FEDERAL COURT OF AUSTRALIA

DZE17 v Minister for Immigration and Border Protection [2018] FCA 1521

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

2.    Reasons to be published.

3.    Publication of reasons take place at 9:30am on 12 October 2018.

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

REASONS FOR JUDGMENT

ALLSOP CJ:

1    This is an appeal from the orders of the Federal Circuit Court of Australia on 22 February 2018, dismissing an application for judicial review in respect of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 1 September 2017. The Tribunal had determined that it did not have jurisdiction to review the decision of a delegate of the Minister made on 13 February 2017, who refused to grant the appellant a protection visa, on the basis that the application was filed out of time.

2    The appellant’s application for review of the Tribunal’s decision was lodged on 23 June 2017. The grounds of the application were as follows (quoted without alteration):

Orders sought by Applicant

1, I disagree with DIBP and AAT’s decision. They did not well consider that I have provided with the department with correct email address for all their correspondence.

2, I never received their final decision in my email in box, however DIBP send me their decision into my junk mail box which I could not open it.

3. AAT did not well consider and verify the mistake from DIBP.

The Grounds of the Application are:

1, I am a Taiwan citizen and applied for protection due to fears of being persecuted by the government. I cannot return to my home country. If I am forced to leave, I will be in danger.

2, AAT did not give good consideration for my case, AAT should well check it and I am totally a victim of this incident.

3, It is unfair not to accept my review application. I need protection from Australian government.

3    The primary judge concluded that the appellant’s application failed to make out any jurisdictional error. A central aspect of the primary judge’s consideration of the appellant’s grounds was that the appellant failed to lodge his application within the 28 day period stipulated by statute and the Tribunal correctly determined that, in those circumstances, it had no discretion, and therefore no jurisdiction, to consider the merits of the application.

4    On 26 February 2018, the appellant filed a notice of appeal against the judgment of the primary judge. That notice contained the following three grounds of appeal (again quoted without alteration):

1. AAT and Federal Circuit Court failed to Consider my explanation for appeal which I believe it is a legal error

2. I am a Taiwan citizen and applied for protection due to fears of being persecuted by the government. I cannot return to my home country. If I am forced to leave, I will be in danger.

3. AAT member and the Federal court did not well consider of my fears and persecution if return to my home country.

5    The second and third grounds of appeal are again concerned with the merits of the Tribunal’s decision. However, that is not the inquiry with which the Court is presently focused. The anterior question that must be determined is whether the primary judge was correct to conclude that the Tribunal was correct in its view that it had no jurisdiction to hear the review.

6    If the Tribunal was incorrect, and therefore the primary judge was also incorrect, the matter will be remitted to the Tribunal for a review on the merits. However, if the Tribunal was correct that it had no jurisdiction to perform the review, and the primary judge was correct to conclude as such, then the appeal would be dismissed.

Statutory Framework

7    It is necessary to set out the relevant legislative provisions and regulations before discussing the facts of the case within that framework. The starting point is s 66(1) of the Migration Act 1958 (Cth) (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.

8    The reference to Minister in this subsection includes a delegate of the Minister. As for the meaning of “the prescribed way”, reg 2.16 of the Migration Regulations 1994 (Cth) (the Regulations) relevantly states:

(1)    For subsections 66(1) … of the Act … this regulation sets out the way of notifying a person of a decision to grant or refuse to grant a visa.

…

(3)    The 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.

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

9    Section 494B sets out various methods by which the Minister (or his delegate) may give documents to a person. Sub-section 494B(5) concerns transmission by fax, email or other electronic means, as follows:

Another method consists of the Minister transmitting the document by:

(a)    fax; or

(b)    email; or

(c)    other electronic means;

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…

10    As indicated in the note to reg 2.16(3), s 494C of the Act complements s 494B by clarifying when a person is taken to have received a document from the Minister under any of those methods. In relation to transmission by fax, email or other electronic means, sub-s 494C(5) states:

If the Minister gives a document to a person by the method in subsection 494B(5)…the person is taken to have received the document at the end of the day on which the document is transmitted.

11    Returning to s 66 of the Act, sub-s 66(2) lists certain matters that any notification of a decision to refuse an application for a visa must contain. Relevantly for present purposes, these include:

(a)    if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa – specify that criterion; and

…

(c)    unless subsection (3) applies to the application – give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and

(d)    if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500 – state:

(i) that the decision can be reviewed; and

(ii) the time in which the application for review may be made; and

(iii) who can apply for the review; and

(iv) where the application for review can be made…

12    Section 412 deals with the application for review:

(1)    An application for review of a Part 7-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).

…

13    The prescribed time referenced in s 412(1)(b) is given content in reg 4.31 of the Regulations. As the appellant was not in immigration detention on the date of notification, to which I will later come, sub-reg 4.31(2) applies:

For paragraph 412(1)(b) of the Act, if an applicant is not 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 28 days, commencing on the day the applicant is notified of the decision.

Evidence

14    I now turn to the evidence that the first respondent submits is demonstrative of the appellant’s non-compliance with the time limit taken from the provisions.

15    First, I was directed to the appellant’s protection visa application. In this document: the applicant requested all written communications about the application to be sent to him; the applicant indicated that he had an email address; and the applicant specified this email address was to be used for communication with the department by fax, email or other electronic means.

16    Secondly, I was referred to a “Form 929 – Change of address and/or passport details” that the appellant had completed in which he had again listed the specified email address as the means of communication with the department.

17    Thirdly, the notification letter sent by the Department of Immigration and Border Protection on 13 February 2017 was addressed to the specified email and contained details that satisfied the relevant mandatory matters in s 66(2) of the Act.

18    Finally, I was referred to the affidavit of Julian D’arcey Pinder (a solicitor) affirmed on 21 December 2017, which was said to demonstrate that the email was in fact sent to the specified email address. Mr Pinder’s affidavit annexed several documents. The first was said to be a screenshot from the Department’s enterprise correspondence system. On the first respondent’s submission, the screenshot showed that the Department sent an email with attachments to the specified email address at 10:46am on 13 February 2017. Those attachments – the notification letter and the delegate’s refusal – were the other documents annexed to Mr Pinder’s affidavit.

19    On the basis of the above evidence, the first respondent submitted that, by the operation of s 494C(5), the appellant was taken to have been notified by the Minister at the end of 13 February 2017, the date of transmission, despite the appellant’s claim that he had not actually seen the notification, which had been received into his junk mail. Section 412(1)(b) of the Act and sub-reg 4.31(2) of the Regulations were then said to have given the appellant 28 days to provide to the Tribunal any application for review. The appellant’s application, which was received on 23 June 2017, was therefore, on the first respondent’s submission, clearly out of time.

20    The documents annexed to Mr Pinder’s affidavit are business records of the Department. There was no evidence, however, from any member of the Department as to the documents, and the meaning of the entries therein. Here, certainly in circumstances where it is accepted that the appellant’s computer received the email (though it was sent to or stored in his “junk mail”), I am prepared to draw the inference that these records prove that notification was made in accordance with the Act and the Regulations on 13 February 2017.

21    The appellant’s only complaint regarding the first respondent’s evidence was that the notification was received into his junk mail. He did not raise any argument as to the admissibility of the first respondent’s evidence. I am prepared to draw the inference that the screenshot of the Department’s enterprise correspondence system is admissible as a business record pursuant to s 69(2) of the Evidence Act 1995 (Cth), which provides as follows:

The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made:

(a)    by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or

(b)    on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.

22    The representation in the screenshot was likely to have been made by a person in the Department who had, or might reasonably be supposed to have had, personal knowledge of that fact, or on the basis of information directly or indirectly supplied by such a person, because it is corroborated by the appellant’s claim that he found the email in his junk mail.

23    I make three further observations on this point. First, it is not necessary that this person from the Department be identified: see Forbes Engineering (Asia) Pte Limited v Forbes (No 4) [2009] FCA 675 at [104], citing Guest v Commissioner of Taxation [2007] FCA 193 at [25]. Secondly, I have, in reaching this conclusion, taken judicial notice of the proposition that junk mail is not received via a different email address but is rather filtered away from the main inbox associated with the same email address. In other words, it is still received by that email address. Thirdly, whilst it is a matter for the first respondent to prove the case propounded, in any given case the production of copies of departmental documents, otherwise unexplained, may or may not prove what is sought to be proved. In this case, the appellant’s claim that he did receive the email, albeit in his junk mail, enables me comfortably to draw that inference.

24    Accordingly, the primary judge made no error in accepting the existence of the jurisdictional fact that the appellant was notified of the decision to refuse his visa application on 13 February 2017 and therefore that the appellant’s application for review was received more than 28 days after the date of deemed notification.

25    While the Tribunal’s finding that the application was made out of time could be re-examined as a decision concerning the existence of a condition precedent to its jurisdiction (see Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 at [19]), the Tribunal was correct to decide that its jurisdiction had not been enlivened for the reasons above. The primary judge was therefore also correct to conclude that the Tribunal properly determined that it had no statutory jurisdiction to undertake a review of the application on its merits.

Original jurisdiction to review the delegate’s decision

26    In light of my conclusion that the Tribunal, and therefore the primary judge, did not err, the appeal must fail.

27    That leaves the question as to whether the delegate’s decision can be reviewed. Neither this Court nor the Federal Circuit Court has original jurisdiction to review the delegate’s decision. Sections 408 and 409 of the Act provide only for the review of Part 7-reviewable decisions, which relate to the grant or cancellation of protection visas, by the Tribunal in its Migration and Refugee Division.

28    Section 476(2)(a) of the Act provides that the Federal Circuit Court has no jurisdiction in relation to a primary decision, which is defined as follows:

“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...

29    “Privative clause decision” is defined in s 474 of the Act as meaning:

a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not)…

30    Section 474(3)(b) clarifies that the refusal to give a visa is a “decision” for the purposes of s 474. As a privative clause decision that was reviewable under Part 7 of the Act, the delegate’s decision was therefore a primary decision in relation to which the Federal Circuit Court had no jurisdiction, pursuant to s 476(2)(a).

31    Similarly, s 476A(1) limits the original jurisdiction of the Federal Court:

(1)    Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:

(a)    the Federal Circuit Court transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 39 of the Federal Circuit Court of Australia Act 1999; or

(b)    the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or

(c)    the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA; or

(d) the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975.

32    The decision of the delegate does not fall into any of the s 476A(1) categories and therefore the Federal Court also does not have original jurisdiction to review the delegate’s decision.

33    However, s 75(v) of the Constitution confers upon the High Court of Australia original jurisdiction in respect of matters in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. As the decision of the Minister’s delegate to refuse to grant a protection visa constitutes a decision of an officer of the Commonwealth, it remains reviewable for jurisdictional error before the High Court.

34    If the appellant decides to apply for a constitutional writ under s 75(v), that application must be in Form 12 and comply with the requirements in rr 25.01 and 25.03 of the High Court Rules 2004 (Cth). This is the only remaining avenue by which review may still be available to the appellant.

35    Before this Court, however, the appellant has failed to establish any jurisdictional error on the part of the primary judge. The appeal should be dismissed with costs.

Associate:

Dated:    12 October 2018