"Vaq" v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT BACKGROUND 1 The question for decision in this appeal is whether the primary judge erred in holding that the appellant had not within the prescribed time applied to the Refugee Review Tribunal ("the Tribunal") for review of the respondent's refusal of his application for a protection visa. The appellant applied for a protection visa on 9 March 2001. A delegate of the respondent refused the application on 3 May 2001. The appellant was notified of the delegate's decision and was taken to have received that notification no later than 10 May 2001. He made an application for review of the decision which was received by the Tribunal on 1 August 2001 ("the Application"). Section 412(1)(b) of the Migration Act 1958 (Cth) ("the Act") provides that: "An application for review of an RRT ‑ reviewable decision 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." On 17 August 2001 the Tribunal determined that it did not have jurisdiction to entertain the Application because it had been filed out of time and the Tribunal did not have power to extend the time for filing an application. On 23 August 2001 the appellant filed an application to the Court to review the Tribunal's decision. RESPONDENT'S MOTION 2 By motion notice of which was filed on 4 September 2001 the respondent sought orders that the application to the Court be summarily dismissed. The basis of the application was that the Tribunal, in holding that the receipt of the Application on 1 August 2001 was outside the time fixed by s 412(1)(b), and that it had no power to extend that time, was so clearly and unarguably correct that judgment should be given for the respondent immediately. The primary judge noted that the appellant appeared without legal representation, and his Honour indicated that since the respondent sought to rely on a number of legal arguments, he would take particular care to ensure that the appellant was not prejudiced by his lack of legal knowledge. At the hearing on 17 September 2001 his Honour noted that whilst s 478 of the Act contains an express exclusion of any power to extend time for filing of an application for review by the Court of a decision of the Tribunal, there is no equivalent express exclusion in s 412(1)(b). Consequently his Honour felt it may have been possible to argue that the Tribunal has power to extend time in the case of an application for review of an RRT‑reviewable decision. The matter was adjourned for preparation of further argument on this point. On 21 September 2001 the respondent filed written submissions which relied on two Full Court decisions ‑ Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407 and Guirgis v Minister for Immigration and Multicultural Affairs [2001] FCA 589 ‑ to establish that there is no power to extend time. On 24 September 2001 the matter again came on for hearing. The appellant was asked to respond to the written submissions, but he had nothing to say concerning the legal issue. His Honour accepted the respondent's argument, and accordingly held that the Tribunal had correctly determined that it had no power to extend time for lodging the Application. 3 It was at this point that the appellant explained that it was his argument that there was no need to extend the time because he had been told by his migration agent that the Application had in fact been lodged in time on 12 May 2001. This answer to the application for summary judgment had not previously been raised. His Honour noted that the grounds of review of a decision of the Tribunal are prescribed in s 476(1) of the Act and that those grounds do not usually allow for the leading of further evidence before the Court. Because the Court must review the decision of the Tribunal, it is restricted to a consideration of the evidence that was before the Tribunal. However, in the circumstances of this case, his Honour felt it appropriate to allow the parties to lead evidence as to the circumstances in which the Application was filed. The parties did not resist this course. 4 On 28 September 2001 the appellant filed a statutory declaration made by his migration agent, Mr Mohamed Habib Tuferu, in which the deponent claimed to have faxed the Application to the Tribunal on 12 May 2001. In response, the respondent filed an affidavit by the Deputy Registrar of the Tribunal, Ms Katherine Matic. This affidavit was directed to the application of sub‑regulation 4.3(1)(iii)(d) and (iv) of the Migration Regulations. The former permits the lodgement of an application for review with the Tribunal by facsimile transmission. Regulation 4.3(1)(iv) provides, so far as is relevant: "An application transmitted in accordance with regulation 4.3(1)(iii)(d) is not to be taken to be lodged until it is received at a registry of the Tribunal." Ms Matic outlined the document handling procedures used in the Melbourne Registry of the Tribunal. An application that is received by facsimile is to be stamped with the date, and its details are to be entered into the correspondence register. She said the Application (dated 12 May 2001) was received on 1 August 2001. She produced a memorandum dated 1 August 2001 from a Tribunal officer recording that Mr Tuferu had informed the officer that he had also sent the Application to the Tribunal by mail during the week following 12 May 2001. Ms Matic said she had searched the incoming facsimile and mail registers for the period 12 May to 7 June 2001 and found no correspondence from the appellant's agent during that time. She had also checked the facsimile log of the facsimile machine to which the agent claimed to have sent the Application (for the same period), and found no record of it. Ms Matic stated that during the eight years she had been employed in the Tribunal no applications either by facsimile or mail had gone missing, and that the procedures for the receipt of facsimile and mail were adhered to at all times. She said that in the light of this procedure "the possibility that a facsimile application could fail to be entered and acknowledged is very unlikely; that both a facsimile application and a subsequent mail application could be misplaced is extremely remote". Ms Matic produced an undated letter from the appellant that was received by the Tribunal on 15 August 2001 in which he stated that he had signed the Application on 31 July 2001 ‑ the day before it was in fact received by the Tribunal. 5 The primary judge referred to Ismail v Minister for Immigration & Multicultural Affairs [1998] FCA 1654 where Wilcox J held there was no lodgment within the meaning of regulation 4.3(1)(iv) where the malfunction of a fax machine resulted in an admitted transmission of a facsimile not being completed by receipt. On the basis of the material before him, the primary judge was satisfied on the balance of probabilities that the Tribunal did not receive any fax on 12 May 2001 containing an application by the appellant for review of the decision of the Minister's delegate. GROUNDS OF APPEAL 6 First, the appellant submitted that the primary judge erred in his application of Fernando v Minister for Immigration and Multicultural Affairs and Guirgis v Minister for Immigration and Multicultural Affairs. He contended that these cases do not apply to the situation where the Tribunal's receipt of an application is in dispute. There is no substance to this complaint. Once his Honour found that the Application was not received within the prescribed period he was bound to apply the principle endorsed by Full Courts in those cases. See also the decision of the Full Court in Nguyen v Refugee Review Tribunal (1997) 74 FCR 311. That finding resolved "the dispute", and the law then applied to the facts found. 7 The appellant's second submission is that his Honour "should have found that in the circumstances where the Tribunal and the appellant were in dispute over whether the Application had as a question of fact been lodged, the Court has a power under s 476(1)(c) or s 476(1)(d) of the Act to order that the Tribunal accept the application and review the decision." This submission is disposed of by what we have said in the preceding paragraph. Once the facts were found there was no longer a dispute. In any event, the dispute about the receipt of the Application was not raised before the Tribunal, and s 476(1)(c) and (d) would not apply. On the material before the Tribunal its decision was authorised by the Act and the Regulations, and was not an improper exercise of power. 8 The third and fourth grounds of appeal both allege that the Tribunal did not give the appellant the opportunity to adduce sworn evidence that the Application had in fact been lodged. By letter dated 10 August 2001 the Tribunal invited the appellant to send it any information or written submissions about the jurisdictional issue to which it drew his attention. He responded by an undated letter to the Tribunal (received 15 August 2001) in which he said he did not sign the Application until 31 July 2001. Further, any obligation upon the Tribunal to invite an applicant to appear before it to give evidence (s 425), or right of an applicant to request the Tribunal to obtain oral evidence from a witness (s 426), is predicated upon the existence of a valid application for review (s 414). 9 The fifth ground of appeal is that "the Tribunal, in distinguishing between an application being lodged late and being received late, erred in the application of the law to the facts. To the extent that it holds otherwise, the decision of Wilcox J in Ismail v Minister for Immigration & Multicultural Affairs [1998] FCA 1654 is, with respect, incorrectly decided." Given that this issue was not raised before the Tribunal, we can only assume that the appellant means to refer to the primary judge and not the Tribunal. The first part of this submission is plainly incorrect. His Honour did not distinguish between an application being lodged late and being received late. Instead, he pointed out that regulation 4.3(1)(iv) provides that an application is not to be taken to be lodged until it is received. As such, an application received late is lodged late. As to the second part of this submission, Ismail is in our view correct. 10 Finally, the appellant contends that the primary judge erred in finding that the Tribunal did not receive a fax from the appellant on 12 May 2001, as his Honour should have examined the evidence in light of the rule in Briginshaw v Briginshaw (1938) 60 CLR 336 and determined that the affidavit of Ms Matic was nothing more than "indefinite testimony". In Briginshaw at s 362 Dixon J said: "reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences." On the assumption that the Briginshaw principle is applicable to a case such as the present where all that is in question is the date on which an application was received by the Tribunal, we are satisfied that the evidence contained in Ms Matic's affidavit was "clear and definite", and could not be described as "nothing more than indefinite testimony". It was well‑researched and supported by documentary evidence. Further, it is difficult to see how his Honour, had he positively directed himself in Briginshaw terms, could possibly have come to a different conclusion in the light of the letter from the appellant stating that he had not signed the Application until 31 July 2001. CONCLUSION