Monga v Minister for Immigration and Border Protection

1. The appeal is dismissed.
2. The appellant is to pay the first respondent's costs as agreed or assessed.
3. In the event that an agreement (including as to payment by way of instalments) cannot be reached, the Registrar may vary the order in paragraph 2 including for the purpose of providing for payment of costs by way of instalments. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

CHARLESWORTH J: 1 This is an appeal from a judgment of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal. 2 I made orders dismissing the appeal on 21 February 2019. I delivered oral reasons at the hearing. I now provide written reasons to substantially the same effect. 3 The Tribunal concluded that it did not have jurisdiction to review a decision of a delegate of the then-named Minister for Immigration and Border Protection to refuse to grant the appellant a visa under the Migration Act 1958 (Cth). 4 The primary judge found that the Tribunal did not err in determining that it had no jurisdiction to review the delegate's decision. The primary judge also rejected a ground of judicial review by which it was contended that the Tribunal had failed to afford the appellant procedural fairness, particularly on the question of whether or not it had jurisdiction to conduct the review. 5 The single ground of appeal reads: Court order is injustice. 6 At the hearing of this appeal I proposed to the Minister's counsel that I might generously interpret that ground of appeal so as to assert that the primary judge committed appealable error in rejecting the grounds for judicial review advanced before his Honour in the proceedings below. The Minister did not oppose that course. 7 When the Minister or his delegate refuses to grant a visa the visa applicant is to be notified by one of the methods specified in s 494B of the Act: see s 66(1) of the Act, together with reg 2.16(3) of the Migration Regulations 1994 (Cth). Section 494B(5)(c) and (d) permit a document to be provided to a person by electronic means to, relevantly, the last email address that is provided to the Minister for the purpose of receiving documents. 8 A person is taken to have received a document from the Minister within the times defined in s 494C of the Act. Relevantly, s 494C(5) provides that if the Minister gives a document to a person by a method specified in s 494B(5) (that is, by email) the person is taken to have received the document at the end of the day on which the document is transmitted. 9 On his application for the visa, the appellant specified a hotmail email address as being the email address to which the Minister may provide documents to him. The delegate's decision was provided to the appellant on 13 October 2016 by email to that hotmail address. By the combined operation of s 494B(5) and s 494C(5), the delegate's decision must be taken to have been provided to the appellant on 13 October 2016. 10 Section 347 of the Act relevantly provides that an application for review of a Pt 5 reviewable decision, of which this is one, must be given to the Tribunal within the "prescribed" period, being a period ending not later than 28 days after notification of the decision: s 347(1)(b). Section 347(5) provides that regulations made for the purposes of subs (1)(b) may specify different periods in relation to different classes of Pt 5 reviewable decisions. 11 Regulation 4.10 is a regulation made under the empowering provision in s 347(5) of the Act. It prescribes the time periods in which an application for review of certain Pt 5 reviewable decisions must be made. A period of 21 days is specified for the decision forming the subject matter of this appeal: reg 4.10(1)(a). The regulation permissibly prescribes a period that is shorter than the 28 day period referred to in s 347(1)(b) of the Act. 12 Accordingly, the last date on which the appellant was to file an application for review to the Tribunal was 3 November 2016. It is not disputed that the application for review was filed a week later on 10 November 2016. 13 Upon receiving the application, the Tribunal wrote to the appellant. It identified that the application for review had been lodged outside of the statutory timeframe and invited the appellant to make submissions and to comment. In response, the appellant submitted that he had not understood that the timeframe was 21 days and that he had believed that the timeframe was 28 days. He also submitted to the Tribunal that he had been committed to the care of his mother who was ill and that this had contributed to the delay and perhaps his confusion as to the date on which the application for review was to be filed. 14 In its reasons for decision, the Tribunal made reference to the explanations that had been given by the appellant, but nonetheless determined that it did not have jurisdiction to review the delegate's decision. 15 Two issues arose in the proceedings before the primary judge. The first was whether the Tribunal had committed jurisdictional error by refusing to review the delegate's decision. The second was whether or not the Tribunal had committed jurisdictional error by failing to afford the appellant procedural fairness. 16 On the material before me it has not been demonstrated that the Tribunal erred in calculating the dates upon which the application for review was required to be lodged or in misunderstanding the evidence so as to make an erroneous finding as to when the application for review was, in fact, lodged. No errors of that kind were established before the primary judge. 17 The primary judge held that the Tribunal did not have any discretion to extend the timeframe imposed by the statute or to otherwise accept an application for review out of time. The primary judge did not commit an appealable error in that respect: Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 at [54] - [83] (McKerracher, Reeves and Thawley JJ); Herath v Minister for Immigration and Border Protection [2018] FCA 1273 at [33] (Kenny J); Al Titi v Minister for Immigration and Border Protection [2018] FCA 239 at [8] (Allsop CJ); Fahme v Minister for immigration and Border Protection [2017] FCA 614 at [35] (Rares J); Tangilanu v Minister for Immigration and Border Protection [2016] FCA 589 at [14] (North J) Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 at [4] - [5] (Spender, Kiefel and Dowsett JJ). 18 As to the question of whether or not the Tribunal failed to afford the appellant procedural fairness, in my view, no breach of the rules of procedural fairness was established before the primary judge. 19 The Tribunal did write to the appellant and advised him of its view that it did not have jurisdiction to review the delegate's decision. It invited the appellant to comment. By doing so the Tribunal provided the appellant the opportunity to make submissions as to whether or not the statutory timeframe had been met. 20 The appellant used that opportunity to make submissions to the Tribunal giving an explanation for the delay. However, as the primary judge correctly held, the Tribunal did not have the power to extend the time, whether by reference to matters of personal hardship of the kind to which the appellant had expressed in his submissions or otherwise. 21 In my view, this is a case where there was no unfairness in the relevant sense arising from the fact that the appellant had been asked to comment upon the timeframe issue nor from the fact that his submission giving an explanation for the delay was ineffective. In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, at [37] Gleeson CJ said as follows in respect of the concept of practical injustice: Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. 22 The primary judge stated at [68] that in his view the decision to not entertain the review application was not legally unreasonable. His Honour continued: … The letter sent to [the appellant] may have raised an unrealisable expectation on Mr Monga's part but, in my view, that was not legally unreasonably per se, given the applicable statutory framework. 23 The primary judge should be understood as applying principles in respect of legal unreasonableness as explained by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 in the context of an allegation that proceedings before the Tribunal have been "unfair" in the general sense of the word. 24 The difficulty for the appellant is that there were no submissions he could have made to the Tribunal that could have had a material bearing on the outcome. Although he made submissions to the effect that he had an adequate reason for lodging the application late, and although the application was lodged only a short period outside of the statutory timeframe, those were not matters that the Tribunal could take into account. It either had jurisdiction to review the delegate's decision or it did not. The Tribunal correctly answered that question by reference to objective factors, namely the date on which the delegate's decision was taken to have been received, the statutory timeframe and the date on which the application for review was, in fact, lodged. 25 It follows that I discern no appealable error on the part of the primary judge. The appeal must be dismissed. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.