FEDERAL COURT OF AUSTRALIA

AZAFN v Minister for Immigration and Border Protection (No 2) [2016] FCA 305

ORDERS

THE COURT ORDERS THAT:

1.    The applicant's interlocutory application filed 8 March 2016 is dismissed.

2.    The applicant is to pay the first respondent's costs of the interlocutory application as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MARKOVIC J:

1    On 3 March 2016 the applicant’s appeal from a judgment and orders of the Federal Circuit Court of Australia (Federal Circuit Court) delivered and made on 18 September 2015 dismissing her application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal) (AZAFN v Minister for Immigration & Anor [2015] FCCA 2498) was listed before the Court for hearing.

2    On that day the applicant failed to appear and, in her absence, on the application of the respondent (the Minister) I made an order pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (the Rules) dismissing the appeal and ordered the applicant to pay the Minister’s costs as agreed or taxed: AZAFN v Minister for Immigration and Border Protection [2016] FCA 220 (AZAFN).

3    The applicant has now filed an application for reinstatement of the appeal which is listed before me for hearing this morning.

the Application for reinstatement

4    In her interlocutory application filed on 8 March 2016 the applicant seeks the following orders:

1.    To squash the decision of federal court and federal circuit court

2.     To squash the decision of the administrative appeals tribunal

5    The applicant relies on an affidavit sworn by her on 7 March 2016 in which she says that she thought her hearing was on 4 March 2016. She says that she “told officer that [she] missed her hearing and was under impression that [her] hearing was on 4/03/2016. Kindly accept my application and give me hearing date”. The applicant also repeats in her affidavit the ground of appeal included in her notice of appeal.

6    While it is not clear on the face of the interlocutory application, the applicant presumably seeks an order pursuant to r 39.75(2) of the Rules setting aside the order dismissing the appeal. I propose to proceed on the basis that that is what is intended. The Minister opposes the interlocutory application.

7    The Minister relies on an affidavit affirmed by Oliver Young on 21 March 2016 to which is annexed:

(1)    an email from the Court to the Minister’s solicitors which annexes a letter dated 14 December 2015 addressed to the applicant and the Minister’s solicitors notifying the parties of the hearing date on 3 March 2015 at 10.15 am in Adelaide (the 14 December Letter);

(2)    a letter from the Minister’s solicitors to the applicant enclosing a copy of the 14 December Letter, confirming that the appeal is listed for hearing on 3 March 2016 at 10.15 am and putting the applicant on notice that, if she does not attend on that day, the Minister would seek orders that the appeal be dismissed and that the applicant pay the Minister’s costs; and

(3)    a letter dated 24 February 2016 from the Minister’s solicitors to the applicant enclosing the Minister’s submissions and list of authorities. That letter once again informed the applicant of the hearing date and time of the appeal and put the applicant on notice that, if she did not attend on that day, the Minister would seek orders that the appeal be dismissed and that the applicant pay the Minister’s costs.

In each case the letters from the Minister’s solicitors were sent to the applicant’s address for service shown in her notice of appeal. That is also the address given by the applicant in her interlocutory application.

relevant principles

8    In MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 (MZYEZ) Ryan J considered the principles governing an application for reinstatement of a matter dismissed in the absence of a party. In that matter, the applicant’s application before the Federal Magistrates Court, as it was then known, was dismissed in his absence. The applicant applied for reinstatement of that application and the Federal Magistrate refused the application. The applicant sought leave to appeal from that decision. In that context Ryan J at [7] recognised that where reinstatement is sought a discretion falls to be exercised by the Court which requires the consideration of three factors:

(1)    whether there is a reasonable excuse for the party’s absence;

(2)    the existence and nature of any prejudice which might flow to the other party from a reinstatement and if so, the extent to which that prejudice can be counteracted or assuaged by a costs order, an adjournment or other relief;

(3)    whether the applicant for reinstatement has a reasonably arguable prospect of success on the substantive application.

9    I accept the Minister’s submission that, while MZYEZ is concerned with rule 13.03C(1) of the then Federal Magistrates Court Rules 2001 (Cth), the same discretionary criteria is applicable to an application pursuant to rule 36.75(2) of the Rules.

Parties’ submissions

10    The applicant has not filed any written submissions in support of her interlocutory application. At the hearing, she submitted orally that the initial decision that was made was incorrect. She explained that submission by saying that the letter sent to her for the initial date was never received by her and a decision was made in her absence. The applicant said that this was in 2013. I understand that to be a reference to the decision of the delegate dated 21 May 2014. An invitation to attend an interview with the delegate was sent. The delegate records, at part 9 of her decision under the heading “Finding of Fact (Credibility)”:

Findings and reasons and material evidence put to the applicant for comment

The applicant failed to respond to the invitation to schedule a time for a PV interview. As there has been no further contact from the applicant the decision is made based on the information available to the department at time of decision.

11    The Minister has filed and served written submissions. In summary, the Minister concedes that he would suffer no prejudice should the appeal be reinstated, but contends that the absence of prejudice cannot, of itself, justify the exercise of the discretion sought by the applicant. In relation to the other two factors, the Minister submits that the applicant has not provided a reasonable excuse for her non-attendance at the hearing on 3 March 2016 and that her explanation for her absence is deficient. The Minister also submits that there are no reasonable prospects of success of the applicant’s substantive appeal.

Consideration

A reasonable excuse for non attendance?

12    At the hearing of the appeal on 3 March 2016, which took place by video link between Sydney and Adelaide, and, as is set out in AZAFN, there was some confusion about the time for the hearing, given the half hour time difference between Adelaide, where the parties were located, and Sydney, where I was located. For that reason I adjourned the proceedings for half an hour to ensure that the applicant’s non-attendance at 10.15 am Sydney time was not caused by such confusion. When the matter resumed it was past 10.15 am in Adelaide. There was no appearance by the applicant when the matter was called for a second time. Hence the matter proceeded in the applicant’s absence.

13    However, based on her evidence, the applicant’s non-attendance was not caused by any confusion about the time of the hearing. Rather she says that she thought the hearing was on 4 March 2016. She does not give any reason why that is so. I do not, in those circumstances, accept that the applicant has provided a reasonable excuse for her absence from the hearing of her appeal. My view on that is further informed by the affidavit of Mr Young which the Minister relies on defensively in order to show that he is not aware of where any misunderstanding could have come from. The letters sent by the Minister’s solicitors to the applicant’s address for service clearly set out the hearing date and time.

A reasonably arguable prospect of success on the substantive appeal?

14    The facts relevant to the applicant’s substantive appeal are as follows:

(1)    the applicant is a citizen of India. She arrived in Australia on 23 November 2009 as a dependant on a Class TU subclass 573 visa which ceased on 2 September 2012;

(2)    on 9 August 2013 the applicant applied for a Protection (Class XA) visa. She claimed, in summary, that her parents-in-law were against her marriage, that they threatened to kill her if she did not leave her husband and that after she came to Australia with her husband they threatened to kill her if she returned to India. The applicant is no longer in a relationship with her husband due to the pressure exerted by her parents-in-law. In her application the applicant included the same address in suburban Perth as her residential and postal address (the Perth Address);

(3)    on 16 April 2014, by letter addressed to the Perth Address, the applicant was invited to attend an interview with a delegate of the Minister which she did not attend;

(4)    on 21 May 2014 the delegate refused to grant the applicant a Protection (Class XA) visa. The delegate’s decision was sent to the Perth Address. On 12 June 2014 the envelope containing the delegate’s decision was returned to sender with a sticker indicating the addressee had left the address or was unknown there;

(5)    on 22 July 2014, the applicant applied to the Tribunal for review of the delegate’s decision;

(6)    on 1 August 2014, the Tribunal wrote to the applicant informing her of its view that her application was not valid because it was lodged outside the 28 day time limit permitted for the lodgement of an application and invited the applicant to comment;

(7)    the applicant responded to the Tribunal’s invitation to comment informing it that she did not receive the “letter for hearing or of decision” and that she learnt of her “visa status” when she received communications from the Minister’s department and then attended the offices of the Minister’s department. The applicant said that she applied for review within 28 days of being notified “in person” of the delegate’s decision.

(8)    on 8 September 2014 the Tribunal determined that it had no jurisdiction to consider the applicant’s application for review. The Tribunal noted that pursuant to s 412(1)(b) of the Migration Act 1958 (Cth) (the Act) and reg 4.31 of the Migration Regulations 1994 (Cth) (the Regulations) an application for review of the delegate’s decision had to be made within 28 days after the applicant was notified of the decision in accordance with the requirements of the Act. The Tribunal found that the delegate’s decision was despatched by post and that, in accordance with s 494C of the Act, the applicant was taken to be notified of the decision on 4 June 2014. On that basis the period in which the applicant could lodge an application for review ended on 2 July 2014. As the application for review was received by the Tribunal on 22 July 2014, it had no jurisdiction;

(9)    on 15 October 2014 the applicant commenced proceedings in the Federal Circuit Court for judicial review of the Tribunal’s decision raising one ground of review. As the application was not filed within the required time after the date of notification of the Tribunal’s decision she also applied for an extension of time to make her application under s 477 of the Act. The primary judge dismissed the applicant’s application. The primary judge found that the Tribunal correctly applied s 412(1)(b) of the Act and that it was bound to apply s 494C of the Act and to assume the applicant had received the delegate’s decision on a date which could be calculated from the applicable regulations;

(10)    the applicant then appealed to this Court raising one ground of appeal which was essentially the same as the ground of review raised in the Federal Circuit Court and which is (as written):

Tribunal made errors in its decision. I have pointed out Jurisdictional error in the tribunals judgment in my Application for Federal circuit court but still FCC made an order against me. MRT refused my review application stating that it was invalid and tribunal doesnot have jurdiction in this matter. Tribunal stated that in pursuant to s.412(1)(b) of the act and r.4.31 of the migration regulations 1994, an application had to be made within 28 days after the applicant was notified of the decision in accordance with the statutory requirements. Tribunal gave me a chance to response. I clearly stated to them that I had not received any letter and I was informed about this by immigration on 27/06/2014 and on basis of that I applied on 22/07/2014 that is within 28 days time. Tribunal failed to understand meaning of S.421(1)(b) and r.4.31. Migration regulation and law is drafted in a way that it serves purpose of immigration and help applicant giving him a fair go. When the post is being sent by immigration and due to some mistake of post applicant didnot get it then how come applicant is deemed to receive it. This is totally unfair and against ethos of Australian community. I need a fair go and want this section and regulation to be changed appropriately. Tribunal made a wrong decision by taking section and regulation by its literal meaning and not considering fact of Applicant.

15    In her ground of appeal, the applicant, in summary, says that the Tribunal failed to understand the meaning of s 421(1)(b) of the Act and r 4.31, that there was a mistake in the posting of the letter, she did not receive it and thus how could she be deemed to receive it.

16    The delegate’s decision refusing to grant the applicant a protection visa is a Part 7 - reviewable decision: see s 411 of the Act. Accordingly, pursuant to s 412(1)(b) of the Act an application for review of that decision had to be given to the Tribunal within the prescribed period, being a period ending not later than 28 days after the notification of the decision. Regulation 4.31(2) prescribes that an applicant who is not in immigration detention on the date of notification of a Part 7 – reviewable decision must give an application for review of the decision to the Tribunal within 28 days, commencing on the day of notification of the decision and ending at the end of 28 days.

17    Section 494B of the Act prescribes the methods by which the Minister is to give documents to a person. One of the methods is by prepaid post despatched within 3 working days of the date of the document to the last address provided to the Minister for the purpose of receiving documents: see s 494B(4) of the Act.

18    Where the Minister gives a document to a person by prepaid post, despatched from a place in Australia to an address in Australia, the person is taken to have received that document 7 working days after the date of the document: see s 494C(4) of the Act.

19    As the primary judge found, and the Minister submits, the Tribunal properly assessed the application of s 412(1)(b) and found that the applicant had 28 days after notification of the delegate’s decision to lodge an application with the Tribunal for review of that decision.

20    The Tribunal incorrectly referred to the date of the letter notifying the applicant of the delegate’s decision as 25 May 2014 and on that basis found that pursuant to s 494C(4) of the Act the applicant was deemed to have been notified of the decision on 4 June 2014. The letter notifying the decision was in fact dated 21 May 2014 and thus pursuant to the operation of s 494C(4), the applicant was deemed to have been notified of the decision on 30 May 2014. The date on which the applicant therefore had to lodge an application for review with the Tribunal was 27 June 2014 and not 2 July 2014 as found by the Tribunal. The primary judge, at [31] of his judgment, refers to the Tribunal’s findings in relation to these dates.

21    Nothing turns on the factual error made by the Tribunal in relation to the deemed notification date because it was, as the Minister submits, an error in the applicant’s favour. Whether the deemed notification date was said to be 4 June 2014, as found by the Tribunal, or 30 May 2014, the correct date, the applicant was still out of time as she did not lodge her application with the Tribunal until 22 July 2014, which was outside the prescribed 28 day time limit when applied to either of these dates. Similarly, there is no error in the approach of the primary judge and his consideration of whether the Tribunal had jurisdiction because of the factual error made by the Tribunal.

22    As noted by the Minister in his submissions, the deeming provisions of the Act have been considered by this Court. The primary judge referred to the relevant authorities at [33] and following of his judgment. In Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86, Jacobson J in considering the application of analogous deeming provisions to those applicable here said at [58] and [66]-[68]:

The purpose of provisions such as these is to achieve administrative certainty as to whether a document has been given to a person, and as to the time at which this has occurred. It affects time limits for review of administrative decisions and may, in some instances, foreclose that possibility.

…

Sections 494B and 494C of the Migration Act were introduced by the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 (Cth). The Explanatory Memorandum to the Bill stated relevantly that its main purpose was to bring the Migration Act into line with the ET Act.

The Explanatory Memorandum at [162]-[163] makes clear the reason why s 494C(6) was included so as to expressly “disapply” the deemed receipt provisions of the ET Act. The Explanatory Memorandum states at [163]:

“There is a need in the migration context for receipt to be easily determinable for the purposes of establishing the date from which the time for making a review application begins to run. Given this, it was preferable to expressly provide for deemed receipt in Schedule 3 to the Bill and not rely on the default provisions in section 14 of the ET Act.”

This again emphasises the need for administrative certainty, to which I referred above, as the evident purpose of these provisions.

23    As the primary judge found at [34] of his judgment, the Tribunal was not required to consider whether the applicant actually personally received the decision once it had been despatched in accordance with the requirements of the Act. The focus of the statutory scheme is on administrative certainty: see Tay v Minister for Immigration and Citizenship (2010) 183 FCR 163 at [24].

24    It follows from what is set out above that in my view the applicant’s substantive appeal does not have reasonable prospects of success.

25    The Minister has said that he will suffer no prejudice if the appeal is reinstated. However, as submitted by the Minister that matter of itself is not sufficient for the Court to order reinstatement without more. In light of my findings in relation to the reasons for non-attendance and the prospects of success of the substantive appeal, the applicant’s interlocutory application cannot succeed. I will make the following orders:

(1)    the applicant’s interlocutory application filed 8 March 2016 is dismissed;

(2)    the applicant is to pay the first respondent’s costs of the interlocutory application as agreed or assessed.

Associate:

Dated:    29 March 2016