FEDERAL COURT OF AUSTRALIA

Tangilanu v Minister for Immigration and Border Protection [2016] FCA 589

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant to pay the respondent’s costs of the application fixed at $2,178.

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

REASONS FOR JUDGMENT

NORTH J:

1    On 20 April 2016, the applicant, Mrs Alungamonu Tangilanu, applied for an extension of time on the basis of an affidavit sworn on 18 April 2016. The applicant has been self-represented, and the form of the application, as will become clear, was not directed to the issue which the court needed to consider. In her affidavit the applicant said, in part:

I want justice with the jurisdiction errors by the Immigration Delegate…he declined my application for New Zealand citizen partnership.

2    On 24 November 2014, the applicant applied for a New Zealand Citizen (Family Relationship) (Temporary) (class UP) subclass 461 visa. The application was rejected by a delegate of the respondent, the Minister for Immigration and Border Protection, on 22 January 2015.

3    Cl 461.212(1) of the Migration Regulations 1994 (Cth) (the Regulations) provided that the applicant had to meet the requirements of subclause (2), (3) or (4) in order to qualify for the grant of the visa. The subclause relevant to the applicant was 461.212(2)(a), which provided that:

An applicant meets the requirements of this subclause if the applicant is a member of the family unit of:

(a)    a person who is in Australia as the holder of a Subclass 444 (Special Category) visa;

4    The delegate reasoned as follows:

The applicant does not meet the criterion in subclause 461.212(1) because the applicant does not meet the requirement of subclause 461.212(2) because the applicant is not a member of the family unit of a person who is in Australia as the holder of a Subclass 444 (Special Category) visa.

Background

The applicant is not a member of the family unit of a person who is in Australia as the holder of a Subclass 444 (Special Category) visa because Mosese Matangi Tangilanu, the person who is in Australia as the holder of a Subclass 444 (Special Category) visa was not in Australia at the time the applicant made the application. Mosese Matangi Tangilanu departed Australia on 14/11/2014 and did not return to Australia until 02/12/2014.

5    On 18 March 2015, the applicant lodged an application for review of the delegate’s decision. On 16 April 2015, the Migration Review Tribunal (the Tribunal) determined that the Tribunal did not have jurisdiction to deal with the application for review. Such an application had to be made within 21 days of the applicant being notified of the decision of the delegate (s 347(1)(b) of the Migration Act 1958 (Cth) (the Act) and reg 4.10 of the Regulations). The Tribunal found that the applicant was notified of the delegate’s decision by email on 22 January 2015. That then required that the review application be lodged by 12 February 2015, when, in fact, it was lodged on 18 March 2015. As a result, the Tribunal held as follows:

8.    The Tribunal finds that in accordance with s.494C of the Act the applicant is taken to have been notified of the decision on 22 January 2015. Therefore the prescribed period within which the review application could be made ended on 12 February 2015. As the application for review was not received by the Tribunal until 18 March 2015 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.

6    On 23 June 2015, the applicant applied to the Federal Circuit Court, challenging the decision of the Tribunal. The applicant stated her grounds as follows:

Jurisdiction error by the case officer: Failed to fully consider my application and unfairly declined my application. Failed to follow my question regard my application in a timely manner. Declined me with one about my visa without the right to be hurt[sic]. Failed to consider the severe pain of myself and my whole family over his decline decision.

Processing error.

7    On 1 July 2015, the respondent filed a Notice of Objection to Competency in relation to the application in the following terms:

1.    The decision of the Respondent dated 22 January 2015 would have been reviewable under Part 5 of the Migration Act 1958 (Cth) (Act), had an application for review to the Migration Review Tribunal been made within time. The decision of the Respondent is therefore a “primary decision” within the meaning of s 476(4) of the Act.

2.    Pursuant to s 476(2)(a) of the Act, the Court has no jurisdiction to determine the Application.

8    On 21 March 2016, the Federal Circuit Court delivered judgment. The main issue raised by the applicant in the Federal Circuit Court was described in the judgment at [19] as “what she sees as a jurisdictional error of the delegate’s decision.” The Federal Circuit Court held that it did not have jurisdiction to review the delegate’s decision. The Court stated:

20.    I turn, firstly, to consider the question of the Court’s jurisdiction…Section 476 of the Act provides that:

(1)    Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

(2) The Federal Circuit Court has no jurisdiction in relation to the following decisions:

(a) a primary decision;

...

21.    Section 476(4) of the Act defines a primary decision:

… primary decision means a privative clause decision or purported privative clause decision:

(a) that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or

(b) that would have been so reviewable if an application for such review had been made within a specified period; …

…

22.    Part 5 of the Act is the relevant part, given that in this case, the Applicant is not seeking a protection visa or a visa for humanitarian reasons. Section 338 of the Act is the relevant provision. It provides:

(2) A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non-citizen a visa is a Part 5 - reviewable decision if:

(a)    the visa could be granted while the non-citizen is in the migration zone; and

(b)    the non-citizen made the application for the visa while in the migration zone; and

(c)    the decision was not made when the non-citizen:

(i)    was in immigration clearance.

…

23.    The Applicant’s circumstances fall within sub-ss.338(a), (b) and (c)(i) of the Act. Accordingly, the decision of the delegate was an MRT reviewable decision. The consequence of this, is that the delegate’s decision was a primary decision within the meaning of s.476(2)(a) of the Act, and the Court has no jurisdiction to deal with the Applicant’s application pursuant to s.476(2).

9    As the applicant was self-represented and claimed that she was not notified of the delegate’s decision until 22 February 2015, the Federal Circuit Court, although it was not necessary in view of the decision that the Court had no jurisdiction, examined the notification provisions under the Act.. The Federal Circuit Court noted at [18] that the applicant:

…said that she was only sent the decision again by email because she had taken steps to inquire with the Minister’s case officer or delegate as to what was happening with her case.

10    The Federal Circuit Court then explained the notification provisions under the Act:

25.    … The starting point is s.66(1) of the Act, which provides that:

When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.

26.    Regulation 2.16(1) of the Regulations provides:

For subsections 66(1) and 501G(3) of the Act (which deal with giving notice of decisions), this regulation sets out the way of notifying a person of a decision to grant or refuse to grant a visa.

27.    The following subsections deal with the various means by which the Minister or the delegate of the Minister can notify a person of a decision. Sub-regulation 2.16(2D) of the Regulations is the relevant provision. It states:

If none of the subregulations (2) to (2C) applies –

(and they do not in this case –)

the Minister must notify the applicant of the grant of the visa by: (a) telling the applicant orally that the visa has been granted; or (b) notifying the applicant by one of the methods specified in section 494B of the Act.

28.    Turning to s.494B of the Act - ‘Methods by which the Minister gives Documents to a Person’. The relevant subsection is s.494B(5) of the Act, ‘Transmission by fax, email or other electronic means’:

Another method consists of the Minister transmitting the document by:

…

(b) email;

…

to:

(d) The last fax number, email address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents.

29.    Now, in the course of explaining to the Applicant the nature of these proceedings, I did have cause to take her to her application for the visa and, in particular, to question 12 (CB 2), which asks:

Do you agree to the department communicating with you by fax, email or other electronic means?

30.    She ticked the box “yes” and she gave an email address, which I confirmed with her, was the same email address which was set out in the delegate’s correspondence to the Applicant notifying her of the refusal to grant her the visa.

31.    Turning to the delegate’s correspondence notifying her of the refusal to grant the visa (CB 104), on the left-hand side after the date of the decision, 22 January 2015, her address and various details, there is a reference to “Transmission Method”. On the right-hand side, it states “Email sent to”, and the Applicant has confirmed that this was her email address, and it certainly corresponds to the email address that she notified the Department that they could communicate with her in her visa application. The consequence of this, is that the method that the Applicant chose for the Minister to notify her, was by email address.

32.    Section 494C of the Act is now the relevant section, and it deals with when a person is taken to have received a document from the Minister.

33.    I explained to the Applicant, that pursuant to this section, where the Minister sends a document in accordance with that section, then whatever happens on her end – in her case, she said she didn’t receive the email – the effect of the statutory provisions is that she is taken to have received it.

34.    So the relevant part of is sub-s.494C(5) of the Act, which states:

If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.

35.    I did indicate to the Applicant that this sometimes has, what seems to be, an unfair or arbitrary effect, but that is the way the legislation applies. So in the case of the Applicant, the decision of the delegate, having been transmitted electronically by email to her last email address on the Department’s records, which was the email address which she set out in her application for the visa, the Applicant is taken to have received that decision on 22 January 2015, no matter what else the Applicant says.

11    As a consequence, the Federal Circuit Court dismissed the application with costs fixed at $3,416.

12    Then, on 20 April 2016, the applicant filed the application in this Court. The essence of her claim was, as previously mentioned, found in her affidavit as follows:

I want justice with the jurisdiction errors by the immigration delegate, and he declined my application for New Zealand citizen partnership.

13    On 29 April 2016, the respondent filed a Notice of Objection to Competency in this Court, which stated:

1.    The application seeks to invoke this Court’s original jurisdiction to hear an application for judicial review of a decision made by a delegate of the Respondent on 22 January 2015.

2.    The delegate’s decision was a “migration decision’ within the meaning of s 5 of the Migration Act 1958 (Cth) (Act) and a “primary decision’ within the meaning of s 476 of the Act.

3.    Section 476A of Act provide that this Court only has jurisdiction in relation to certain types of migration decisions. The Court does not have jurisdiction in relation to a “primary decision”.

4.    Therefore, this Court does not have jurisdiction to hear the underlying application for judicial review.

14    The applicant asks this Court to review the decision of the delegate. That request was repeated orally in submissions made by the applicant to the Court when the matter first came on for hearing on 29 April 2016. However, the Federal Court does not have original jurisdiction to do that. Section 476A of the Act provides for the jurisdiction of the Court in migration matters. It lists the instances in which the Court has original jurisdiction and expressly limits that jurisdiction to those cases. The present case was a Tribunal reviewable decision within the meaning of s 338(2) of the Act. Such a decision is not listed in s 476A of the Act as a decision which the Court has jurisdiction to review. The scheme of the Act is that the delegate’s decision is reviewable by the Tribunal. The applicant sought such a review, but was out of time. The Tribunal had no jurisdiction to extend that time.

15    As the applicant was self-represented, after the matter first came on for hearing, the Court indicated to the respondent that it might address two further issues, namely, (a) whether the applicant in fact seeks review of the Tribunal’s decision and (b) whether there is sufficient evidence to show that the applicant was notified of the delegate’s decision on 22 January 2015.

16    As to the first issue, the respondent filed an affidavit sworn by Christopher Edward Andrew Hibbard on 2 May 2016. That affidavit exhibited a letter dated 25 August 2015 to the applicant in respect of the Federal Circuit Court application and stated:

Your application to the Federal Circuit Court seeks judicial review of a decision of a delegate of the Minister for Immigration and Border Protection. That decision is a “primary decision” within the meaning of section 476(4) of the Migration Act 1958 (Cth) (Act). Under section 476(2)(a) of the Act, the Court has no jurisdiction to determine your application.

We are therefore instructed to invite you to discontinue your application. If you discontinue your application by 4.00 pm on 11 September 2015, the Minister is prepared to bear his own costs of the proceeding. If you do wish to discontinue, please sign the enclosed Notice of Discontinuance and file it with the Federal Circuit Court.

Alternatively, you may wish to seek judicial review of the Migration Review Tribunal’s decision on your application dated 16 April 2015. In or view, the Federal Circuit Court does have jurisdiction to consider an application for judicial review of that decision. If you wish to amend your application to seek review of the Tribunal’s decision, please sign the enclosed consent orders and return them to us, marked to the attention of Christopher Hibbard, before 4.00 pm on 11 September 2015. You will also need to file an amended application that seeks review of the Migration Review Tribunal’s decision.

17    On the following day, 26 August 2016, the applicant responded by email as follows:

Thank you for getting back to me,,, I want to do things myself for the reason that I can not afford to pay a lawyer. My application is against the decision made by the immigration officer,,,unfortunately when I enquired to immigration about the update of my application with them then they resend the decision they declined my application, that when I learned of the declined application already the time frame for a appeal to tribunal immigration finished. So, I am going to court against the decision made my[sic] the officer immigration that declined me,,,i had explained everything to court and paid the application.

For my security and rights I may consider to discontinue if only I will be given a right to be heard from the tribunal immigration,,if that will not happen then is no use to discontinue but to go on,,, i am against a commonwealth person who decision was not fair.

18    After a further explanation by Mr Hibbard in an email to the applicant on the same day, she sent another email that day reiterating her position thus:

I understood all where you come from ,,, I am not against Immigration tribunal ,, I am against fairness and justice from the commonwealth servant which is the delegate’s decision ,, my view that the court I filed this will hear my case for fairness and justice.. I will try for a legal advise as you mentioned.

19    It was thus made clear to the applicant that she had a right to challenge the Tribunal decision in the Federal Circuit Court.

20    Despite the guidance offered by Mr Hibbard, the applicant determined that she would continue seeking relief against the delegate’s decision. Thus she made an informed decision to challenge the delegate’s decision and not the decision of the Tribunal.

21    The second matter concerning notification would have arisen if the applicant had challenged the Tribunal decision in the Federal Circuit Court. Although it was not necessary for the Federal Circuit Court to do so, acknowledging that the applicant was self-represented, it explained that the evidence demonstrated that the decision of the delegate was dispatched by email on 22 January 2015, and that it was immaterial under the legislation whether the applicant had received it.

22    It may be that the evidence referred to by the Federal Circuit Court did not prove dispatch of the email. However, the respondent filed two affidavits in response to the invitation extended by the Court in this application, one by Michael Van Bockxmeer sworn 2 May 2016 and the other by Anna Rudic sworn 2 May 2016. These affidavits established, by reference to an analysis of the reports in the IT system of the Department, that the email was sent by the Department on 22 January 2015 to the email address provided by the applicant.

23    It follows from these reasons that the application must be dismissed with costs.

24    Mr Hibbard, acting on behalf of the respondent, has demonstrated a high degree of cooperation with the Court to ensure that the applicant as a self-represented litigant was not prejudiced by any lack of legal knowledge. He should be commended for his conduct in this application.

25    Unfortunately, the applicant has found it difficult to accept that the root cause of her problem is the statutory requirement that in order to obtain the visa she wants, her husband had to be in Australia when she applied for the visa. At the relevant time, he was not in Australia. That is a statutory requirement which does not allow for any flexibility in the circumstances which confronted the applicant.

Associate:

Dated:    25 May 2016