FEDERAL COURT OF AUSTRALIA

CJU16 v Minister for Immigration and Border Protection [2017] FCA 1040

ORDERS

THE COURT ORDERS THAT:

1.    The affidavit of the applicant of 8 May 2017 not be made otherwise available to a non-party, unless the name of the applicant wherever appearing is obliterated and the anonymous designation ‘CJU16’ is inserted in its place, unless otherwise ordered by the Court or a Judge.

2.    The application be dismissed.

3.    The applicant pay the first respondent’s costs, which are fixed in the sum of $1,756.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    On its facts alone, but not in the application of the Migration Act 1958 (Cth) (the Act), to those facts, this is a hard case. The applicant is a citizen of Bangladesh. On 12 August 2013, he applied under the Act for that class of visa known as a Protection visa. He put his claim on the basis of membership of the Bangladesh Nationalist Party with a fear of persecution from members or supporters of the Awami League. Such persons had, he claimed, stolen money from him, beaten him and threatened him.

2    On 5 December 2014, a delegate for the Minister of Immigration and Border Protection (Minister), the only active party respondent, refused that visa application. The applicant received the Minister’s delegate’s decision on 15 January 2015. The following month, on 18 February 2015, the applicant applied to the then Refugee Review Tribunal for the review of the Minister’s delegate’s decision. In so doing, the applicant specified, on the application for review document lodged with that Tribunal, correspondence details. He supplied a street address, a mobile telephone number and an email address.

3    Subsequently, the role of the Refugee Review Tribunal was assumed by the Administrative Appeals Tribunal (the Tribunal). That Tribunal offered to the applicant, using his specified email address for that purpose, a hearing in respect of his review application on 30 June 2016. The applicant did not attend on 30 June 2016 at the specified time and place for his invited hearing, as given to him via email by the Tribunal. Because of this, the Tribunal, on 30 June 2016, dismissed his review application pursuant to s 426A(1A)(b) of the Act.

4    The Tribunal notified the applicant of that dismissal decision, as it was required to do by s 426B(5) of the Act. For that purpose, the Tribunal again used the applicant’s specified email address. The applicant did not, within the 14-day period concerned, apply for the reinstatement of his review application. Accordingly, on 18 July 2016, the Tribunal confirmed its decision to dismiss the applicant’s review application. The applicant did not thereafter apply to the Tribunal for the reinstatement of his review application.

5    On 29 August 2016, the applicant filed in the Federal Circuit Court of Australia (Federal Circuit Court) an application for the judicial review of the Tribunal’s dismissal decision. That application was filed just outside, but nonetheless outside, the 35-day period specified in the Act for the filing of a judicial review application in the Federal Circuit Court: s 477(1). The learned Federal Circuit Court Judge correctly appreciated that the application had been filed out of time in the Court and, accordingly, treated the application as one for an extension of time: see CJU16 v Minister for Immigration & Anor [2017] FCCA 741 at [11]. His Honour noted, and the evidence before him was, that there were no “bounce backs” in respect of any of the email correspondence from the Tribunal to the applicant. His Honour stated at [18]:

It simply is that the Applicant says he got the email. He just did not check the email. That may have the unfortunate consequences that have occurred here, but it does not mean that the actions of the Tribunal were not done according to law.

6    Section 441A of the Act sets out methods by which the Tribunal may give documents to a person other than the Secretary. These methods are cast as alternatives. One of those methods, as s 441A(5)(d) materially states, is the last email address provided to the Tribunal by the recipient in connection with the review. Section 441C of the Act provides for when a person other than the Secretary is taken to have received a document from the Tribunal sent by one of the methods set out in s 441A. The learned Federal Circuit Court Judge did not specifically refer to these particular provisions in concluding that the applicant had been notified by the Tribunal under the Act in respect of an offer of hearing, but it was on the basis that the Tribunal had complied with the Act’s notification requirements that the Federal Circuit Court dismissed the applicant’s application.

7    The Federal Circuit Court had power under s 477(2) of the Act to extend the 35-day period within which a judicial review application should be lodged. Reading the order of dismissal in conjunction with the reasons for judgment of the learned primary Judge, it seems to me that the order of dismissal is an order dismissing an application under s 477(2) for an extension of time. So characterised, and as the Minister correctly submitted, the effect of s 476A(3)(a) is that this Court does not have jurisdiction to entertain an appeal from a refusal by the Federal Circuit Court of an extension of time. That absence of jurisdiction would render it futile to grant to the applicant an extension of time, even if I were otherwise disposed to grant such an extension.

8    As it happens, and as is not uncommon in respect of applicants whose first language is not English, and who have no legal training, the applicant misunderstood the time within which an appeal was required to be lodged, assuming that there was jurisdiction.

9    As the Minister very fairly conceded, it would have been possible for the applicant, even in the absence of this Court’s appellate jurisdiction, to challenge the Federal Circuit Court’s order of dismissal, either in the original jurisdiction of the High Court pursuant to s 75(v) of the Constitution, or in this Court’s materially similar original jurisdiction, conferred by s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act). Further, it would have been open to the applicant to ask this Court to treat his extension of time application as if it were an application in the Court’s original jurisdiction under s 39B of the Judiciary Act.

10    So even though it is open to dismiss what is, in form, an application for an extension of time within which to appeal on the basis that there is no conferred appellate jurisdiction to seek, by extension, to invoke, it is as well in the interests of justice to examine the merits, substantively, of the conclusion at law reached by the Federal Circuit Court. The applicant’s submission, which was succinctly put in writing and confirmed orally, was:

After my protection visa application to the Department of Immigration has being refused I have applied to the Administrative Appeals Tribunal. In the Administrative Appeals Tribunal Application form, I put my email address and personal address as the way to contact me. Due to my low level education I am not a regular user of email. I just keep a email id for me, and I mentioned my email id in the application. I was expecting the Administrative Appeals Tribunal would contact me for all type of communication. But I never get any postal mail from Administrative Appeals Tribunal.

During the Administrative Appeals Tribunal I was physically very sick. I physically and mentally distress as I did not have job, and I did not have money.

By this time. The Administrative Appeals Tribunal sent me the hearing invitation by email. Due to my unavoidable circumstances and I am not regular user of email, I missed the opportunity to explain my claim as a refugee.

11    The applicant, in short, claimed that he had been denied procedural fairness by the Tribunal and that the learned primary judge was in error in not concluding this. The difficulty with the applicant’s submission is that the Act provides for a code in respect of the giving of notices to persons other than the Secretary. The code admits of choices, as s 441A indicates. In selecting email as a method of communication, the Tribunal selected a permissible means and one which had been specified by the applicant in his review application. The Act, then, by s 441C, provided for when such an email communication was taken to have been given to the applicant.

12    The statutory code having been complied with by the Tribunal, it was, and is, nothing to the point that the applicant did not in fact know of the opportunity for the hearing. Indeed, as the Full Court observed in SBSC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 77, a statement in such circumstances that an applicant did not know about a tribunal hearing was of “no legal relevance”. It was appropriate for the learned primary judge to look to the prospective merits of a judicial review application in deciding whether or not to grant an extension of time. For the reasons which I have given, the learned primary judge was correct to conclude that the notification provisions of the Act had, in the circumstances of this case, been complied with by the Tribunal.

13    Indeed, even if the learned primary judge had dealt substantively with the judicial review application, having been disposed to grant an extension of time, and even if a consequential appeal had been initiated within time, with notification being the issue in that appeal, I should have dismissed the appeal on its merits because the Tribunal, in my view, complied with the notification provisions of the Act in the circumstances of this case.

14    In short, the applicant is the author of his own misfortune. The result is unfortunate, because the applicant appears to me to have given an honest account of the predicament in which he found himself as a result of not giving attention to the email address specified by him. But like the learned Federal Circuit Court judge, I am obliged to apply the terms of the Act to the facts as disclosed on the evidence. It was with all these reasons in mind that I commenced this judgment with the observation that this is a hard case, but not in its outcome, on the facts applying the Act. The result is that the application must be dismissed.

15    The Minister has made an application for costs. Very properly, the Minister did not seek costs in respect of the original listing of the application earlier this month. That the application was not able to be heard when originally listed was no fault either of the applicant or of the Minister. It was just the result of a listing by the Court’s National Operations Registry, which failed to take into account the experience of many years in relation to what is feasible in respect of the hearing of applications or appeals involving persons whose first language is not English and where there is a need consequentially for an interpreter.

16    The amount sought by the Minister is fixed in a Schedule to the Rules of Court as $1756. That amount also accords with what, in my view, is inherently a reasonable sum to allow, having regard to the issues in this case in respect of both appearance and preparation by a solicitor. Though the applicant submitted otherwise, there is no reason in the circumstances of this case to depart from the usual exercise of a discretion in a way such that costs follow the event.

Associate:    

Dated:    31 August 2017