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Immigration Daily News A Grotesquely Unfair Situation Involving Immigration Detention!!Australian Immigration Daily News
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A Grotesquely Unfair Situation Involving Immigration Detention!!
A decision that was handed down by the Federal Circuit Court on Monday of this week (5 December 2016) highlights the vulnerability of people who are being held in immigration detention and the obstacles that they can encounter when they seek to exercise the rights that are supposedly available to them under the Migration Act.
The case was Singh v Minister for Immigration & Anor (2016) FCCA 3060. This was the story:
Mr Singh was in immigration detention for reasons that are not explained in the Court’s judgment.
He applied for a Bridging Visa E, which would have enabled him to be released from detention.
However, his application for the BVE was refused by the Department.
Under section 3347(1)(b) of the Migration Act and regulation 4.10 of the Migration Regulations, an application for review of the refusal of the application for the BVE had to be made within 2 working days’ after notification .
Mr Singh was notified of the refusal of his BVE application on 2 May 2016. On 3 May 2016, he arranged to have his application for review sent to the Administrative Appeals Tribunal by facsimile by a “detainee officer” at the “Adelaide Immigration Transit Accommodation”. An application by another detainee was apparently faxed to the Tribunal immediately before Mr Singh’s application.
However, the application that was attempted to be faxed to the Tribunal on behalf of Mr Singh was not received within the 2 day time period.
Apparently, what occurred was that the telephone connection between the detention centre and the Tribunal “went down” or “dropped out” after the application on behalf of the other detainee was sent.
So Mr Singh’s application “never went through” and was not received by the tribunal within the allowable time period for an appeal.
The Tribunal determined that since the application for review of the refusal of the BVE was not received within the specified period for appeal, it did not have jurisdiction.
The Federal Circuit Court held that the Tribunal’s decision that it did not have jurisdiction to hear the review application was correct, and consequently the Court dismissed Mr Singh’s application for judicial review.
The Court did observe that under section 74 of the Act it was open to Mr Singh to make another application for a bridging visa within 30 days of the time that his previous application was “finally determined”, and that the availability of this opportunity to re-apply could “dissipate” the “otherwise harsh operation of the Act”.
That observation by the Court is certainly accurate, as far as it goes.
However, the difficulty is that Mr Singh lost his right to have the refusal of his application for a BVE through no fault of his own. He did everything that a person in his situation could be expected to do: he provided the review application to an officer at the detention centre and arranged for it to be transmitted to the Tribunal within the time allowed for an appeal.
And even though the facts of what happened to Mr Singh are not disclosed in the Court’s decision, it is most likely that he remained in detention throughout the period when his application for review of the Tribunal’s decision that it did not have jurisdiction was awaiting determination before the Federal Circuit Court.
And what if the Department’s refusal of the initial BVE application was wrongful?
The consequence of the Tribunal’s refusal to accept the merits review application will have been that Mr Singh will have been deprived of his liberty for a prolonged period of time unnecessarily and unlawfully.
I suggest that in the circumstances of this case, the Migration Act operated in a way that was beyond harsh.
What do you think?
Should the Tribunal or the Court have allowed more flexibility in the application of the filing deadline in this unusual situation?
Questions: This email address is being protected from spambots. You need JavaScript enabled to view it.
Comments
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Friday, 09 December 2016
Yes I would absolutely favour the Tribunal and the courts extending flexibility where the interests of justice require. In this scenario we have a breakdown in the administrative processes that was entirely outside the control of the applicant. The consequence is that he was held in detention (potentially) for a longer period than would have been the case than if his application for review had been accepted in the first instance by the Tribunal. There is a well known concept in the law known as allowing an appeal nunc pro tunc which could conceivably have been applied in these circumstances. I do not favour any outcome which sanctions a result where a person has suffered an unnecessary deprivation of their liberty. The detention powers under the Migration Act have the same effect as the criminal law without the procedural safeguards. In my view the entire scheme of detention needs to be reexamined, we do not want a gulag archipelago in Australia.
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Friday, 09 December 2016The tribunal actually has the discretion to accept the late review application, in such a situation, to my knowledge, don't know why decided not to, most likely the review application, in tribunal's view that would be fail even if it went through on the first instance.
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Friday, 09 December 2016
Agreed Michael Arch - further criminal law has transparency - migration law no longer does.
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Friday, 09 December 2016
Although the decision seems correct, such issues warrant serious review. What if the AAT staff had destroyed the fax ? If an "OK" receipt won't be sufficient.
What about "deeming provisions" ? The below is a part of my article which I sent to the Law Society for publication but no response has been received. The foot-notes are not attached.
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Furthermore, another other issues can arise through the errors of third parties when delivering correspondence. A recent newspaper article on mail delivery emphasizes this issue:
A POSTMAN from Wahroonga had failed to deliver more than 5000 letters to homes in the Roseville area since he began with Australia Post six months ago, police said.
They arrested the man, 38, after searching his vehicle in St Ives on Wednesday and found a number of undelivered letters. He had been under surveillance since Australia Post contacted police with their concerns.
Police later searched his home, which he shares with his parents, and said they found thousands of letters, mostly unopened. Contents of the letters included cheque books, cheques and credit cards. Roseville residents have reportedly been complaining of missing mail for six months.
It is beyond one’s imagination as to how the legislatures devised a “deeming provision” when a third party is involved in delivering documents. A deeming provision itself lacks procedural fairness and needs to be scrapped, or at the very least, amended.
The above incident should be considered “unless and otherwise proved” when assuming that a letter posted within Australia is deemed to have been received by the addressee within seven working days from the date of the letter.
It is worth mentioning whether judicial activism can play a vital role in dispensing justice by interpreting these provisions using the golden rule of interpretation . In Rawal v Minister for Immigration [2012] FMCA 71 (9 February 2012), Federal Magistrate Raphael appeared to have expressed his dissatisfaction by stating, inter alia:
If one was ever to wish a demonstration of the adage that hard cases make bad law then this is such a case... In these circumstances it seems that however unfair it might appear that a person, who has all the qualifications to enable him to obtain the visa that he applied for and who in normal circumstances had done everything he could to enable the grant of that visa, has not had the opportunity for a merits review of what appears to be a premature decision I regret that I am unable to find any ground upon which the Tribunal fell into jurisdictional error in asserting that it had no jurisdiction to hear that review. The application is dismissed…
In this case, it was clear that the letter was received by someone else at an unspecified address, not the addressee. The deeming provision played a crucial role and compelled The Court to make ‘bad law’ on the basis that the letter was sent to the last known address of the applicant within 3 days from the date of the letter. Neither the copy of the envelope, nor the address of delivery was produced even after issuing a Subpoena. However, only on the basis of the address appeared in the actual letter, The Court felt that its hands were tied. -
Friday, 09 December 2016
Some typos...
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Monday, 12 December 2016
"The tribunal actually has the discretion to accept the late review application, in such a situation, to my knowledge, don't know why decided not to, most likely the review application, in tribunal's view that would be fail even if it went through on the first instance."
Hi Wei, could you please share the specific section in the rules that permits this. -
Thursday, 15 December 2016
Hi Michael,
There is nothing in the Acts or Regs, not to my knowledge, or outcome in Singh's case would probably be different. The tribunal however, does give some discretions, and it happened to me too. I once faxed a review application to 92675599, instead of 92765599, only found out some two months after, I was told to resend everything in with evidence an explanation but said there will be no guaranty it can be accepted. The application was remitted. Wrong fax No not mentioned in the decision. -
Wednesday, 14 December 2016
If the application is handed to an Immigration officer because the detainee has no access to any facility to transmit the application to the AAT, the law should state that the application is valid for the AAT if it has been received by any officer of the department. The detainee is reliant on a third party who represents the government and whom they have no control over, who cannot be monitored and must be relied on to transmit the application, therefore it makes sense that the department is responsible for the transmission and acceptance of the form should be at the time it is submitted to the Immigration officer.
If that cant be done then immigration detention should make online access available for the applicant to submit online to verify the submission.
If the requirement is to fax it then the detainee should be present until it is faxed and verified. -
Wednesday, 14 December 2016
The applicant followed the rules
The Tribunal followed the rules.
The Federal Court followed the rules.
Clearly, the rules suck.
Apparently no one thought about plain simple human rights. -
Thursday, 15 December 2016
Thanks Wei, I was hoping you had something I missed.
I also want to thank Shamser Thapa for the postman story. In Chicago in 2012, a postman confessed to being guilty of having stolen and destroyed 29,400 pieces of mail while pilfering the post for money.
The migration notice rules are defective, but until all filing is online with automated receipting we are stuck with it.
Immigration blog
The Tribunal followed the rules. The Federal Court followed the rules. Perhaps the applicant could have asked for the "OK" receipt after his email was sent. He would have known the fax had not gone through. The two day rule is similar to strict liability laws about such things as brake lights not working on your car despite your having checked them immediately before you started diving your car. No one who is the subject of an adverse decision under a strict liability rule is ever happy.
Would you rather give the department or the tribunal the right to make subjective determinations? As for whether the complainant suffered unduly because of the delay, it happens every day when courts refuse innocent defendants bail. That's why our society needs good, energetic lawyers.