SINGH v Minister for Immigration

[2016] FCCA 3060

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3060

Catchwords:
MIGRATION – Application for judicial review – applicant having 2 days in which to file application with Administrative Appeals Tribunal – applicant faxing application within time but application not received – application re-filed out of time – Tribunal correct to dismiss application – applicant able to make further application in any event.

Legislation:

Migration Act 1958 (Cth), ss.347(1)(b), 494C, 74

Migration Regulations 1994, r.4.10

Applicant: GURBIR SINGH

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 157 of 2016

Judgment of: Judge Burchardt

Hearing date: 14 October 2016

Date of Last Submission: 14 October 2016

Delivered at: Dandenong

Delivered on: 5 December 2016

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondent: Mr McDonald

Solicitors for the Respondent: The Australian Government Solicitor

ORDERS

1. The application filed on 16 May 2016 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

No. DG 157 of 2016

GURBIR SINGH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By an application filed on 16 May 2016 the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal dated 11 May 2016.  The Tribunal determined that it did not have jurisdiction in the matter.  The application in the ultimate raises a short point.

2. In the grounds of application set out in the originating application the applicant raises a number of criticisms which are not now pressed.  Relevantly for these purposes, the applicant asserted:

   Tribunal send me invitation letters to provide reasons to prove that I did lodge my application within the limit.  they (sic) put me in a lot of pressure and at the end the decision they made is just no jurisdiction error in this matter.

1. The circumstances of the application are set out in the short reasons for decision of the Tribunal at Court Book (“CB”) 58. The Tribunal noted that an application had been lodged for review of a decision of a delegate, dated 2 May 2016, to refuse to grant a Bridging E (Class WE) visa. The review application was lodged with the Tribunal on 5 May 2016. Pursuant to s.347(1)(b) of the Migration Act 1958 (“the Act”) and r.4.10 of the Migration Regulations 1994, an application for review of the decision had to be made within two working days after the applicant was notified of the decision.

2. The material before the Tribunal indicated that the applicant was notified of the decision by a letter dated 2 May 2016 and dispatched by hand.  The decision noted that on 5 May 2015 the applicant contacted the Tribunal to advise he was in detention and had arranged for his application to be submitted by facsimile on 3 May 2016 and had not received a confirmation letter.  The Tribunal informed the applicant that it had no record of his application and the applicant resent his application on the same day. 

3. On 6 May 2016 the Tribunal received a letter from a detainee officer at the Adelaide Immigration Transit Accommodation.  The officer stated that he had sent a facsimile to the Tribunal on 3 May 2016 and was unsure why the facsimile did not go through.  On 9 May 2016 the Tribunal received a letter from the applicant restating the circumstances that he had asked a detainee officer to fax his application on 3 May 2016.  The applicant said he only learnt it had not been received after he called the Tribunal to ask why he had not received a letter of confirmation.  He stated that he resent his application of 5 May 2016 and received a confirmation letter the same day.

4. The letters of 6 May and 9 May 2016 were sent to the Tribunal in response to the Tribunal’s letter dated 6 May 2016 inviting him to comment on the validity of his application for review. The Tribunal went on to find that the applicant was taken in accordance with s.494C of the Act to have been notified of the decision on 2 May 2016. A prescribed period in which the application could be made ended on 4 May 2016. The application having been received on 5 May 2016, it was plain that the application was out of the time and there was no jurisdiction for the Tribunal to entertain it.

5. The applicant, who did not file any further material after his originating application, accepts in his oral submissions – at least implicitly – that he had to lodge his application by 4 May 2015.  When the matter was before the Court he indicated that he made his application while being in the detention centre in Adelaide.  Another application was made at the same time and was sent on 3 May 2016.  The applicant was told by the relevant officer at the centre that both were sent together.  The applicant described calling on 5 May 2015 and being told the other application had been received but his had not. 

6. The applicant asked why if the other one had been received his had not been. The officer confirmed that he had sent it.  The applicant said that it was not his fault if the application was not received.  The applicant referred to an affidavit of Grant Nicholas, affirmed 14 October 2016, which was served late but which I gave the applicant an opportunity to study.  The applicant expressly did not wish to cross-examine Mr Nicholas.  The purport of Mr Nicholas’ highly technical affidavit – he is the Assistant Director of Operations of the Information Technology section of the Tribunal – is that it can be said with some certainty that the applicant’s application was not received on 3 May 2016.

7. The applicant surmised that the officer who sent the applications might have mixed them up. Counsel for the first respondent conceded that if the applicant had genuinely made an attempt to fax his application then the way the Act operated could be extremely harsh. The applicant was, however, applying for a bridging visa and, pursuant to s.74 of the Act, the harsh operation of the Act is ameliorated by the fact that the applicant is now, the 30-day waiting period having expired, entitled to make a further application.

8. Counsel took the Court to CB52 - 53 and CB45.  At CB52 - 53 it is noted that the SERCO officer sent his fax at the same time as that of another applicant but no confirmation was provided to the applicant.  The record, which was entered on 10 May 2016, plainly supports the proposition that the applicant’s application was not received on 3 May 2015.  The extract at CB45 is perhaps more illuminating.  It is a record made on 6 May 2016 and records a conversation with Ms Lorraine Evans, Communications Hub Supervisor. 

9. Ms Evans had checked the MRD fax mailboxes and no fax from the applicant was received on 3 May 2016, although a 27-page fax was received at 3.26 pm for another applicant.  The file note records a conversation with Mr Michael Newman in IT who provided a report of the faxes received on 3 May 2016.  He confirmed that it appeared that one 27-page fax with “caller ID anonymous” was received at 3.26 pm on that day.  The report indicated that the line was broken for this fax and that page 27 was cut off two-thirds of the way down the page.  Mr Newman stated that the line probably dropped out towards the end of the last page, which is why it is noted that the line was broken, even though the 27 pages were received successfully. 

10. That 27-page fax apparently matches the one described by Ms Evans for another applicant.  In my view, on the materials as they stand, it seems far more probable than otherwise that the officer put both the applicant’s application and the 27-page application for the other applicant into the fax machine but that for whatever reason the line went down at the end of the other application and that of the applicant was not transmitted.  In any event, the affidavit of Mr Nicholas is, in my view, decisive.  The application, albeit it that it was sought to be sent on 3 May 2015 simply was not received. 

11. The application was ultimately sent and received on 5 May 2015. It appears to be common cause in the circumstances that the application was out of time and it is therefore clear that this decision of the Tribunal was correct. It therefore follows that the application must be dismissed with costs. Nonetheless, as counsel for the first respondent very fairly pointed out, it remains open to the applicant to make a further application and it is to be trusted that the otherwise harsh operation of the Act will be dissipated as a result.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 5 December 2016