AFJ16 v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The Appellant is to pay the costs of the first Respondent to be taxed in the absence of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WHITE J: 1 This is an appeal against the dismissal by the Federal Circuit Court (the FCC) of an application for judicial review. 2 The appellant, a national of India, arrived in Australia on 5 February 2009 on a Student visa. He sought a further Student visa in May 2011 but that was refused by the Minister's delegate. That led to proceedings in the Migration Review Tribunal and in the FCC which were concluded adversely to the appellant on 18 October 2013. 3 The appellant then applied, on 20 March 2014, for a protection visa, but this was refused by a delegate of the Minister on 4 August 2015. The notification of the rejection of the application which the delegate sent to the appellant at his nominated address was returned to the department with markings on the envelope to the effect that the appellant was no longer at that address. This meant that the appellant was not informed of the refusal of his application for a protection visa until 6 October 2015 when he telephoned the Department. 4 Two weeks later, on 20 October 2015, the appellant lodged an application for review in the Administrative Appeals Tribunal (the Tribunal). In an accompanying letter, he recognised that he was outside the 28 day period fixed for the lodgement of such applications, explained that he had not received the written decision of the delegate and asked the Tribunal "to please consider my late submission". The appellant went on to say that the Department had not posted their decision to the new address which he had provided to it. 5 In its decision on 25 January 2016, the Tribunal concluded that, because the application had been filed outside the 28 day period fixed by s 412(1)(b) of the Migration Act 1958 (Cth), it had no jurisdiction to review the delegate's decision. 6 The appellant then applied (on 3 February 2016) to the FCC for judicial review of the Tribunal decision, pursuant to s 476 of the Migration Act. He did not have legal representation. The handwritten grounds in the application for review were as follows: 1. I have not got letter for [hearing]. 2. I missed that. 3. Tribunal got wrong address. 4. Have not got decision letter [from] Department of Border Protection. 7 On or about 29 February 2016, the appellant was detained in immigration detention presumably pursuant to s 189 of the Migration Act because he was then an unlawful non-citizen. Nevertheless, the appellant was able to appear at a directions hearing in the FCC held on 11 March 2016. At that hearing, his application for judicial review was listed for hearing on 29 August 2016, but this was later changed to 12 October 2016. 8 However, the appellant did not appear in person or by representative at that hearing. That was because he had, on 4 April 2016, requested the Department to be removed from Australia and the Department had acted on that request on 15 April 2016. It, or at least its officers, were bound to do so pursuant to s 198(1) of the Migration Act. 9 The appellant's written request for removal included an acknowledgement by him that any outstanding applications, including his application to the FCC, may be dismissed on his removal from Australia. He also acknowledged that his removal from Australia may affect any future re-entry rights he may have. 10 The appellant participated in the hearing in the FCC on 12 October 2016 by telephone from India. The FCC dismissed the application: AFJ16 v Minister for Immigration [2016] FCCA 3034. The judge gave two principal reasons: (a) the appellant had been notified on 4 August 2015 of the delegate's decision in the manner required by the Migration Act, with the consequence that his application to the Tribunal had not been made within the prescribed 28 day period, and it had not been open to the Tribunal to extend that time. Accordingly, the Tribunal had been correct to find that it did not have jurisdiction, at [13]; (b) the appellant's absence from Australia meant that he could not satisfy one of the essential requirements for a protection visa prescribed by s 36(2) of the Migration Act, namely, presence in Australia. Although it was conceivable that the appellant may be permitted to return to Australia at some stage, authorities of this Court indicated that his application to the FCC may be moot, at [16]. 11 The appellant's Notice of Appeal to this Court contains the following grounds: (a) Please restudy my matter. (b) Choice me to back in Australia (sic). Grounds expressed in those terms did not identify any error by the FCC of a kind which would warrant this Court's intervention on appeal. 12 Under the heading "Orders sought", the appellant included the following: (a) To re-study my matter and allow to me back . (b) I request to Federal Court give me lawyer and other opinion. 13 The appellant did not appear at the hearing of the appeal. Given that he is now resident in India, it is understandable that he did not appear in person. The appellant had been encouraged by Court staff to obtain legal representation, but he has not done so, nor did he provide the Court with any written submission. He did, however, file two affidavits and I have considered it appropriate to have regard to them. 14 It is apparent from the affidavits and from the Notice of Appeal that the appellant does not have a good facility with the English language. That makes it difficult to summarise the contents of the affidavits. On my understanding, the appellant raises the following matters: (a) the Department had not provided him with legal advice in connection with his application for a protection visa nor in relation to his request to be removed from Australia; (b) a departmental officer had misled him into thinking that he would be able to come back to Australia to attend the hearing in the FCC; (c) he had spent some eight years in Australia including expending substantial sums in connection with his (apparently incomplete) studies, resulting in considerable difficulties for him; (d) the circumstances in India upon which he relied for his protection visa still exist. 15 The appellant's first affidavit concluded with the following: So I request Federal Court behalf of his good self he will take this matter again in front of immigration and allow to me back (sic) in Australia again as soon as possible. I request Federal Court will discuss my affidavit with immigration and help me to deal with immigration to get me back in Australia and remove his ban. 16 Again, these matters do not, on their face, indicate any error by the FCC of the kind which may warrant intervention of this Court on appeal. The Department was not required to provide the appellant with legal advice and he had expressly acknowledged in his request to be removed from Australia the effect which that voluntary removal may have on his action in the FCC. 17 It is also well established that this Court does not, on appeals of the present kind, conduct a form of merits review, any more than does the FCC at first instance. The function of the FCC, and in turn this Court on appeal, is confined to the question of whether the decision of the Tribunal is affected by jurisdictional error. The appellant's Notice of Appeal and his affidavits do not appear to reflect an understanding by him that that was the role of the FCC. 18 The Minister submitted that the Court should regard the appeal itself as being moot, given the appellant's absence from Australia without any realistic prospect of him being able to return in the proximate future. 19 In Tchoylak v Minister for Immigration and Multicultural Affairs [2001] FCA 872; (2001) 111 FCR 302, the Full Court held that the fact that the applicant for the protection visa in that case was no longer in Australia, and had no realistic prospect of being permitted to return in the future, rendered his appeal moot. Essentially, that was because the appeal would be futile having regard to the criterion in s 36(2) of the Migration Act that an applicant for a protection visa be a non-citizen in Australia. Similarly, in SZSPI v Minister for Immigration and Border Protection [2014] FCAFC 140; (2014) 233 FCR 279, the Full Court dismissed an application for an extension of time in which to appeal against a decision of the FCC on the basis that the then absence from Australia of the applicant for a protection visa made his application moot, at [48]. Hill J adopted a similar approach in Bolea v Minister for Immigration and Multicultural Affairs [2001] FCA 1129, at [13]. In NBAD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 388 at [3], Gyles J, in analogous circumstances, declined to regard the application as moot because he was not satisfied that there was no possibility of the applicant in that matter returning to Australia for the purposes of the case. 20 Tchoylak and SZSPI may be distinguished from the present case because the removal from Australia of the applicant in each of those cases had been involuntary. Nevertheless, I consider that I should apply the approach adopted in Tchoylak and SZSPI. The appellant's removal from Australia was at his own request. It followed his acknowledgements that his application for judicial review may be dismissed once he was removed, and that the removal may affect his re-entry rights. There is no evidence that, despite the appellant's statements of a wish to return to Australia, he has made any application for the grant of a visa. Accordingly, it cannot be known at this stage whether he will satisfy the criteria for any visa for which he applies. That means, in my view, that there is considerable uncertainty as to whether the appellant will ever return to Australia. 21 I conclude that the appeal is moot because, even if it is allowed, the decision of the FCC set aside and the matter remitted to the Tribunal for further consideration, it (the Tribunal) would then be bound to dismiss the application given the inability of the appellant to satisfy the criterion of being present in Australia. 22 In those circumstances, I consider that the appeal should be dismissed. 23 That conclusion makes it unnecessary to consider whether the Tribunal and the FCC Judge were correct in understanding that it was not possible for the Tribunal to extend the 28 day period in which the appellant should have commenced his application to the Tribunal. It is true that the former Refugee Review Tribunal lacked such a power (SZNZL v Minister for Immigration and Citizenship [2010] FCA 621; (2010) 186 FCR 271, at [41]), but it is arguable that the general power of the Tribunal to extend the time for the making of an application conferred by s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) can be exercised in relation to applications of the kind brought by the appellant. It is preferable that the Court not express a concluded view about that until it has had full argument on both sides. 24 The order of the Court is that the appeal be dismissed. The appellant is to pay the costs of the first respondent, to be taxed in the absence of agreement. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.