Herath v Minister for Immigration and Border Protection

Background 3 The appellant is a citizen of Sri Lanka. On 14 August 2015, the appellant applied for the Visa. In his Visa application, the appellant agreed that the first respondent's Department could communicate with him by email and provided an email address (kasun@kgsconsulting.com.au) for that purpose. The email address was that of his registered migration agent, Kasum Gamiath. The registered migration agent was also the authorised recipient of the Department's written communications about the Visa application. 4 On 18 December 2015, the delegate refused to grant the appellant the Visa. The delegate found that the appellant had not provided any evidence that he was enrolled in an acceptable course of study and that a check of the Provider Registration and International Student Management System (PRISMS) did not indicate that he held an enrolment in an acceptable course of study. Accordingly, the delegate found that the appellant did not satisfy cl 573.222 of Schedule 2 to the Migration Regulations 1994 (Regulations). 5 The delegate notified the appellant of the refusal of his Visa application the same day, by letter emailed to the email address notified by the appellant on his Visa application form -kasun@kgsconsulting.com.au.

Legislative Provisions 6 Section 348 of the Migration Act 1958 (Cth) (Act) relevantly provides that "if an application is properly made under section 347 for review of a Part 5-reviewable decision, the Tribunal must review the decision." It appears that the appellant made his application for review under s 347. 7 For the purposes of s 347 of the Act, reg 4.10 of the Regulations provided for the prescribed period in which an application for review was to be given to the Tribunal. By virtue of reg 4.10 the prescribed period "starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received". There is no provision for an extension of time. 8 The effect of s 494B(5) of the Act is that the Minister may give a document to a person by "transmitting the document by … email … to the last … email address … provided to the Minister for the purposes of receiving documents". The effect of s 494C(5) of the Act is that where a document is given to a person by a method specified in s 494B(5), the person is taken to have received the document at the end of the day on which the document is transmitted. 9 When the Minister or his delegate refuses to grant a visa, he is required by s 66(1) of the Act to notify the applicant of the decision in the prescribed way. Regulation 2.16(3) of the Regulations 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, which includes by email to the last email address: see [8] above. A note to this provision states: 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. 10 Section 494D(1) of the Act provides that: If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to receive documents in connection with specified matters arising under this Act or regulations, the Minister must give the authorised recipient, instead of the first person, any documents in connection with those matters that the Minister would otherwise have given to the first person. Note: If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method. 11 Section 494D(2) further provides: If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. However, this does not prevent the Minister giving the first person a copy of the document.

Tribunal proceedings and decision 12 On 12 January 2016, the appellant lodged an application for review in the Tribunal. This was 25 days after the delegate's decision. With his application for review, the appellant submitted a statement that said he received the delegate's decision a day before the "cut off date" because both he and his "lawyer" were on vacation over the holiday period and were unable to communicate. 13 On 18 January 2016, the Tribunal sent the appellant an invitation to comment on the validity of the application, noting that it appeared that the application for review was not lodged within the prescribed period of 21 days. On 2 February 2016, the appellant sent an email to the Tribunal stating that he relied on his written statement attached to his application for review. 14 On 4 March 2016, the Tribunal determined that it did not have jurisdiction to review the delegate's decision. 15 The Tribunal found that, pursuant to s 347(1)(b) of the Act and reg 4.10 of the Regulations, an application for review of the delegate's decision was required to be lodged within 21 days after the appellant was notified of the decision in accordance with the statutory requirements. The Tribunal was satisfied that the appellant was notified of the delegate's decision in accordance with the statutory requirements, since he was "notified of the decision by letter dated 18 December 2015 and dispatched by email to his migration agent who the applicant had nominated as the recipient for communications in his visa application". 16 The Tribunal had regard to the appellant's explanation for the delay but found that "in accordance with reg 2.55 of the Regulations", the appellant was taken to have been notified of the delegate's decision on 18 December 2015 and the prescribed period within which the review application could have been made ended on 8 January 2016. The Tribunal found that "[a]s the application for review was not received until 12 January 2016, 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".

Federal Circuit Court judgment 17 On 30 March 2016, the appellant filed an application in the Federal Circuit Court seeking judicial review of the Tribunal's decision on the following ground: 1. The decision of the Administrative Appeals Tribunal (Migration Division) is affected by jurisdictional error. Particulars The appellant pursuant to r[eg] 2.55 of the Regulations was not notified of the decision on 18 December 2015. That given the Christmas holiday period has commenced, the department should not have emailed the decision to the migration agent, taking into account this holiday period. 18 On 9 October 2017, the matter came before the Federal Circuit Court for hearing, and the appellant appeared in person. The primary judge delivered an ex tempore judgment the same day dismissing the application. 19 The primary judge observed that the appellant had filed his application for review four days outside the time limit provided for by reg 4.10 of the Regulations, as contemplated by s 347(1)(b) of the Act. The primary judge had regard to the appellant's explanation for the delay, but found that neither the Tribunal nor the Court had a discretion to extend the time limit for filing an application to the Tribunal for the review. His Honour added: In this case, there is nothing in the material to suggest that there was conduct by a person that would constitute a fraud on the Tribunal. In the circumstances, the Tribunal was correct in concluding that they did not have jurisdiction in this matter. 20 Accordingly, his Honour dismissed the application, with costs.

The notice of appeal 21 On 25 October 2017, the appellant filed a notice of appeal from the judgment of the Federal Circuit Court. The appellant relies on the following ground of appeal: 1. The decision of the Federal Circuit Court is affected by jurisdictional error. Particulars The applicant pursuant to r[eg]. 2.55 of the Regulations was not notified of the decision on 18 December 2015. That given the Christmas holiday period had commenced, the department should not have e mailed the decision to the migration agent, taking into account this holiday period. 22 The appellant also filed an affidavit sworn by him on 12 October 2017, which repeated the particulars to the ground of appeal above.

Consideration 23 The appellant alleges that the primary judge erred in dismissing his application for the same reasons advanced before the Federal Circuit Court. The first respondent submits that the primary judge's decision was correct, and the appeal must fail. 24 The delegate's decision in the appellant's case was a Part 5-reviewable decision within the meaning of s 338(2) of the Act. As indicated already, by virtue of s 348 of the Act, the Tribunal was required to review the decision "if an application is properly made under section 347". 25 Section 347 of the Act relevantly provides as follows: (1) An application for review of a Part 5-reviewable decision must: (a) be given to the Tribunal within the prescribed period, being a period ending not later than: (i) if the Part 5-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A) - 28 days after the notification of the decision. 26 As already noted, for the purposes of s 347 of the Act, the prescribed period is defined in reg 4.10 of the Regulations as starting when the applicant receives notice of the decision and ending at the end of 21 days after the day on which the notice is received. 27 When the Minister or his delegate refuses to grant a visa, he is required by s 66(1) of the Act to notify the applicant of the decision in the prescribed way. As noted above, reg 2.16(3) of the Regulations provides that, for the purposes of s 66(1) of the Act, 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. As noted above, s 494B(5) provides for transmission by email as a method by which a document may be given to a person. 28 The first respondent was entitled to rely on this method since the document notifying the delegate's decision was transmitted by email to the last email address provided to the first respondent by the appellant for the purposes of receiving documents in accordance with s 494B(5). By operation of s 494C(5) of the Act, the appellant's authorised representative and the appellant (see below) were taken to have received the emailed notification of the delegate's decision at the end of the day on which the document is transmitted. This was the end of 18 December 2015. 29 Section 494D(1) of the Act provides that if a person gives the first respondent written notice of the name and address of another person authorised by the first person to receive documents, the first respondent must give the authorised recipient the documents instead of the first person. The appellant gave the written notice referred to in s 494D(1) when he completed his Visa application form as described in [3] above. As will have been seen, s 494D(2) of the Act provides that if a document is given to the authorised recipient, it is taken to have been given to the first person. 30 By operation of ss 494B(5), 494C(5) and 494D(1) and (2) of the Act, the applicant was taken to have received the notification of the delegate's decision at the end of 18 December 2015, when it was emailed that day to the email address he had given in his Visa application form. 31 I reject the appellant's argument that the Tribunal should not have included public holidays when calculating time because the time limits in s 347(1)(b) of the Act and reg 4.10 of the Regulations are calculated in "days", not "working days". One may contrast these provisions with other provisions of the Act, which do indeed refer to working days: see, for example, ss 137K, 195, 332H, 352, 379A, 379C, 418, 441C, 473HB, 473HD, and 494B(4). None of these latter provisions were, however, applicable here. 32 Consistently with ss 36 and 37 of the Acts Interpretation Act 1901 (Cth), "days" in the provisions relevant to the appellant's case means calendar days. Section 36 of the Acts Interpretation Act 1901 (Cth) makes particular provision for the case where a thing must by another Act be done on a Saturday, a Sunday or a holiday, but this would not have assisted the appellant. He was obliged to have filed his application for review in the Tribunal by 8 January 2016. This was a Friday and not a public holiday: see s 36(3). In any event, assuming the Acts Interpretation Act 1901 (Cth) was applicable, the effect of s 36 would only be to allow him to file the application the next day that was not a Saturday, a Sunday or a public holiday: see s 36(2) and (3). 33 In the present circumstances, the appellant has not shown that there was any error in the judgment of the primary judge, who held that, as the application for review to the Tribunal was made out of time, the Tribunal did not have jurisdiction. Neither the Tribunal nor the Federal Circuit Court were able to extend time. 34 I would add, lest it be thought it had been overlooked, that the reference in the Tribunal's reasons to reg 2.55 of the Regulations (which was inapplicable here) was in error. For the reasons explained, however, the error could have made no possible difference, given that s 494C(5) (which was applicable) had the same effect as reg 2.55. 35 The legislative provisions applicable in the appellant's case were explained to him at the hearing. The appellant indicated that he understood their operation and he had hoped to obtain a student visa. The Court has no power, however, to grant or refuse a student visa. This power lies with the first respondent, subject to merits review by the Tribunal. 36 For the reasons stated, the appeal should be dismissed. The appellant should pay the first respondent's costs of the appeal. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.