisions made by the Minister refusing to grant visas. The starting point is the nature of the delegate’s decision not to grant the applicant the Medical Treatment visa. That decision is a “Part 5–reviewable decision” as that expression is defined in s.338 of the Act. That means the Tribunal would have come under an obligation to review that decision under s.348(1) of the Act if the application the applicant made to the Tribunal on 20 April 2017 could be said to have been “properly made under” s.347 of the Act.

14. An essential element of an application being “properly made under” s.347 of the Act is the requirement provided for by s.347(1)(b) of the Act, namely, that an application for review of a Part 5-reviewable decision must be made within the “prescribed period”. The period for making an application for review of the class of Part 5-reviewable decision of which the decision of the delegate before me is a member has been prescribed by reg.4.10(1)(a) of the Regulations: it is the period that “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”. The word “receives notice of the decision” directs attention to s.66(1) of the Act, which 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”.

15. Regulation 2.16(1) of the Regulations provides that for the purposes of s.66(1) of the Act, reg.2.16 of the Regulations sets out the way of notifying “a person of a decision to grant or refuse to grant a visa”. Regulation 2.16(3) provides that the Minister “must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act.” One of the methods specified in s.494B is that specified in s.494B(5) of the Act, which permits the Minister to give a document by transmitting it by, among other things, email. Under s.494C(5) of the Act, where a document is given by transmitting the document by email, the document is taken to have been received at the end of the day on which the document is transmitted.

16. I return to the circumstances of the case before me. The applicant was notified of the delegate’s decision by the delegate sending the decision by email to the applicant’s email address. Under s.494C(5) of the Act, the applicant is taken to have been notified of the delegate’s decision at the end of 24 March 2017. That in turn means that the applicant was required to lodge an application for review with the Tribunal 21 days after 24 March 2017. A simple calculation of 21 days after 24 March 2017 results in the last day being 14 April 2017. The Tribunal, however, calculated the last day to be 18 April 2017. The explanation for that is that 14 April 2017 and 17 April 2017 were public holidays. I have not verified that fact, which was stated from the bar table by Mr Moss appearing for the Minister. It has not been submitted by the applicant, however, that the 21-day period ended later than 18 April 2017.

17. The significance of 14 April 2017 and 17 April 2017 being public holidays arises from s.36(2) of the Acts Interpretation Act 1901 (Cth), which provides that if an Act requires or allows a thing to be done, and the last day for doing the thing is a Saturday, a Sunday or a holiday, then the thing may be done on the next day that is not a Saturday, a Sunday or a holiday. Accepting, therefore that 18 April 2017 was the day on which the 21-day period for lodging an application to the Tribunal expired, the applicant did not lodge any application for review by that date but lodged it outside that time period.

18. The Minister submitted that it is beyond argument that the applicant did not lodge her application to the Tribunal within the 21-day period provided for by the Act and the Regulations. I asked the applicant whether she understood the submissions Mr Moss made about these matters, and I also explained to the applicant the requirement that an application to the Tribunal had to be made within 21 days of the applicant having been notified of the delegate’s decision. And I explained to the applicant, the provisions dealing with the notification of decisions by a delegate. The applicant, perhaps understandably, made no submissions in response to either what Mr Moss submitted or in response to the explanation I gave her of what Mr Moss submitted.

19. In my opinion, there is no doubt on the evidence before me that the applicant was notified of the delegate’s decision on 24 March 2017 and that she was required to lodge such application certainly by 18 April 2017 if she were to invoke the Tribunal’s jurisdiction to review the delegate’s decision. She did not do so, with the consequence that the Tribunal did not have jurisdiction to deal with her application for review.

20. I, then, turn to the grounds stated in the application. The first ground can be taken to complain that the Tribunal ought to have exercised its jurisdiction and can be taken to claim that the Tribunal was wrong in concluding it did not have jurisdiction. In my opinion, it is not arguable that the Tribunal was wrong in concluding it did not have jurisdiction, and for that reason, the Tribunal made no error in declining to assess the application that the applicant made to it.

21. Ground 2 seems to claim that the Tribunal failed to take into account or failed to correctly understand the applicant’s evidence and otherwise incorrectly dealt with the application. Again, this can be taken to be a claim that the Tribunal was wrong in concluding it had no jurisdiction, but for reasons which I have already given, it is not arguable that the Tribunal was wrong. I do note, however, that the Tribunal did acknowledge in its reasons, although briefly, the submission the applicant made in her letter dated 30 May 2017.

22. Ground 3 appears to claim that the Tribunal’s decision was based on a satisfaction of matters arrived at not in accordance with the Act. That claim is not arguable because whether or not the Tribunal had jurisdiction was not a matter that was to be determined by the Tribunal’s satisfaction. Whether or not the Tribunal had jurisdiction is a jurisdictional fact which is a fact open for this Court to determine. For reasons that I have given, it is not arguable that the Tribunal did not have jurisdiction.

23. Mr Moss for the Minister made an alternative submission that even if I were not to accept the Minister’s submission that there is no reasonable prospect of the applicant succeeding in establishing the Tribunal had jurisdiction, I should find that the applicant would have no reasonable prospects of succeeding in any event because on the material before me it is beyond argument that the applicant could not satisfy the criteria for the granting of a Medical Treatment visa. Given the conclusions I have arrived at, it is not necessary for me to deal with or consider Mr Moss’s submission further.

24. For these reasons I am of the opinion that the applicant has no reasonable prospect of successfully prosecuting this proceeding because she has no reasonably arguable prospect of establishing that the Tribunal was incorrect in concluding it did not have jurisdiction. It follows therefore, that I propose to make an order in terms of the order the Minister seeks in his application in a case, and I will make that order in a moment.

25. Having indicated what I propose to do in the proceeding, I invited submissions as to costs. Mr Moss for the Minister seeks that I make an order for costs and that I set those costs in the amount of $4,562. Mr Moss quite properly drew my attention to the fact that the amount the Minister seeks is above that which is provided in Part 3 of Schedule 1 to the FCC Rules. The amount prescribed by that part is $3,667. Mr Moss seeks the additional amount on the basis that an additional filing fee had to be paid by the Minister to bring on the application in a case. Mr Moss says the Minister did that based on comments made by other judges of this Court, and I assume that is a reference to what Judge Street said in the case of Jingxin He v Minister for Home Affairs (not published) which is referred to in the affidavit of Mr Moss which I have already read.

26. In my opinion, the fact that the Minister has incurred a filling fee in filing the application in a case is not a factor which should lead me to depart from the scale amount provided for by item 2 of Division 1 of Part 3 of Schedule 1 to the FCC Rules. That item contemplates a matter ending after an interlocutory hearing which in turn contemplates that such interlocutory hearing would be brought before the Court by a party filing an application in a case. In those circumstances, I am satisfied that it is appropriate that I make an order for costs, but that the appropriate amount of costs I should set is the amount provided for by item 2 of Division 1 of Part 3 of Schedule 1 to the FCC Rules, and that amount is $3,667.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date:  22 August 2018