FEDERAL COURT OF AUSTRALIA

CCK15 v Minister for Immigration and Border Protection [2016] FCA 1084

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time to file a notice of appeal be dismissed.

2.    The applicant pay the first respondent’s costs as taxed or agreed.

3.    In lieu of proceeding to taxation or reaching agreement as to the first respondent’s costs, the first respondent may, within 7 days, elect to file and serve an application by way of an affidavit for a fixed costs order pursuant to s 43(3)(d) of the Federal Court of Australia Act 1976 (Cth). If the first respondent does make such an application, the applicant be given a further 7 days in which to file any affidavit or submission in opposition to a fixed costs order being made. If any such application is made, whether or not it is opposed, the determination of the application will be made on the papers in Chambers.

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

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1    This is an application for an extension of time to file a notice of appeal from orders made by a judge of the Federal Circuit Court of Australia on 17 February 2016, by which his Honour dismissed an application to review a decision of the Administrative Appeals Tribunal. His Honour ordered that the applicant pay the first respondent’s (the Minister’s) costs and disbursements fixed in the sum of $5,800.

2    On 6 October 2015, the Tribunal had decided that the application made to it for a review of the decision of a delegate of the Minister not to grant the applicant a protection visa was made out of time, and therefore it did not have jurisdiction to conduct the review sought.

3    For the reasons that follow, the application for an extension of time to file a notice of appeal must be dismissed with costs.

History of the proceedings

4    On 12 May 2014, the applicant, a citizen of the People’s Republic of China, arrived in Australia on a visitor’s visa granted on 28 April 2014.

5    On 19 June 2014, the applicant lodged an application for a protection visa. The application provided a residential address. That address was in the Sydney CBD. The application also provided a postal address, also in the Sydney CBD.

6    The protection visa application was supported by a four-page typewritten statement in English in the applicant’s name, marked as an accredited translation from Chinese. The statement advanced a claim for a protection visa based on an allegation of a forced abortion of a pregnancy due to the enforcement of China’s one-child policy.

7    On 25 June 2014, the Department wrote to the applicant at her postal address, advising her that her application had been accepted as valid and that processing her application had begun. She was asked to provide certain information. No such information was apparently ever provided, despite the applicant later acknowledging receiving this letter.

8    On 24 February 2015, eight months after the initial request for further information, the Department again wrote to the applicant, by registered mail to her nominated postal address, inviting her to attend an interview on 16 March 2015. The applicant did not attend that interview.

9    On 16 March 2015, a delegate of the Minister proceeded to decide the protection visa application on the information that had already been provided. The delegate refused the grant of a protection visa. The delegate’s reasons noted the applicant’s failure to attend the interview and observed that without the benefit of that interview it had not been possible to verify details of her personal circumstances, or to ascertain whether any of the claims made were well-founded.

10    The delegate’s reasons identified the sorts of matters that would have been raised at an interview to enable credibility findings to be made, such as why the applicant was seeking protection in Australia, what happened to her in China, her employment history, who she said would harm her and why, what she feared if she returned to China, why she did not provide any documentary evidence or other information (as requested in the 25 June 2014 letter referred to above) and the availability of state protection and possible relocation. In short, the delegate was simply unable to reach the necessary state of satisfaction required for the grant of the visa sought by the applicant.

11    The delegate’s reasons also noted that there was nothing on the file to indicate any change of correspondence or contact details for the applicant.

12    On 16 March 2015, the same day as the delegate’s decision, a letter was sent to the applicant’s nominated postal address by registered mail, advising of the refusal to grant a protection visa and enclosing a copy of the delegate’s decision record.

13    On 7 April 2015, the 16 March 2015 letter was returned to the Department, marked as being unclaimed. Plainly, the delegate’s decision record was not just sent, but was also received at the address provided by the applicant, albeit that she did not collect it.

14    On 3 August 2015, the Department received a letter from the applicant dated 29 July 2015 which acknowledged receipt of its initial 25 June 2014 letter (i.e., from over a year earlier) and stated “I worked at West Australia, but I often return and check my PO Box”. The letter sought a copy of any other letters that had been sent.

15    On 1 September 2015, the Tribunal received an application for review sent by the applicant by registered mail. The application provided a residential address in the suburbs of Sydney, nominated the same postal address as the original visa application, referred to the 16 March 2015 letter from the Department and was accompanied by a copy of the delegate’s decision record.

16    On 2 September 2015, the Tribunal sent a letter to the applicant, enclosing a review application receipt and advising that the validity of the application had not yet been assessed.

17    On 9 September 2015, the Tribunal wrote again to the applicant, advising that, although required to be decided by a Tribunal member, the application for review was not apparently valid because it had been lodged outside the 28-day time limit from the date upon which she was taken to have received and therefore been notified of the delegate’s decision.

18    Because the delegate’s decision was posted on the day it was made and dated, being 16 March 2015, and was therefore dispatched within 3 working days of its date, the applicant was taken to have received the document 7 working days after its date, namely on 25 March 2015: s 494C(4)(a) of the Migration Act 1958 (Cth), quoted below. The 28 day review application period therefore expired no later than 23 April 2015 (that is, not counting Good Friday and Easter Monday, although there does not appear to be any reason not to count those days, in which case the actual expiry of the 28 days took place on 21 April 2015; whether the correct deadline was 21 or 23 April 2015 makes no difference in the circumstances of this case).

19    On 21 September 2015, the Tribunal received a letter from the applicant dated 16 September 2015, which was addressed to the author of the 9 September 2015 Tribunal letter but referred by date to the 2 September 2015 Tribunal letter. The applicant’s letter referred to checking her post office box, finding out that mail had been returned to the Department (which supports an inference that the applicant’s checking was not being carried out regularly or frequently enough), and being sent a further copy of the delegate’s decision record. The letter referred to lodging an application for review, rather than to the application already lodged three weeks earlier, but was evidently treated as seeking to have the existing application for review acted upon.

20    On 7 October 2015, the Tribunal again wrote to the applicant, advising her that it had decided that it had no jurisdiction to determine her application and therefore could not review the delegate’s decision. The letter enclosed the Tribunal’s 6 October 2015 reasons for reaching that conclusion.

21    The reasons of the Tribunal for finding that it did not have jurisdiction to determine the application for review identified the provisions dealing with deemed notice of a delegate’s decision in ss 412(1)(b) and 494C of the Migration Act and r 4.31 of the Migration Regulations 1994 (Cth), the relevant portions of which as at 16 March 2015 (the date of the delegate’s decision) provided as follows (notes omitted):

Migration Act 1958 (Cth)

412    Application for review by the Refugee Review Tribunal

(1)    An application for review of an RRT-reviewable decision must:

(a)    be made in the approved form; and

(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; and

(c)    be accompanied by the prescribed fee (if any).

(2)    An application for review may only be made by the non-citizen who is the subject of the primary decision.

(3)    An application for review may only be made by a non-citizen who is physically present in the migration zone when the application for review is made.

(4)    Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of RRT-reviewable decisions (which may be decisions that relate to non-citizens in a specified place).

494A    Giving documents by Minister where no requirement to do so by section 494B method

(1)    If:

(a)    a provision of this Act or the regulations requires or permits the Minister to give a document to a person; and

(b)    the provision does not state that the document must be given:

(i)    by one of the methods specified in section 494B; or

(ii)    by a method prescribed for the purposes of giving documents to a person in immigration detention;

the Minister may give the document to the person by any method that he or she considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section).

…

494B    Methods by which Minister gives documents to a person

Coverage of section

(1)    For the purposes of provisions of this Act or the regulations that:

(a)    require or permit the Minister to give a document to a person (the recipient); and

(b)    state that the Minister must do so by one of the methods specified in this section;

the methods are as follows.

…

Dispatch by prepaid post or by other prepaid means

(4)    Another method consists of the Minister dating the document, and then dispatching it:

(a)    within 3 working days (in the place of dispatch) of the date of the document; and

(b)    by prepaid post or by other prepaid means; and

(c)    to:

(i)    the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or

(ii)    the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; or

(iii)    if the recipient is a minor—the last address for a carer of the minor that is known by the Minister.

494C    When a person is taken to have received a document from the Minister

(1)    This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A).

…

Dispatch by prepaid post or by other prepaid means

(4)    If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:

(a)    if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or

(b)    in any other case—21 days after the date of the document.

…

Migration Regulations 1994 (Cth)

4.31    Time for lodgement of application with Tribunal

…

(2)    For paragraph 412(1)(b) of the Act, if an applicant is not in immigration detention on the day the applicant is notified of an RRT-reviewable decision, the period in which an application for review of the decision must be given to the Tribunal by or for the applicant is 28 days, commencing on the day the applicant is notified of the decision.

22    On 14 October 2015, the applicant filed an application for review of the Tribunal’s decision in the Federal Circuit Court of Australia. That application was subsequently heard by the primary judge on 17 February 2016, and dismissed the same day, with costs.

Proceedings in this Court

23    Rule 36.03 of the Federal Court Rules 2011 (Cth) provides that a notice of appeal must be filed within 21 days after the date on which the judgment appealed from is pronounced or order made, or the date on which leave to appeal was granted, or on or before such other date as is fixed for that purpose by the Court appealed from. No other date was fixed and no leave to appeal was previously granted. Any notice of appeal was therefore required to be filed by 9 March 2016.

24    On 29 March 2016, the applicant filed an application for an extension of time to file a notice of appeal in this Court. That application was accompanied by the simultaneous and concurrent filing of a supporting affidavit to which was annexed a draft notice of appeal. The affidavit deposed to the applicant not being aware of the limitation period and to using the wrong form. While the draft notice of appeal made reference to the applicant’s claims of a forced pregnancy and referred to the late application for review to the Tribunal, the supporting affidavit only referred to apparently new claims concerning the applicant and her mother practicing Falun Gong and what she said had happened as a consequence, including conduct by Chinese authorities.

25    The Full Court has relatively recently confirmed that the factors which the Court should generally take into account in determining whether to grant an extension of time include the length of delay and whether there is an acceptable explanation, the merits of the appeal, and any prejudice to the opposing party, although the mere absence of prejudice is not sufficient: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]; see also AAQ15 v Minister for Immigration and Border Protection [2016] FCA 963 at [12].

26    The delay in filing the application and draft notice of appeal was relatively small, and although this remained unexplained, it was not suggested in the Minister’s submissions that this of itself was a sufficient reason to refuse an extension of time if the application was otherwise meritorious. The Minister’s written submissions also properly conceded that there was no relevant prejudice beyond the costs of defending an appeal that lacked merit. The main barrier advanced by the Minister to the grant of an extension of time was the asserted lack of merit in the proposed appeal, which in turn relies upon the prospects of the underlying application for review succeeding.

27    The draft notice of appeal:

(1)    described what the applicant says happened to her in China;

(2)    recorded the delegate’s lack of satisfaction as to there being any protection obligations;

(3)    noted the refusal of the Tribunal to consider her application for review by reason of being out of time;

(4)    recorded her conversations with the Department;

(5)    described the Tribunal’s decision as “unfair making jurisdictional error”; and

(6)    recorded the fact that her application to the Federal Circuit Court had been dismissed.

No error on the part of the Tribunal was identified other than unfairness. No error on the part of the primary judge was suggested.

28    Although no express challenge was made to the Tribunal’s reasons in relation to deemed notification of the delegate’s decision, and therefore the conclusion reached that the application for review to the Tribunal was not valid and the Tribunal therefore did not have jurisdiction to review the delegate’s decision, I nonetheless observe that the conclusion reached by the Tribunal appears unassailable.

29    As was pointed out in NACG v Minister for Immigration & Multicultural Affairs [2002] FCAFC 173 at [8], the inexorable and inevitable result of not complying with the statutory regime, as has happened in this case, is that the time for applying for merits review of the delegate’s decision had indeed expired despite any assertions as to whether in fact notification was received.

30    As was pointed out by the Full Court in Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 77 at 82 [17], in relation to a similar, although since repealed, deemed notification regime, and by reference to a long line of cases on this issue:

… the statutory provisions operated to deem notification of the decision of the delegate of the Minister, notwithstanding that the applicant may not have received actual notification of the relevant decision until some later time than that deemed by the Act and the Regulations or at all.

31    In Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 it was noted at [13] that:

Subsection 494C(4) does not purport to create a rebuttable presumption of fact. It provides that in certain circumstances, a person is to be ‘taken to have received the document … ’. Nothing in the section suggests that this is merely a rebuttable presumption.

See also Xie at [14]-[15] to the effect that s 494C operates according to its terms. See also SZRLH v Minister for Immigration and Citizenship [2013] FCA 384; SZULH v Minister for Immigration and Border Protection [2015] FCA 835, and more recently, Rahman v Minister for Immigration and Border Protection [2016] FCA 662 at [20] in which these cases are discussed.

32    Applying this authority, I cannot see any error on the part of the Tribunal, let alone jurisdictional error. The Tribunal had no jurisdiction to review the delegate’s decision and the primary judge was correct in deciding there was no error in that regard. As in NACG, this Court has no jurisdiction to review the Tribunal’s decision and must uphold the decision of the primary judge.

33    As there is no error on the part of the primary judge, the proposed appeal has no prospect of success. In those circumstances, the grant of an extension of time would be futile. It follows that the application for an extension of time in which to file a notice of appeal must be refused.

Conclusion

34    The application for an extension of time is refused, with costs (subject to the following paragraph).

Costs

35    Because the proceedings in this Court have not been properly brought, nor any proper ground of appeal advanced, I am of the view that this is an appropriate case in which to give the Minister the option to seek to curtail any unnecessary delay in finalising the proceedings, including as to costs. I am therefore of the view that the Minister should be given the opportunity to seek a fixed costs order if he is minded to adopt that course. Leave is therefore given for that process to be availed of, although of course that may not be an approach that commends itself to the Minister. Any such application will, after the applicant has been given an opportunity to respond, be determined on the papers in Chambers.

Associate:

Dated:    8 September 2016