FEDERAL COURT OF AUSTRALIA

CQP15 v Minister for Immigration and Border Protection [2017] FCA 854

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed pursuant to r 36.75 of the Federal Court Rules 2011 (Cth).

2.    The appellant pay the first respondent’s costs of the appeal, as agreed or taxed.

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

REASONS FOR JUDGMENT

KENNY J:

1    This is an appeal from a judgment of the Federal Circuit Court of Australia (FCCA) dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal held that it did not have jurisdiction to hear and determine the appellant’s application for review of a decision of a delegate of the Minister to refuse to grant a protection visa (the visa) under s 65 of the Migration Act 1958 (Cth) (Migration Act).

2    The appellant did not appear at the hearing on 26 July 2017. The first respondent was represented by his lawyer.

Application for an order under r 36.75

3    The first respondent applied for an order under r 36.75 of the Federal Court Rules 2011 (Cth) (Federal Court Rules) that the appeal be dismissed. That rule relevantly provides that if the appellant is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that the appeal be dismissed. The following circumstances are relevant to my conclusion that it is appropriate to proceed in the appellant’s absence as contemplated by r 36.75 of the Federal Court Rules.

4    The matter was initially listed for hearing on 20 February 2017. The appellant attended that hearing. As a result of an interpreter not being present, the hearing was adjourned to a date to be fixed.

5    The matter was subsequently listed for hearing at 2.15 pm on 31 March 2017. The appellant was advised of the hearing date by email, and he attended that hearing. On the application of the appellant, the hearing was adjourned to enable him to seek legal advice. Ultimately, the appellant was referred for legal assistance under r 4.12 of the Federal Court Rules on 9 May 2017. Since then, however, the Court and counsel who accepted the pro bono referral have not received any communication from the appellant, and attempts to contact him have been unsuccessful.

6    The attempts of my Chambers staff to contact the appellant include the following. On 18 April 2017 an email was sent from my Chambers to the parties informing them that the matter was listed for directions on 9 June 2017 at 2.15 pm. On 5 May 2017 the appellant replied to that email, and outlined his personal circumstances. My associate responded to that email to confirm receipt and to remind the appellant that the matter remained listed for directions on 9 June 2017 at 2.15 pm.

7    On 9 May 2017 my associate emailed the appellant to advise that, in the circumstances, the Court had determined to refer him for legal assistance. The email reminded the parties that, subject to any notification from them, the matter remained listed for directions on 9 June 2017 at 2.15 pm.

8    On 5 June 2017 a further email was sent from my Chambers to the parties to remind them that the matter was listed for directions on 9 June 2017 at 2.15 pm. An email in similar terms was sent in the morning of 8 June 2017. On 8 June 2017, my associate also called the mobile number listed on the appellant’s notice of appeal. The call went straight to a voice message bank. A voice message was left reminding the appellant of the directions hearing date and time and that it was important that he attend.

9    At the directions hearing on 9 June 2017 the appellant did not appear. An order was made on that day fixing the appeal for hearing at 2.15 pm on 26 July 2017.

10    The appellant was informed by email from Chambers staff, following the directions hearing on 9 June 2017, that the matter had been listed for hearing at 2.15 pm on Wednesday 26 July 2017. The email reminded him that it was important that he attend, and that if he did not attend the hearing might proceed in his absence.

11    I note here that, as counsel who had accepted the pro bono referral had been unable to make contact with the appellant, on 18 July 2017 a Registrar of the Court granted leave for the pro bono counsel to cease providing legal assistance under the referral issued on 9 May 2017.

12    On 19 July 2017 my associate emailed the appellant to remind him that the matter was listed for hearing at 2.15 pm on Wednesday 26 July 2017. The email reminded the appellant in particular that it was important that he attend, and that if he did not attend the hearing might proceed in his absence.

13    On 25 July 2017, Chambers staff called the mobile number listed on the appellant’s notice of appeal. The call went straight to a voice message bank. Chambers staff left a voice message reminding the appellant of the hearing date and time and that it was important that he attend.

14    The appellant has not notified the Court of any change in his contact details. On the basis of the above, it appears that the appellant should have received adequate notice of today’s hearing. He has also had a number of opportunities to seek legal advice, either from a lawyer of his choosing, or from the counsel who accepted the Court’s pro bono referral. The appellant has not advised the Court that he would have any difficulty in attending the hearing today and he has not sought any postponement of the hearing.

15    In these circumstances I would order, pursuant to r 36.75 of the Federal Court Rules, that the appeal be dismissed. Further, there is nothing disclosed on the court file that indicates the appeal would have any real prospect of success if it remained on foot.

Background to the appeal

16    The filed material disclosed that the appeal was brought in the following circumstances.

17    In May 2015, with the assistance of a representative, the appellant applied for a protection visa on the basis of a claimed fear of persecution in India and need for protection as he had converted from Sikhism to Christianity. The appellant’s visa application was refused by a delegate of the Minister on 16 July 2015 on the basis that the appellant did not satisfy s 36(2) of the Migration Act.

18    On 16 July 2015 the Department sent a letter, also dated 16 July 2015, by registered post to the address that the appellant had provided for receipt of correspondence, being the address of his migration agent, notifying the migration agent, Mr M I Chaudhry, that he had been authorised to receive correspondence on behalf of the appellant. A letter also dated 16 July 2015 and addressed to the appellant accompanied the letter to Mr Chaudhry. The letter to the appellant advised him that his application had been refused and that he was entitled to apply to the Tribunal for a merits review of the decision within the prescribed timeframe, which was seven working days from the day on which he received the notification.

19    The appellant lodged an application for review with the Tribunal on 7 September 2015, well outside the requisite seven-day period. The Tribunal sent a letter to the appellant’s representative, Mr Chaudhry, on 15 September 2015, attaching a letter to the appellant inviting him to comment on the validity of his application. The letter to the appellant read, relevantly:

I am of the view that your application is not a valid application as it was not lodged within the relevant time limit. The time limit is 7 working days from the day on which you are taken to have been notified of the primary decision. The primary decision was posted to your authorised recipient on 16 July 2015 and, on the basis that 27 July 2015 was the date on which you are taken to have been notified, the last day for lodging the application for review was 5 August 2015. As the application was not received until 7 September 2015, it appears to be out of time.

20    The appellant’s migration agent provided submissions in response by letter dated 23 September 2015. Those submissions stated that the appellant was in immigration detention when the migration agent received the notice of the delegate’s decision, by which time there were two days left for the appellant to apply for review. The migration agent stated that unsuccessful efforts had been made to contact the appellant, and when the appellant did contact the migration agent and gave his instructions to apply for review, the agent did so. The migration agent also stated:

We are aware that the application for review was lodged at a later date than required. It was due to these unavoidable circumstances.

21    The Tribunal was satisfied that the appellant was notified of the delegate’s decision “in accordance with the statutory requirements”, by letter dated 16 July 2015, dispatched by post to his agent. The Tribunal stated that it had considered the submissions made by the appellant’s migration agent on his behalf. The Tribunal went on to state that:

However, the Tribunal notes that it does not have discretion in considering whether or not the applicant should be permitted to lodge his application after the prescribed period. The Tribunal is not permitted to grant an extension of time to lodge an application for review.

22    The Tribunal held that the appellant was deemed to have been notified of the decision of the delegate on 27 July 2015 by operation of s 494C of the Migration Act. Accordingly, the Tribunal found that the prescribed period within which an application for review could be made ended on 5 August 2015. As the appellant’s application was not received by the Tribunal until 7 September 2015, the application was not valid and the Tribunal concluded that it had no jurisdiction.

Primary proceedings

23    On 26 November 2015, the appellant instituted a proceeding in the FCCA, for judicial review of the Tribunal’s decision under s 476 of the Migration Act. As at that date, his application for judicial review was out of time; and he also made application for an extension of time under s 477 of the Migration Act to apply for review of the Tribunal’s decision. Section 477 sets time limits for a judicial review application made under s 476. It provided that: an application must be made within 35 days of the migration decision (s 477(1)); and the Court might extend time if application were made in writing and the Court were satisfied that it is necessary in the interests of the administration of justice to make the order (s 477(2)).

24    The appellant’s judicial review application set out the following grounds of application for an extension of time:

1.    My lawyer didn’t told me on time.

2.    Immigration also didn’t told me on time.

3.    My lawyer didn’t pick my phone.

25    The grounds for judicial review were stated to be:

1.    I plead for an order not to remove me from Australia

2.    My lawyer didn’t send me any email he didn’t try to contact me. The immigration said they can’t me any information about my case, they told me ask my lawyer

3.    I have son which is 9 months old I didn’t see him.

4.    I have more evidence and more information for fair complimentary protection review

5.    There are some jurisdictional errors in the decision.

26    The primary judge extended the time for the appellant to apply to the FCCA, but dismissed the appellant’s judicial review application with costs.

27    The primary judge noted that under the Migration Act “the time limit for an application to the AAT was determined by a combination of sections 412 and 494C(4)”: see CQP15 v Minister for Immigration [2016] FCCA 2398 at [3]. His Honour further noted that it was “not in question that the [notification letter of 16 July 2015] was dispatched from a place in Australia to an address in Australia” (at [4]). His Honour observed that, in this circumstance, the terms of s 494C(4) of the Migration Act provided that if an applicant was “notified by prepaid post or prepaid means the person is taken to have received the document ... seven working days after the date of the document”. His Honour concluded (at [4]):

So, assuming the [notification letter of 16 July 2015] was dispatched on 16 July 2015, the applicant is taken to have received the document on 27 July 2015. The time for the application to the Tribunal was 7 working days from that date, that is, 5 August 2015.

28    Whilst the primary judge noted that there was “no evidence from within the body of the Tribunal’s decision about the date the document was dispatched by prepaid post to the applicant”, his Honour also noted (at [5]) that:

However, at paragraph 4 of the decision, it was said that the material before the Tribunal indicates that the applicant was notified of the decision by letter dated 16 July of 2015 and dispatched by post. The Tribunal went on to say that it was satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

29    The primary judge emphasised that the applicant in that Court, the appellant in this appeal, did not challenge the Tribunal’s finding or conclusion at this point. His Honour added that, “absent a challenge to that [finding]”, his Honour accepted as correct the Tribunal’s statement that the material was posted on 16 July 2015. The appellant’s application for review to the Tribunal was, accordingly, out of time. Referring to SZUQF v Minister for Immigration and Border Protection [2015] FCA 1409, his Honour held that “there is no provision for an extension of time, however deserving an applicant might be” (at [11]). It followed, so his Honour held, that the Tribunal had no jurisdiction to hear and determine the appellant’s application for merits review of the delegate’s decision not to grant the visa.

30    Notwithstanding this conclusion, the primary judge nonetheless decided that it was in the interests of justice to extend the time in which to seek judicial review of the Tribunal’s decision. His Honour concluded (at [16]):

Given the circumstances of the applicant and particularly his long period in immigration detention, the relatively short delay in making the application and the absence of prejudice, I will extend the time but dismiss the application with costs.

Grounds of appeal and the parties’ submissions

31    Under the heading “Grounds of appeal” the appellant’s notice of appeal stated:

1.    There are some jurisdictional errors in Immigration decision.

2.    The Immigration deprived me of natural Justice.

3.    The Immigration member made an error of law for not considering my relevant document which are important in my case.

4.    The Immigration member made an error of law by considering evidence which are significant and critical to the decision under review.

5.    Failure to consider relevant Information and paying regards to irrelevant information.

6.    Unreasonableness and Unfairness of Procedures, as failure in accept original documents and Unwillingness and disregard to further investigate its veracity.

32    The first respondent, though not the appellant, has filed written submissions in the appeal.

33    The first respondent submitted that both the Tribunal and the FCCA were correct to find that the Tribunal did not have jurisdiction in respect of the appellant’s application to the Tribunal, and had no power to extend time or otherwise enliven the Tribunal’s jurisdiction. The appellant’s grounds of appeal, the first respondent submitted, did not demonstrate any error in the decision of the Tribunal or the FCCA.

Discussion of the appeal

Relevant legislation

34    Section 66(1) provided that “[w]hen the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way”. For the purposes of s 66(1), reg 2.16(3) of the Migration Regulations 1994 (Cth) (Migration Regulations) specified that “[t]he Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act”.

35    Section 494B of the Migration Act relevantly provided as follows:

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.

36    Section 494C of the Migration Act relevantly provided as follows:

(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.

37    Section 494D provided:

(1)    If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to receive documents in connection with specified matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents in connection with those matters that the Minister would otherwise have given to the first person.

Note:     If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.

(2)    If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. However, this does not prevent the Minister giving the first person a copy of the document.

…

38    Section 412(1)(b) of the Migration Act relevantly provided that “[a]n application for review of Part 7-reviewable decision must… be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision”. Regulation 4.31(1) of the Migration Regulations provided as follows:

For paragraph 412(1)(b) of the Act, if an applicant is in immigration detention on the day the applicant is notified of a Part 7-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 7 working days, commencing on:

(a)    the day the applicant is notified of the decision; or

(b)    if that day is not a working day—the first working day after that day.

Applying the law to the circumstances of the case

39    At the time the appellant completed his application for a protection visa, the appellant and his migration agent also signed a form 956, “Advice by a migration agent/exempt person of providing immigration assistance”, indicating that the migration agent, Mr Chaudhry, was appointed to act for him and that the “Address for correspondence” was an address in Auburn, New South Wales. This form was submitted to the Department with the appellant’s protection visa application.

40    Shortly after receiving the appellant’s application and the completed form 956, the Department wrote, by letter dated 8 May 2015, to Mr Chaudhry at the address stated in the form 956 stating that he had been authorised to receive correspondence on behalf of the appellant. Another letter also dated 8 May 2015 and addressed to the appellant accompanied the Department’s letter of 8 May to Mr Chaudhry, advising that the validity of the application was accepted. The same procedure was adopted by letters dated 11 May 2015, where one letter advised Mr Chaudhry that he had been authorised to receive correspondence for the appellant and another letter addressed to the appellant advised of a step (namely, an interview) in the process of considering his protection visa application.

41    By a letter dated 16 July 2015 addressed to Mr Chaudhry at the Auburn address and sent by registered prepaid post, Mr Chaudhry was again notified that he had been authorised to receive correspondence on the appellant’s behalf, whilst a further accompanying letter also dated 16 July 2015 addressed to the appellant advised the appellant that his protection visa application had been refused. A copy of the decision record of the delegate’s decision was attached to this latter letter.

42    The appellant was deemed to have been notified of the decision on 27 July 2015 (that is, seven working days from the date of the letter) under s 494C(4) of the Migration Act. This was because the notification letter of 16 July 2015 was dispatched by prepaid post from a place in Australia to an address in Australia and, pursuant to s 494D(2), the Minister was taken to have given the notification letter to the appellant, having acted in conformity with s 494(1) requiring the Minister to give the notification letter to Mr Chaudhry instead of the appellant. Further, since the appellant was in immigration detention, reg 4.31(1) of the Migration Regulations applied and, in consequence, any application for review of the decision had to be made within seven days of the day that the appellant was notified. Accordingly, and as the Tribunal found, the prescribed period within which the appellant could apply for review ended on 5 August 2015. There was no dispute before the Tribunal or the FCCA that the application to the Tribunal was made on 7 September 2015. As a result, the appellant’s application for review by the Tribunal was not a valid application because it did not comply with the requirements of s 412 of the Migration Act. This is the effect of s 412, in conformity with the Full Court’s decisions in Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324; 97 FCR 407 at [18] and [31] (Heerey J) and [44] (Finkelstein J) and VOAW v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 251 at [4]: see also SZRLH v Minister for Immigration and Citizenship [2013] FCA 384 at [14] (Robertson J).

43    The Migration Act does not permit any extension or variation of the period provided for by reg 4.31(1): see NACG v Minister for Immigration and Multicultural Affairs [2002] FCAFC 173 at [7]; and Minister for Immigration and Border Protection v ASE15 [2016] FCAFC 37; 237 FCR 460 at [48].

44    It would follow that the Tribunal correctly held that it did not have jurisdiction to review the delegate’s decision and there was no error on the part of the primary judge in the FCCA. It was most unfortunate that, through no apparent fault of the appellant, his application was not received in time. The result is, however, that the Tribunal could not undertake the review of the delegate’s decision that he sought.

45    In broad terms, the appellant’s grounds of appeal allege a failure to provide the appellant natural justice or procedural fairness, a failure to consider documents, information or evidence, having regard to irrelevant information and unreasonableness. In so far as they involve the claim that the Tribunal was wrong to decline to undertake merits review of the delegate’s decision, the claim must apparently fail, for the reasons stated.

46    To the extent that the grounds are intended to support an argument that the Tribunal deprived the appellant of natural justice or procedural fairness, such an argument would appear to have no merit and the primary judge’s decision apparently involved no error in this regard. The Tribunal invited him to make submissions and it took into account the submissions that were provided by his representative on his behalf. Furthermore, the appellant has not identified any documents, information or evidence that the Tribunal ought to have considered and did not; nor has he identified any information that the Tribunal took into consideration and ought not to have done. The appellant has also proposed no basis for any contention that the Tribunal’s decision was relevantly unreasonable. None is discernible.

47    For the reasons stated, I would dismiss the appeal pursuant to r 36.75 of the Federal Court Rules. It also seems to me appropriate that, in the circumstances to which I have referred, there should be an order that the appellant pay the first respondent’s costs, as the first respondent has sought.

Associate:

Dated:    27 July 2017