AKU15 v Minister for Immigration and Border Protection

1. The application be dismissed.
2. The applicant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Revised from transcript 1 The applicant is aggrieved by a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant him a protection visa. The power to grant visas of any kind is vested in the Minister by the Migration Act 1958 (Cth), although it may be delegated by an instrument in writing (s 496). The Minister (or his delegate) may only grant a visa if satisfied that the criteria set out in the Act and Regulations have been met. Otherwise the application must be refused. The Act provides for a system of merits review to be undertaken by the Administrative Appeals Tribunal (formerly the Refugee Review Tribunal) and lays down a procedure for the making of such applications. Under the procedure an application must be filed within the time prescribed by the Regulations. In this case, the applicant filed an application for review by the Tribunal but did not do so within the prescribed period and the Tribunal determined that it did not have jurisdiction to hear it. 2 The Tribunal noted that it had received a written submission stating that the applicant was sent an email notifying him of the decision on 10 January 2015 but did not receive it until he was contacted by the Department on 18 January 2015 at which time he sought an appointment with his representative. The Tribunal recorded that the submission stated that the applicant was distraught and alone in Australia, estranged from his wife and child, and "undergoing severe depression due to all the problems he [was] facing currently …". But the Tribunal said that, unless the application is lodged within the prescribed period, it has no discretion to take into account any compelling or compassionate circumstances that might have led to the late lodgement of the application. 3 The applicant applied to the Federal Circuit Court for judicial review of that decision but his application was dismissed under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) ("FCCR") when he failed to appear at the hearing. He later applied to have the application reinstated but the primary judge dismissed his application, in effect on the ground that it would be futile to accede to it. 4 The applicant wishes to appeal from the judgment of the Federal Circuit Court, but the judgment is interlocutory, which means that he requires the leave of the Court to do so: Federal Court of Australia Act 1976 (Cth) ("FCA Act"), s 24(1A). Unless the court from which leave to appeal is sought fixes a different period, any application for leave to appeal must be filed within 14 days of the date on which the judgment appealed from is pronounced or the order made: Federal Court Rules 2011 (Cth) ("FCR"), r 35.13. The applicant presented at the Registry to file an application some 11 days outside the prescribed period. Consequently, he seeks an extension of time. 5 The grounds of the application were (without alteration): 1. The trial judge erred in considering the irreparable loss of the appellant due to his real fear of persecution on the basis of the domestic violence. 2. The trial judge erred in considering that the Second Respondent made an error in respect to the procedural matter of the Second Respondent. 3. The trial judge erred in considering that the constructive failure of the Second Respondent in determining the situation of the appellant. 6 The grounds were not particularised and differed somewhat from the grounds of appeal in the draft notice of appeal, which are set out below. 7 In accordance with the requirements imposed by FCR r 35.14, the applicant filed an affidavit in support of his application in which he offered an explanation for the delay. The applicant said: After obtaining the decision from the Federal Circuit, as a layman I thought it is 28 days from the date of the decision and I went to the Federal Court Registry in obtaining relevant form and the Registry provided a number of forms including this affidavit. 8 He urged the Court to take into account the fact that he was unrepresented. 9 The Court has the power to grant an extension of time (FCR r 1.39). The power is not subject to any express constraints but, like all powers conferred by the civil practice and procedure provisions applicable in the Court, it must be exercised in the way that best promotes their overarching purpose, which is the facilitation of "the just resolution of all disputes" "(a) according to law; and (b) as quickly, inexpensively and efficiently as possible": FCA Act, s 37M. In considering whether an extension of time should be granted, the Court will have regard to all relevant considerations including the length of the delay, the explanation for it, any prejudice to the other party, and the merits of the substantive application - here, the proposed grounds of appeal. 10 In the present case, the delay, while not trivial, is not lengthy, and the Minister does not claim to be prejudiced by it. 11 The applicant did not say why he thought he had 28 days in which to approach the Court. I accept that a layperson is unlikely to appreciate the difference between an interlocutory and a final judgment, but the time to appeal from a final judgment is 21, not 28 days (FCR r 36.03). The applicant had 28 days to apply to the Tribunal for review of the Minister's decision (Migration Act, s 412), so it is possible, I suppose, that he believed he had the same period to challenge the judgment of the Federal Circuit Court. In the absence of any evidentiary foundation for the applicant's belief, however, I accept the Minister's submission that the applicant's explanation is inadequate. 12 The biggest hurdle facing the applicant, however, is the merits of the leave application. If the leave application were meritorious, I would not dismiss it merely because of deficiencies in the applicant's explanation for the delay. But the leave application is without merit. 13 As the Full Court explained in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9, ordinarily the Court will not grant leave to appeal unless: (a) the decision below is attended by sufficient doubt to warrant its reconsideration on appeal; and (b) supposing the decision is wrong, substantial injustice would result if leave were refused. 14 It may readily be accepted in this case that, on the assumption the primary judge was wrong, substantial injustice would result. The critical question here is whether the applicant has demonstrated that he has a reasonably arguable case that the decision is attended by sufficient doubt to warrant its reconsideration on appeal. 15 As the decision of the Tribunal and the judgment of the Federal Circuit Court were both founded on the words of the Act and Regulations, it is as well to begin there. 16 At the time of the Tribunal's decision (and the applicant's review application), s 414 of the Act relevantly provided that, if a valid application is made under s 412 for review of an "RRT-reviewable decision", the Tribunal must review the decision. As the primary judge observed, the decision by the delegate, being a decision to refuse to grant a protection visa, was an RRT-reviewable decision: Migration Act, s 411(1)(c). The primary judge held that the question of whether the Tribunal had jurisdiction turned on whether the application was made under s 412 of the Act. If it was, his Honour said, the Tribunal was obliged to review the decision; if not, it had no jurisdiction to do so and it was correct not to. 17 At the time of the Tribunal's decision, s 412 was in the following terms: 412 Application for review by the Refugee Review Tribunal (1) An application for review of an RRT-reviewable decision must: (a) be made in the approved form; and (b) be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and (c) be accompanied by the prescribed fee (if any). (2) … (3) … (4) Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of RRT-reviewable decisions (which may be decisions that relate to non-citizens in a specified place). 18 Regulation 4.31 of the Migration Regulations 1994 (Cth) stated: 4.31 Time for lodgement of application with Tribunal (1) For paragraph 412(1)(b) of the Act, if an applicant is in immigration detention on the day the applicant is notified of an RRT-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 7 working days, commencing on: (a) the day the applicant is notified of the decision; or (b) if that day is not a working day - the first working day after that day. (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 an RRT-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. Note: If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method. 19 Apparently the applicant was not in immigration detention on the day he was notified of the delegate's decision, so reg 4.31(2) applied to him. That meant that he had 28 days commencing on the day he was notified of the decision in which to give the Tribunal any application for review. 20 As the primary judge observed, s 66 of the Act defines the meaning of notification for this purpose. At the time of the Tribunal's decision s 66 relevantly provided: 66 Notification of decision (1) 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. (2) Notification of a decision to refuse an application for a visa must: (a) if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa - specify that criterion; and (b) if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa - specify that provision; and (c) unless subsection (3) applies to the application - give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; 21 For present purposes, subs (3) is irrelevant. 22 Regulation 2.16(3) provides that the Minister must notify the applicant of a decision to refuse to grant a visa by one of the methods specified in s 494B of the Act. 23 According to the Tribunal's decision record, the applicant was notified of the delegate's decision by letter dated 8 January 2015 and that letter was dispatched by post. The Tribunal found that the notification was "in accordance with the statutory requirements". Yet, the application for review was not lodged with the Tribunal until 18 February 2015. The applicant did not take issue with either of these dates. 24 Although the letter is not before this Court, it was before the Tribunal and the court below. The primary judge noted that the letter included the delegate's written reasons for the refusal, which included why the relevant criterion (contained in s 36(2) of the Act) had not been satisfied. As the primary judge observed, s 494B(4) permitted notification by prepaid post. It relevantly provided: (4) Another method consists of the Minister dating the document, and then dispatching it: (a) within 3 working days (in the place of dispatch) of the date of the document; and (b) by prepaid post or by other prepaid means; and (c) to: (i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or (ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents[.] 25 Another method of notification is by email: s 494B(5). 26 The primary judge noted that the letter was dated 8 January 2015 and that postal records from the Minister's Department, which were in evidence, showed that the letter was posted by registered mail on that day. The primary judge also noted that the applicant nominated as an authorised recipient "Home Migration Services Pty Ltd" at the address of "suite 1714 Australia Square Tower, 264 George Street, Sydney". The letter enclosing the notification of the delegate's decision was addressed to that company. 27 The primary judge observed that, by s 494D(2), the Minister is taken to have given a document to the applicant if the Minister gives the document to the authorised recipient. 28 The primary judge also observed that, where (as here) the Minister gives a document to a person by the method described in s 494B(4) and the document was dispatched from and to an Australian address, the person is taken to have received the document "seven working days after the date of the document": Migration Act, s 494C(4). I would add that, where, as also appears to have happened here, the applicant is notified by email, he is taken to have received the document "at the end of the day on which the document is transmitted": s 494C(5). Having regard to the submissions made on his behalf to the Tribunal, that day was 10 January 2015. 29 The primary judge did not consider the email notification. His Honour's decision was based on the assumption that notification had taken place only by prepaid post. He calculated that the effect of the provisions relating to notification by that method is that the applicant is taken to have received the letter notifying him of the delegate's decision on 19 January 2015, so that the application for review should have been lodged by 16 February 2015. Consequently his Honour determined that the application was not lodged in time and so was not an application made in accordance with s 412 of the Act. His Honour said that in these circumstances he could see "no reasonable argument to suggest that the Tribunal in fact had jurisdiction and was wrong to refuse to review the decision". He noted that the Tribunal had given the applicant the opportunity to address the question of its jurisdiction and had had regard to what was said on his behalf. Accordingly, his Honour said that he could see no reasonable argument that the Tribunal had failed to observe the requirements of procedural fairness in connection with its decision. He concluded that there was "no material argument available to the applicant that might reasonably lead to the making of an order different to the order [the applicant wished to have the court set aside]" and so dismissed his application. 30 There is no reason to doubt the correctness of the primary judge's decision. 31 Section 36 of the Acts Interpretation Act 1901 (Cth) relevantly provides that if a period of time is expressed to begin on a specified day, then the period of time includes that day, and if it is expressed to begin after a specified day, then the period of time does not include that day. The letter was dated and posted on 8 January 2015. That was a Thursday. The seventh working day after that day was 19 January 2015. 28 days thereafter, including 19 January, was 15 February 2015. The Tribunal was in error in saying that the application had to be made within 28 days after the applicant was notified of the delegate's decision. The primary judge correctly referred to the period as commencing on the date of the notification. Both the primary judge and the Tribunal considered that the prescribed period ended on 16 February 2015. That was correct. That is because 15 February 2015 was a Sunday and, by s 36(2) of the Acts Interpretation Act, if an Act requires a thing to be done and the last date for doing it is a Saturday, Sunday or holiday, then the thing may be done on the next working day. In other words, if the prescribed period expires on a weekend or a holiday it is extended to expire on the first working day thereafter. 32 The draft notice of appeal contains three grounds. They are difficult to understand and were not supported by written submissions which might have cast some light on their intended meaning. They read as follows: 1. The Second Respondent made an error based not agreed that the appellant's adviser failed to submit this in time. 2. The trial judge erred in considering the totality of the case and constructive failure of the Second Respondent. 3. The appellant was failed to attain the natural justice and the trial judge erred in taking into consideration. 33 The first ground appears to plead that the Tribunal erred because the applicant's migration agent failed to lodge the review application in time. In other words, the applicant alleges that the fault did not lie with him but with his agent. The applicant confirmed as much at the hearing and he made a submission to the same effect in the court below. The primary judge rejected it as a basis for impugning the Tribunal's decision - and rightly so. As his Honour put it, even if the applicant were right to blame his agent, that does not affect the question of jurisdiction. Whether or not the Tribunal had jurisdiction turns on "an analysis of the requirements of the Act and the Regulations and the facts before the Court", by which I take his Honour to have been referring to the evidence as to notification. 34 The second ground is meaningless in the absence of particulars. At the hearing I asked the applicant what he meant by it. He indicated that the error to which he was referring was in not considering the merits of his application for review in the Tribunal. But the Tribunal could only consider the review application if it had jurisdiction to do so and the primary judge was only concerned with the question of jurisdiction. 35 When I asked the applicant what he meant by the third ground he replied: If somebody had heard me, if they had listened to my problems, probably they would have considered it. 36 He later explained that he meant that he was denied natural justice because his application to the Tribunal was never considered on its merits. 37 To the extent that the third ground might suggest that the primary judge erred in finding that the applicant had been accorded procedural fairness, I cannot accept that that finding gives rise to any arguable error. No question of bias, actual or apprehended was raised and, on the question determined against him - the question of jurisdiction - as the primary judge observed, the Tribunal invited the applicant to make submissions and took into account what was said on his behalf. 38 The Tribunal's jurisdiction could only be enlivened upon receipt of a valid application under s 412. Section 414(1) of the Act provides, and provided at the relevant time, that, subject to subs (2), which is irrelevant for present purposes, "if a valid application is made under section 412 for review of an RRT-reviewable decision, the Tribunal must review the decision". There is no provision for an extension of time. It may well seem harsh that where, as here, the application was lodged a mere two days outside the prescribed period there is no discretion to undertake the review. But that is the effect of the law, as interpreted in this Court. 39 In Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407 the Full Court unanimously affirmed the correctness of a long line of single judge decisions that the Tribunal has no jurisdiction to embark upon a review under s 414 if the review application does not comply with s 412(1)(b). Heerey J held at [31] that "ss 412 and 414 clearly stipulate that the making of an application within the prescribed time is an essential preliminary to the exercise of the RRT's function". His Honour observed at [21]-[22]: 21 [W]hen no provision is made in the Act in relation to RRT reviews for any extension of time the likely conclusion is that this was a deliberate choice by Parliament rather than inadvertence or unawareness that provisions of this kind could be made. 22 This construction of the Act is consistent with its revealed policy that visa applications be dealt with fairly, efficiently and quickly (Pt 2 Div 3 Subdivision AB). Consistent with this policy are provisions designed to avoid arguments as to whether the Department or the applicant in fact received communications (ss 52, 53). There are therefore rational reasons why Parliament would want to make a review application period non-extendable, notwithstanding that one can hypothesise that this might cause hardship in individual cases on applicants who are without fault… There is moreover a mitigatory provision in s 48B which, admittedly in very special circumstances, allows the Minister to permit a further application for a protection visa. 40 Similarly, at [44] Finkelstein J held that "the purpose and object of the legislation requires the conclusion that an application for review lodged beyond the prescribed period is of no effect". At [52] his Honour described as "without foundation" a contention that the Tribunal had a discretion whether or not to consider a late application. Dowsett J, the third member of the bench, agreed with both Heerey and Finkelstein JJ. 41 Fernando has been distinguished from time to time, but the approach it took was affirmed by another Full Court in VEAN v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570 at [33] (Gray, Whitlam and Mansfield JJ) and its authority has not been questioned since. Recently, in SZULH v Minister for Immigration and Border Protection [2015] FCA 835 Robertson J dismissed an application for an extension of time and leave to appeal based on these authorities. In that case, the application for review should have been filed by 10 March 2014 but the applicant claimed (and the primary judge accepted) that he had not received the delegate's letter until 10 days later, by which time the period in which to appeal had lapsed. 42 In this case, in contrast to the position in SZQVV v Minister for Immigration and Citizenship [2012] FCA 871, no question of third party fraud was raised (see SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189). There is nothing to suggest that the applicant complained to the Tribunal or the primary judge that his migration agent had behaved dishonestly. Negligence is not enough to justify setting aside the Tribunal's decision: SZQVV v Minister for Immigration and Citizenship [2012] FCA 1471 at [29]. 43 For these reasons the proposed appeal is hopeless. In these circumstances, it would not be in the interests of justice, nor would it promote the overarching purpose of the Court's civil practice and procedure provisions, for the Court to extend the time to file an application for leave to appeal. Accordingly, the application filed on 26 September 2016 must be dismissed. Costs should follow the event. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.