Al Titi v Minister for Immigration and Border Protection

1. The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ALLSOP CJ: 1 This is an appeal from orders made by a judge of the Federal Circuit Court of Australia, dismissing an application for judicial review against a decision of the Administrative Appeals Tribunal, in its Migration and Refugee division. The appellant was the applicant in the Tribunal, seeking review of a decision of a delegate of the Minister in June 2015 to refuse to grant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth). The current appeal and the application before the Circuit Court derives from the strict provisions as to time for lodgement of applications for review in the Tribunal. The learned primary judge clearly explained those time provisions. 2 Under s 347 of the Act, there are provisions made for applications for review of Part 5 reviewable decisions, of which this is one. When one reads s 347(1), one would be forgiven for concluding that the review must be filed within 28 days. The section reads as follows: An application for review…must…be made in the approved form; and…given to the Tribunal within the prescribed period, being a period ending not later than…28 days after the notification of the decision… 3 However, by s 347(5), provision is made for the regulations to specify different periods to different classes of decisions. Regulation 4.10(1)(a) provides that an application for review of a decision of the delegate must be lodged within 21 days after notification to the applicant of the decision, in accordance with the statutory requirements. Thus, reading the sections together, s 347 provides for an outer limit of 28 days, but there is capacity for the regulations to identify a shorter period. This difficulty was first referred to in Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172. The end result of this is that r 4.10(1)(a) prescribes a period of 21 days after the date on which the notice is received. 4 Section 494C provides for receipt of the delegate's decision when provided by electronic means. The reasons of the delegate were so provided by electronic means to an email address that had been provided by the appellant. Pursuant to s 494C, the reasons were deemed to have been received on the day they were sent. The unsatisfactory result is that the appellant was one day out of time. The Tribunal's jurisdiction to hear the review is entirely statutory. Its decision made on 7 October 2015 was simply that it had no statutory jurisdiction because of the late filing of the review application. It did not descend into the merits of the review, concluding as it did that it had no authority to do so. The learned primary judge in the Circuit Court concluded that there was no legal error in the conclusion of the Tribunal that it had no authority to undertake a review. 5 There seems to be no substantive debate about that now. The appellant's submissions, perhaps understandably, point out the degree of unfairness in this. 6 The appellant contended before the primary judge that he had been told by the Department of Immigration and Border Protection (now part of the Department of Home Affairs), presumably on the telephone, that he had 28 days to apply for review. That assertion was also made to the Tribunal which was not satisfied on the evidence before it that that had occurred. Even if it had, it did not provide a ground for the Tribunal exercising statutory authority which it did not have. 7 I should add, in amelioration of the position of the Department, the letter of the Department dated 19 June 2015 tolerably clearly stated on the first page that an application for review of the decision could be made to the then-Migration Review Tribunal (whose jurisdiction was taken over by the Administrative Appeals Tribunal) and that an application must be given to the Tribunal within 21 calendar days after the day on which you are taken to have received this letter. The balance of the submissions of the appellant complain as to the serious error made in his application by the Department. The primary judge is not shown to have made any error at all in the legal analysis of the statutory provisions limiting the Tribunal's jurisdiction to review applications filed within time. 8 For that reason, it is necessary to dismiss the appeal. The fact that there is no capacity in the Tribunal to extend time for cases such as this that are filed almost within time is something that, in my view, should be looked at. Common fairness would indicate that a properly controlled extension of time provision would not be a difficult matter to administer, and Mr Al Titi might well think that the way his application has had to be dealt with is a triumph of form over substance. 9 There has been no error demonstrated in the explanation of the position of the Tribunal by the primary judge. 10 I do not think that the exercise of discretion as to costs in this case should be other than the usual order. It would, perhaps, be wrong of me to express my view as to the justice of the formalism of the application by refusing an order for costs. I will only say that I considered the position but, on reflection, think it not appropriate to amend the long-held view as to the appropriateness of the litigant obtaining its costs upon the successful outcome of this litigation. 11 Therefore, with some reluctance, the order of the Court is that the appeal be dismissed with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.