COD17 v Minister for Immigration and Border Protection

2.1 The application for a protection visa and delegate's decision 4 The applicant is a citizen of Malaysia who arrived in Australia on 27 May 2016 on a Student (Temporary) (Class TU) (subclass 572) visa. 5 The applicant applied for a protection visa on 15 September 2016, claiming to fear harm from loan sharks and her former husband. The primary judge found that, in answer to a question on Form C of that application, namely, "Do you agree to the Department communicating with you via fax, email or other electronic means", the applicant ticked the box marked "yes" and provided an email address. 6 On 21 March 2017, the delegate refused to grant the applicant a protection visa. A copy of the delegate's decision was emailed to her at the email address which she had provided.

2.1 The application for review and the Tribunal's decision 7 The applicant applied for review of the delegate's decision by the Tribunal on 25 April 2017. The Tribunal wrote to the applicant by a letter dated 1 May 2017 and advised her of its preliminary view that her application was not valid because it was not lodged within the prescribed 28 day time limit. The letter invited her to provide submissions on the matter by 15 March 2017. The Tribunal recorded in its reasons that the applicant responded by email on 3 May 2017, sending an unsigned statement in which she claimed that she did not receive the Department's decision to receive her application until 25 April 2017 because her "Internet did not work properly, so she seldom checked her emails." She also claimed that she was not invited to an interview with the delegate and was expecting to receive the decision at a post office box which was "one of the reasons she seldom checked emails". She said that she applied for review to the Tribunal as soon as she received the decision. 8 The Tribunal found that it did not have jurisdiction to hear and determine her application for review for the following reasons: 2. … The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 21 March 2017 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. … 5. The Tribunal has carefully considered the applicant submission; however, the information before the Tribunal indicates that the Department sent the notification letter and decision record refusing her application by email to the email account address that she provided to the Minister for the purpose of receiving documents, in accordance with s. 494B(5). In these circumstances, the Tribunal is satisfied that the applicant was correctly notified of the decision in accordance with the statutory requirements, and that the decision notification was effective. 6. The Tribunal finds that in accordance with s. 494C of the Act, the applicant is taken to have been notified of the decision on 21 March 2017. Therefore the prescribed period within which the review application could be made ended on 17 April 2017. As the application for review was not received by the Tribunal until 25 April 2017 it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

2.2 The decision below 9 The applicant filed an application for judicial review in the FCC raising three grounds which may be summarised as follows: (1) the Tribunal unfairly ignored her well-founded fear of persecution in Malaysia, that the loan shark is looking for her, and the real risk that she will suffer significant harm if returned; (2) the Tribunal did not consider whether there was a real risk that she would suffer significant harm, taking issue with the country information relied upon by the Department and with the proposition that she could relocate safely within Malaysia; (3) the Tribunal should have given her the opportunity to "appeal", reiterating that: (a) the Department did not invite her to attend a hearing making it more difficult for her to be notified of the refusal; (b) her Internet did not work properly so she seldom checked her emails and did not see the refusal letter from the Department until 25 April 2017; and (c) she thought that the Department would notify her by post because it was such an important letter and that she checked her post office mailing address regularly. 10 The applicant appeared unrepresented in the FCC with the assistance of an interpreter in Mandarin and English. The applicant confirmed that she had attended a directions hearing before a registrar of the FCC on 14 September 2017 (FCC reasons at [3]). 11 After considering the evidence and the relevant statutory provisions in her carefully reasoned judgment, the primary judge concluded that: 32. While I make no final decision as to whether or not the Tribunal's decision is affected by jurisdictional error, the applicant has not identified any error on the part of the Tribunal that is capable of establishing jurisdictional error and none is apparent on the face of the decision record. The Tribunal referred to the relevant law in affirming the decision under review. 33. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, in the exercise of the Court's discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application filed on 13 June 2017, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.

3.1 Principles governing leave to appeal 12 The applicant requires leave to appeal to this Court because the decision below was interlocutory in nature: see rule 44.12(2) of the FCC Rules and s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act); see also e.g. BSW17 v Minister for Immigration and Border Protection [2018] FCA 141 at [12] (Perry J). 13 The Court has a discretion to grant leave to appeal. Relevant factors to the exercise of that discretion include: whether in all of the circumstances the decision is attended with sufficient doubt to justify its reconsideration on appeal; and whether substantial injustice would result if leave were refused, assuming the decision at first instance to be wrong (Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 (the Court)). As Mortimer J held by analogy in MZABP v Minister for Immigration and Border Protection, the question of whether an appeal would enjoy sufficient prospects of success to justify the grant of leave is approached at a reasonably impressionistic level: [2015] FCA 1391; (2015) 242 FCR 585 (MZABP (FCA)) at [62]-[63]. The approach of Mortimer J in MZABP (FCA) in this respect was endorsed on appeal in MZABP v Minister for Immigration and Border Protection (No 2) [2016] FCAFC 138 at [38] (the Court)).

3.2 Should leave to appeal be granted? 14 The draft notice of appeal accompanying the application for leave, sets out the following proposed grounds: 1. The Department of Immigration and AAT did not offer me the opportunity of interview, which is required by the law. DIBP didn't invite me to attend the hearing. They refused my application without hearing. DIBP should give me opportunity to attend the hearing. 2. AAT refused my application since I didn't lodged the application on time. But I believe that AAT should give me the opportunity to appeal to AAT. Firstly, I lodged the application to DIBP in 9/2016. I don't know the time frame for processing my application. I have been waiting more than a half year. My Internet didn't work properly, so I seldom check my emails. I didn't see the refusal letter from DIBP until 25/4/2017. Secondly reading the letter, we can know that DIBP didn't invite me to attend the hearing. They refused my application without hearing, which makes it more difficult for me to be notified for the refusal. Finally, I check my mailing address, PO Box [xxx], regularly, until now I haven't received the refusal letter from DIBP by post. I thought they will notify me by post, since such an important letter shouldn't be sent by email. That's one of the reasons I seldom checked my emails. 3. AAT has bias against me as I was deprived of the benefits of doubts. 4. AAT has denied me procedural fairness but failing to provide adequate reasons for the finding of fact. (errors in the original) 15 As the Minister submits, none of the grounds cast sufficient doubt on the correctness of the FCC decision to justify a grant of leave to appeal. Furthermore, the third and fourth grounds raise issues which were not raised in the Court below. As a result, the applicant would require leave of the Court to rely upon those further grounds: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]-[48] (the Court). 16 First, as the Minister submits, proposed Ground 1 is misconceived and has no prospects of success. While the Minister (and therefore his delegate) has a discretion to invite an applicant to an interview, there is no obligation to do so: see s 56(1) of the Act. Further and in any event, neither this Court nor the FCC has jurisdiction to review the decision of the delegate: see ss 476 and 476A of the Act. While the Tribunal could have invited the applicant to make submissions on the question of jurisdiction at a hearing, it was not required to do so. The Tribunal is only required to invite an applicant to a hearing under s 425 of the Act in relation to a review of a delegate's decision and therefore where the Tribunal has jurisdiction to undertake the review. 17 Proposed Ground 2 also lacks any reasonable prospects of success. As the Tribunal found, the applicant had 28 days within which to apply for review of the delegate's decision after she was taken to be notified of the decision in accordance with the statutory requirements: s 412(1)(b) of the Act and reg 4.31 of the Migration Regulations 1994 (Cth) (the Regulations). Section 412(1)(b) provides that an application for review of a decision refusing to grant a protection visa "must: … (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…" Regulation 4.31 of the Regulations, in turn, provides that where, as here, the applicant is not in immigration detention, the period within which an application for review must be given to the Tribunal for the purposes of s 412(1)(b) of the Act is 28 days commencing on the day that the applicant is notified of the decision. A note to reg 4.31 states that: 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. 18 Section 494B sets out different methods by which the Minister may give documents to a person. These methods include by email to the last email address given to the Minister for the purpose of receiving documents (s 494B(5)). Where the Minister gives a document to a person by email in accordance with this section, s 494C(5) of the Act provides that "the person is taken to have received the document at the end of the day on which the document is transmitted." As such, where a document is transmitted by email in accordance with s 494B(5), the legislation deems it to have been received by the end of the day on which the email was sent even if the person did not check her or his email account and "open" the document until much later. 19 The applicant submitted that she had been told by other people that they had been given a period of 28 days plus 5 days within which to lodge their appeals to the Tribunal. Such discrepancies in the time permitted arise, however, because the length of the period prescribed by the Act depends upon the method by which the document is sent. For example, where the document is sent domestically by prepaid post under s 494B(4), the person is taken to have received the document seven working days after the date of the document (s 494C(4) of the Act). As a result, in those cases the period of 28 days will start to run only on the seventh day after the date of the document. However, for the reasons I have already explained, that is not the case where the document is sent by email. 20 Here the primary judge found that the evidence established that the delegate's decision was transmitted by email to the last email address provided to the Minister for the purpose of receiving documents and therefore by a method specified in s 494B(5) of the Act: see also reg 2.16(3) of the Regulations. As the applicant does not challenge this finding by her proposed grounds of appeal, it is not reasonably arguable that the primary judge made an error in finding that the application was lodged out of time and that the Tribunal therefore lacked jurisdiction. This is because the Tribunal does not have any discretion under s 412(1)(b) of the Act to extend the time within which the applicant could file her application for review: Calimoso v Minister for Immigration and Border Protection [2016] FCA 1335 at [29] (Charlesworth J) (by analogy). In other words, the Tribunal had no option but to reject the applicant's application to review the delegate's decision. It follows that while the result may be harsh where, as here, the application for review was lodged only a short time after the end of the 28 day period, that is not a matter which can be taken into account by the Tribunal. 21 Thirdly, no explanation has been given by the applicant as to why the allegations in Grounds 3 and 4 were not raised before the primary judge. Nor do Grounds 3 and 4 have sufficient prospects of success to warrant the grant of leave to raise them. Proposed Ground 3 simply asserts that the Tribunal was biased without giving any indication as to the basis on which the allegation is made. Proposed Ground 4 is equally vague and general. In any event the Tribunal gave clear reasons for finding that it lacked jurisdiction, including in identifying the material findings of fact on the basis of which it reached that conclusion.

1. CONCLUSION 22 For these reasons, the application for leave to appeal must be refused. As the respondent has successfully resisted the application for leave to appeal, the applicant is to pay the respondent's costs as agreed or assessed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.