CGJ16 v Minister for Immigration and Border Protection

1. The appeal be dismissed with costs, such costs not to include costs of senior counsel for the hearing on 18 September 2018. 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 of a decision of the Administrative Appeals Tribunal (Migration and Refugee Division) in which the Tribunal came to the view that it had no jurisdiction in the matter. The case turns on the prescriptive and clear restrictions on review from a decision of the delegate. It is necessary to explain the history of the matter in order to understand the approach of the Federal Circuit Court. 2 The appellant is a citizen of the People's Republic of China who arrived in May 2015 on a student visa. Not long after arriving, he applied for a protection visa. In that application for that visa, he provided an email address and residential address in Campsie, New South Wales. In July 2015, a delegate of the Minister sent an acknowledgement of the visa application to the Campsie address and, early the following year, the delegate sent an invitation to the Campsie address inviting the appellant to attend an interview for the purpose of assessing his visa application. 3 The appellant attended that interview on 5 April 2016. On 6 April 2016, the delegate refused the visa application. The evidence before the Federal Circuit Court revealed that, on the same day, the delegate sent, by registered post to the Campsie address, the notification of refusal of the visa application. At this point it should be noted that the invitation to the Campsie address for hearing was sent on 24 March 2016, some two weeks or so before the hearing on 5 April 2016 and the decision on 6 April 2016. 4 On 5 May 2016, the appellant notified the Department of Immigration and Border Protection of a new postal address at Denistone East, New South Wales, and on 11 May 2016, six days later, he notified the Department of a new postal address at Lidcombe. By this time, the notification of the refusal decision had been returned to the Department as unclaimed. There is evidence, and the primary judge found, that there was a conversation between the appellant and some member of the Department on or about 11 May 2016. 5 This led to another communication on 12 May 2016 where a copy of the notification dated 6 April 2016 was sent to the new Lidcombe address. Importantly, the form of that letter did not withdraw the notification of 6 April 2016. Rather, the letter noted that the date of initial notification of the delegate's decision was 6 April 2016. It is to be noted that the letter of 6 April 2016, under the heading "Review Rights", stated that: The department cannot consider your visa application any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision. An application for merits review of this refusal decision must be given to the AAT within the prescribed timeframe. This timeframe commences on the day on which you are taken to have been notified of this decision and ends at the end of 28 days. 6 The letter is less than precise as to the operation of the Regulations. Nevertheless, the letter indicates that, from a certain date, there is a 28 day period. The letter then goes on in the following paragraph to say: Please note that this review period is prescribed in law and an application for merits review may not be accepted after that date. 7 Leaving aside any potential ambiguity by the use of the word "may", the letter does indicate that there is an important time period. That perhaps is an understatement. On 22 May 2016 (thus tolerably promptly after actual receipt of the refusal), the appellant applied to the Tribunal to review the delegate's decision. The review application attached various appropriate documents. On 7 June 2016, the Tribunal invited the appellant to comment on the validity of the review application. The letter for the Registrar of the Tribunal stated the following: 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 28 days from the day on which you are taken to have been notified of the primary decision. The primary decision was posted to you on 6 April 2016 and, on the basis that 15 April 2016 was the date on which you are taken to have been notified, the last day for lodging the application for review was 13 May 2016. As the application was not received until 22 May 2016, it appears to be out of time. However, this is a matter which must be determined by a Member. 8 Thus the Tribunal Member was to deal with this issue and the appellant was invited to put submissions. The appellant took that opportunity on 10 June 2016 by sending an email to the author of the letter, thanking her for the email and stating as follows: I didn't receive the letter from immigration department in April. I called them in May and was told the decision about my application, so I asked them to re-post the letter to me, but unfortunately I still didn't receive it. So I have to ask them to post it in the third time to my friend's address, and I finally got it on 16th May. 9 The evidence is not clear as to the second posting, but is clear as to the posting on 12 May 2016. As I have already indicated, there was material before the Court as to the two changes of address, first from Campsie to Denistone East and then to the Lidcombe address. These events and the conversation that occurred, as I will refer in a moment, led me to take some steps at the first hearing of this matter, to which I will come in a moment. 10 On 13 July 2016, the Tribunal made a decision that it did not have jurisdiction to entertain the application and the appellant was notified of that. It is important to understand the basis of the Tribunal's decision. It was not an exercise of any discretion because, under the provisions to which I will come, there was no such discretion. The reasons of the Tribunal are short and, rather than summarising them, I will set them out as an annexure to these reasons. 11 The appellant made an application to the Federal Circuit Court which was for a review of that decision, in effect challenging the approach of the Tribunal as to how it had construed the relevant Act and Regulations as strict. The application was heard on 26 October 2017 and judgment was delivered a week later on 3 November 2017. In a careful judgment, the primary judge examined the evidence underpinning the matter before the Tribunal, identified the grounds of review and then dealt with them. 12 At [15] and following, his Honour correctly identified the application as a Part 7-reviewable decision and examined the relevant provisions of the Migration Act 1958 (Cth), in particular s 412(1)(b) of the Act, which provides that an application for review of a Part 7-reviewable decision must be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision. Under reg 4.31(2) of the Migration Regulations 1994 (Cth), if an applicant is not in immigration detention (as the appellant was not), the period in which the application for review must be made is 28 days, commencing on the day the applicant is taken to be notified of the decision. 13 Under s 66 of the Act, the Minister is to notify the applicant of the decision in the prescribed way. The manner of notification has been prescribed by reg 2.16(3) of the Regulations. This provides that the Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in s 494B of the Act. Section 494B(4) of the Act permits the Minister to notify that applicant by prepaid post and to dispatch the document within three working days of the date of the document. The fact that it can be communicated by other means, such as by email, does not mean that a choice made by the Department to communicate by prepaid post is not valid. 14 From the review of the facts that I have already indicated, the refusal was sent by prepaid post to the last known address and notified to the Department within three days of the making of the decision and of the date of the letter. Thus the relevant timeframe was - unless the notification was formally withdrawn - the timeframe which I have already indicated: 28 days running from 15 April 2016 and ending on 13 May 2016. 15 The primary judge carefully examined the evidence as to the steps and concluded that the chronology that I have identified was accurate. From these matters, the primary judge concluded that the Tribunal was correct to construe the legislation as demanding an answer that there was no jurisdiction. It was not a question of discretion; it was a question of the appellant being taken to have been notified within the timeframe prescribed by the Act by sending the decision to the address he had given to the Department. 16 The notice of appeal from the Federal Circuit Court simply states that the appellant is not satisfied with the order from the Federal Circuit Court. The compass of this complaint is obvious and no point should be made or taken about the lack of clarity in the notice of appeal. The matter came before me on 9 May 2018. I will not set out the transcript in full, but on that day, I discussed with the solicitor for the first respondent, Ms Carr, my concern that there may be something in the facts as to what transpired in the days of 11 May 2018 to 13 May 2018 that may conceivably give rise to some duty upon the Department to deal with the then-applicant in a particular way. 17 My concern arose from my reading of Minister for Immigration and Border Protection v ASE15 [2016] FCAFC 37; 237 FCR 460. That was a decision of the Full Court of this Court: North, Barker and Mortimer JJ. The circumstances were very similar to the appellant's circumstances in this case. There had been a proper sending of the decision record of the delegate refusing the visa to the last known address which was not received by the appellant. The time was about to expire when a conversation took place and there was a further sending of the original notification. The application for review was then made out of time. 18 Importantly for this case, the Full Court made clear that, unless there was a withdrawal of the first notification, such that the on-sending of it could be seen as a completely fresh notification, the original timeframe was not displaced by the events. In that case, the sending of the original notification for the second time was in a similar form as the one sent in this case, and did not withdraw the first notification. The Full Court took the view - and for the same reasons, I take the view following the Full Court - that there was no implied withdrawal. 19 Towards the end of the judgment, the Full Court indicated that there was no factual material upon which they could act that raised a question of a duty in the Department to bring to the attention of the appellant as time was running out the need for the appellant in that case to act with expedition. 20 On the last occasion, the appellant, if I may say so, not surprisingly - and I say that respectfully of him - took the view that someone might have told him something when he spoke with Department staff over the phone on 11 May 2018. That, however, assumes that the person with whom he was speaking was apprised of the importance of the timing. 21 In any event, it was that question which provoked me on 9 May 2018 to make the orders I did, which were to order a referral for pro bono counsel to be appointed, and the supply of the transcript from the hearing of 9 May 2018 to be provided to the counsel and/or solicitor who accepted the appointment. This was to investigate the question of the matters to which the transcript related: that is, the possibility of some duty arising. The matter was adjourned for a period of time to allow pro bono counsel to examine the matter. During the course of the adjournment, pro bono counsel requested an interpreter. Permission was given for that. On or around 28 June 2018, pro bono counsel sought, and was granted, leave to be released from the referral. No further submissions or affidavits have been filed. 22 On the facts as identified by the learned primary judge, I feel compelled to follow the approach of the Full Court in ASE15 when their Honours said the following at [47]-[49]: 47. In a practical sense, any arguable duty owed to the first and second respondents on behalf of the Minister to emphasise, during the telephone call of 4 February 2015, the right to seek merits review and the period within which review rights needed to be exercised by them was satisfied by the actual provision of the 14 January 2015 notification letter on 16 February 2015. 48. In our opinion, on any reasonable reading of the letter … the first and second respondents were notified of the period … 49. In these circumstances, it cannot be said that, if there were any relevant duty on the part of the Minister to accord procedural fairness to the first and second respondents by pointing out the need for them to act with some alacrity, such duty was breached. 23 I do not consider that it can be concluded that there was a breach of procedural fairness or the breach of a duty to explain the operation of the Act and the Regulations in this matter. There is no foundation, in my view, for the construction of that duty from the facts as identified by the primary judge. 24 As I have indicated, on the evidence before the Federal Circuit Court, there was a proper notification and the time to appeal expired on or before 13 May 2016. There was no withdrawal of the first notification and so there was no fresh notification. The operation of the Act and the Regulations is strict. The Department sent the notification to the address provided by the applicant. There was no obligation to provide the notification by email: see the decisions of Minister for Immigration and Border Protection v Kim [2014] FCA 390; 220 FCR 494, Pathania v Minister for Immigration and Border Protection [2015] FCA 1262; 240 FCR 254 and Rahman v Minister for Immigration and Border Protection [2016] FCA 662. 25 That led to only one further issue remaining which was dealt with by the Federal Circuit Court and that is the question of the certificate under s 438 of the Act. The Federal Circuit Court found that the issuing of the invalid s 438 certificate was entirely irrelevant to the Tribunal's consideration as to whether it had jurisdiction and so, for that reason, there was no denial of procedural fairness. That view is supported by the Full Court's decision in Minister for Immigration and Border Protection v CQZ15 (2017) FCAFC 194; 253 FCR 1, which I am bound to follow. 26 In these circumstances, by reason of the operation of the Act and the Regulations, the appeal of the appellant must be dismissed. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.