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.