ACS18 v Minister for Home Affairs

1. The application be dismissed.
2. The first and second applicants pay the first respondent's costs of the application as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JAGOT J: 1 This is an application for an extension of time to appeal against orders of the Federal Circuit Court dated 1 June 2018: see ACS18 v Minister for Immigration & Anor [2018] FCCA 1420. 2 In SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] the Full Court said: The factors which the Court should take into account in determining whether to grant an extension of time include whether there is an acceptable explanation for the delay, the length of the delay, the merits of the appeal, and any prejudice to the respondent albeit that the mere absence of prejudice is not sufficient: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 (Wilcox J); SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 at [16]-[25] (Cowdroy J). 3 The respondent conceded it would not suffer prejudice in this case by the delay, which was two months, but I am not satisfied there is an acceptable explanation for the delay in making the application to this Court and I am satisfied there is no merit and could be no merit in the appeal. 4 The relevant background to the application is this. The Federal Circuit Court dismissed an application for judicial review, made under s 476 of the Migration Act 1958 (Cth), of a decision of the Administrative Appeals Tribunal dated 6 December 2017. The Tribunal's decision was that it had no jurisdiction to hear an application for review of a decision, made by a delegate of the Minister on 29 June 2017, to refuse to grant the applicants Protection (Class XA) visas. The basis for the Tribunal's decision was that the prescribed period of time to lodge an application for review had lapsed before the application was made and the Tribunal has no power to waive the prescribed period or consider an application made outside of the period. 5 The legal framework was correctly stated by the respondent as follows: Under s 411(1) of the Act, the delegate's decision refusing to grant the applicants a Protection visa is a Part 7−reviewable decision. Pursuant to s 412(1)(b) of the Act and reg 4.31(2) of the Migration Regulations 1994 (Regulations), an application for review of a Part 7−reviewable decision by the Tribunal must be made within the prescribed period, being 28 days, commencing on the date on which the applicants were notified of the delegate's decision. Regulations 4.31(2) of the Regulations is as follows: (2) For paragraph 412(1)(b) of the Act, if an applicant is not in immigration detention on the day the applicant is notified of a Part 7−reviewable decision, the period in which an application for review of the decision must be given to the Tribunal by or for the applicant is 28 days, commencing on the day the applicant is notified of the decision. (Emphasis added) The date of notification is governed by ss 494B and 494C of the Act. Section 494B outlines the methods by which the applicants are to be given the delegate's decision, which is relevantly as follows: ... Transmission by fax, email or other electronic means (5) Another method consists of the Minister transmitting the document by: (a) fax; or (b) email; or (c) other electronic means; to: (d) the last fax number, email address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents; or (e) if the recipient is a minor - the last fax number, email address or other electronic address, as the case may be, for a carer of the minor that is known by the Minister. Under s 494C(5) of the Act, if the applicants were given the delegate's decision in accordance with s 494B(5) of the Act, they were taken to have received that document at the end of the day on which the document is transmitted. 6 The Tribunal applied this framework. It observed that the applicants received the delegate's decision by an email transmitted to them on 29 June 2017, which the applicants conceded in the Court below, so that by operation of s 494C(5) they must be taken to have received the decision, and thus to have been notified of it, at the end of 29 June 2017. By operation of r 4.31(2) the prescribed period of 28 days commenced on that date. Importantly, there is no definition of "day" prescribed by the regulations to suggest "day" means anything other than an ordinary calendar day. A period of 28 days commencing on 29 June ends on 26 July. The Tribunal found that the prescribed period ended on 26 July. 7 The applicants told the Tribunal they applied to it for review on 27 July 2017 because they counted 28 days based on 24-hour periods starting at the time they received the email, such that the 28th "day" began during 26 July and ended during 27 July. 8 The timing of the period was prescribed by law. It ended on 26 July. The Tribunal was correct in its understanding that it has no independent power prescribed by law to waive this period or to consider an application filed after the period to file a valid application had lapsed: VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 311; (2003) 133 FCR 570 at [33]. 9 Thus, the basis for the Tribunal's decision is sound and its conclusion was correct. The primary judge could not have decided otherwise. It follows that there would be no utility in granting an extension of time because any appeal would be doomed to fail. 10 The applicants' written and oral submissions to this Court, as well as their proposed grounds of appeal, were about the merits of their applications for protection visas and a claim that the delegate failed to consider the requirements of s 5J of the Act in deciding not to grant them protection visas. They did not address the relevant legal issue in the Tribunal's reasons and the primary judgment, which was whether the Tribunal erred in deciding it had no jurisdiction to hear the application for review of the delegate's decision. In addition, the first applicant wrote an affidavit saying he could not pay the filing fees (notwithstanding an exemption may be granted for financial hardship) and he and the second applicant were too busy caring for their children to find legal assistance. At the hearing he said the delay or delays in filing one or more of the applications involved in this case was really his fault. Whether or not that is true, there is no escaping the reality that an appeal against the Tribunal's jurisdictional decision would be doomed to fail. 11 In conclusion, I am not satisfied it is proper to grant the extension of time. The application should be dismissed. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.