Tran v Minister for Immigration
[2018] FCCA 1918
•27 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TRAN v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1918 |
| Catchwords: MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – where application to Tribunal was filed out of time – where Tribunal found it did not have jurisdiction – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.66, 338, 347 Migration Regulations 1994 (Cth), reg.4.10. |
| Cases cited: Craig v South Australia (1995) 184 CLR 163 Ibrahim v Minister for Immigration and Citizenship [2009] FCA 1328 SZULH v Minister for Immigration and Border Protection [2015] FCA 835 |
| Applicant: | HUYEN TRANG TRAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 766 of 2017 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 27 June 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 27 June 2018 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitor acting as Counsel for the First Respondent: | Mr Blusztein |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 766 of 2017
| HUYEN TRANG TRAN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited Ex Tempore Reasons)
Before the Court is an application filed 13 April 2017 for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 27 March 2017. The Tribunal determined that it did not have jurisdiction to consider the application before it because the Applicant did not apply to the Tribunal within the timeframe prescribed by the Migration Act 1958 (Cth) (‘the Act’). The Applicant had sought review by the Tribunal of a decision made by a delegate of the First Respondent on 20 January 2017.
The grounds of application are as follows:-
“1. The Decision of the AAT is affected by jurisdictional error
Particulars
The AAT has erred in its conclusion that it lacked jurisdiction, as there is ample evidence to show that the application was sent by registered mail on 7 February 2017, three days before the time limit.”
By orders made by Registrar Luxton, by consent, on 25 October 2017, each of the parties was required to file and serve written submissions. The First Respondent’s written submissions are before the Court and were filed on 20 December 2017. On the hearing this day, the Applicant handed up submissions in the form of a letter to the Court which sets out that the Applicant lodged her application form for review on 7 February 2017 by registered post at Springvale South. The Applicant noted that:-
“…hopefully would expected to reached to Administration appeals tribunal by the (10th of Jan 2017) the latest.”
The Applicant acknowledges that the Administrative Appeals Tribunal did not receive her application until 13 February 2017. The Applicant submits to the Court:-
“Can you kindly please review my case and reprocess my case was been refused for apply Administration appeals tribunal.
If base on the fact of the late lodgement, I believed the Post office has been delayed the process of my registered post or perhaps the Administration appeals tribunal (AAT), has been overload of work.
At conclusion I kindly request your honor to sincerely review my case and kindly accept my request for further appeal.”
The Court has before it the evidence as contained in the Court Book filed by the First Respondent on 8 November 2017.
The Minister seeks dismissal of the application together with costs. For the reasons which follow, the Court agrees that the application of the Applicant should be dismissed and a costs orders made against the Applicant.
Relevant background
This is as accurately and helpfully set out in the First Respondent’s written submissions which I adopt hereafter.
“2.1 On 14 May 2015, the applicant, a citizen of Vietnam, applied for a Partner (Temporary) (class UK) (subclass 820) visa and a Partner Residence (Class BS) (subclass 801) visa based on her relationship with [her sponsor].
2.2 In the application form, the Applicant agreed to the Department contacting her by email and provided the email address … for this purpose.
2.3 By email dated 6 December 2016 the Applicant informed the Department that she was in the process of obtaining certain documents that the Department had requested. That email was sent from the [email address provided by the Applicant to the Department].
2.4 On 20 January 2017 a delegate of the Minister refused the applicant’s application for a subclass 820 visa (Visa) because the delegate was not satisfied, pursuant to subclause 820.211(2)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) that the applicant was the spouse or de facto partner of her sponsor.
2.5 On the same date, the applicant was notified of the delegate’s decision by email (attaching a letter of the same date enclosing the delegate’s decision) sent to the Gmail address. The letter stated: “[a]n application for merits 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.”
2.6 The applicant claims to have sent her review application to the Tribunal by registered post on 7 February 2017.
2.7 On 13 February 2017, the Tribunal received the review application.
2.8 By letter dated 22 February 2017 and sent to the Gmail address, the Tribunal invited the applicant to comment on the validity of her application. The letter relevantly stated:
I am of the view that your application is not a valid application as it was not lodged within the relevant time limit. The time limit is 21 days from the day on which you are taken to have been notified of the primary decision. The primary decision was emailed to you on 20 January 2017 and, on the basis that 20 January 2017 was the date on which you are taken to have been notified, the last date for lodging the application for review was 10 February 2017. As the application was not received until 13 February 2017, it appears to be out of time. However, this is a matter which must be determined by a member.
If you wish to make any comments on whether a valid application has been made you are invited to do so, in writing, by 8 March 2017…
2.9 On 28 February 2017, the applicant provided to the Tribunal by hand a letter requesting that the Tribunal consider her application, notwithstanding it being filed out of time. In the letter the Applicant stated that she:
(a) accidentally lodged the review application 3 days late;
(b)thought the “register post” would take one day to reach the registry in Melbourne but it turned out to take 4-5 days;
(c)posted an application for review on 7 February 2017 at the “Springvale South office” and the mail only reached “the office” on 13 February 2017, which was 3 days late; and
(d)overlooked the time limit of review (i.e. mistakenly believed the time limit for lodging the application for review was 28 days rather than 21 days).”
On 27 March 2017, the Tribunal determined that it did not have jurisdiction to review the Applicant’s application. In reaching its decision, the Tribunal, in its Statement of Decision and Reasons (‘the Decision Record’):-
a)found that the Applicant was required by s.347(1)(b) of the Act and reg.4.10 of the Regulations to apply for review within 21 days after the day on which she was notified of the delegate’s decision;[1]
b)considered the Applicant’s submissions, the registered post receipt and tracking document, and found that:-
i)the Applicant sent the application for review by registered post on 7 February 2017;
ii)the post item was in transit on 13 February 2017; and
iii)the Tribunal received the application on 13 February 2017;[2]
c)found that pursuant to reg.2.55 of the Regulations, the Applicant was notified of the delegate’s decision on 20 January 2017 and the prescribed period therefore expired on 10 February 2017;[3] and
d)found that the Tribunal did not have jurisdiction in the matter.
[1] Decision Record, paragraph 3.
[2] Decision Record, paragraph 6.
[3] Decision Record, paragraph 8.
Consideration
The Applicant is self-represented. The Applicant submitted to the Court that she wished to remain in Australia and to be able to appear again before the Tribunal to essentially convince the Tribunal that she and her sponsor were in the necessary relationship of spousal de facto partners. The Applicant submitted that the Tribunal had taken her application fee and that she was of the view that signified her application was proceeding. In fact, at page 251 of the Court Book is correspondence from the Tribunal to the Applicant of 14 February 2017 wherein the Tribunal acknowledges receipt of the Applicant’s application for review in relation to a decision to refuse to grant a Partner (Temporary) (Class UK) visa (‘the visa’) on 13 February 2017. The Tribunal’s correspondence further states:-
“Please find enclosed a receipt of the application fee.
Please note that the validity of your application has not yet been assessed. We can only review a decision if a valid application for review has been made. You will be advised if it appears that your application may not be valid.
…”
Thereafter by correspondence of 28 March 2017 from the Tribunal to the Applicant, being the notification of decision to refuse to grant the Applicant the visa, the Tribunal noted relevantly as follows:
“We have decided that we have no jurisdiction to determine your application. This means that we cannot review the decision of the delegate of the Minister for Immigration and Border Protection. The $1673 review application fee will also be refunded. Please note that important information about receiving your refund is provided in the attached information sheet under the heading ‘Refund of application fee’
…”.
The Applicant confirmed this day that she had, in fact, received the refund of the application fee.
It is well established that a review application received outside the prescribed time limit is invalid and one that the Tribunal does not have jurisdiction to review.[4]
[4] SZULH v Minister for Immigration and Border Protection (2015) FCA 835, 17.
The Applicant conceded that her application was lodged outside the relevant time period but nevertheless set out as a ground of review that the Tribunal had fallen into jurisdictional error by finding that it lacked jurisdiction because the application was sent by the Applicant within the time limit. As submitted by the Minister, that ground of review is misconceived. The Tribunal’s jurisdiction depends on the date on which the application was lodged with the Tribunal, and not the date on which the Applicant sent the relevant application.
The Tribunal applied the correct law in determining that the Applicant’s application for review was not made within the time prescribed by the Migration Act 1958 (Cth) (‘the Act’) and the Migration Regulations 1994 (Cth) (‘the Regulations’). When read together, s.347(1)(b)(i) of the Act and reg.4.10(1)(b) of the Regulations provide that an application for review of a Part 5 of the Act reviewable decision covered by s.338(3) of the Act must be made by the end of seven working days after the day on which notice of the decision is received. That requirement was correctly identified by the Decision Record and applied.
The Applicant was deemed to have been notified of the delegate’s decision on 20 January 2017 because, on that date, the Department sent an email to the last email address provided by the Applicant to the Department, attaching a letter dated 20 January 2017 that enclosed the delegate’s decision record. The Department’s letter of 20 January 2017 complied with the requirements of s.66(2) of the Act because, as submitted by the First Respondent, it:-
a)specified the criterion and provisions of the Act for the refusal of the visa;
b)gave written reasons why the criterion was not satisfied; and
c)specified:
i)that the decision could be reviewed;
ii)the timeframe in which the Applicant had to lodge the review;
iii)that the Applicant could make the review; and
iv)where the application for review could be made.
The review application needed to be lodged with the Tribunal by 10 February 2017 for it to be validly made. This did not occur. It was not so lodged until 13 February 2017.
The Tribunal did not have jurisdiction and correctly determined that it did not have jurisdiction.
The First Respondent notes, as a model litigant, that the Tribunal’s decision incorrectly referred to reg.2.55(5) of the Regulations but submitted that such error was not material to the decision. The Court accepts that submission. The decision of the Tribunal was not “based on the error”.[5]
[5] Ibrahim v Minister for Immigration and Citizenship [2009] FCA 1328, 12; Craig v South Australia [1995] 184 CLR 163, 177.
The application is without merit and must be dismissed. A costs order shall be made in respect of that dismissal.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 13 July 2018
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