ADW16 v Minister for Immigration

[2016] FCCA 2567

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADW16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2567

Catchwords:
MIGRATION – Protection Visa – whether tribunal’s decision affected by jurisdictional error – where no error established in tribunal’s decision – application dismissed.

Legislation:

Migration Act 1958(Cth) s.494B

Applicant: ADW16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 50 of 2016

Judgment of: Judge Vasta

Hearing date: 22 September 2016

Date of Last Submission: 22 September 2016

Delivered at: Brisbane

Delivered on: 22 September 2016

REPRESENTATION

Solicitors for the Applicant: ESSEN LAWYERS PTY LTD

Counsel for the Respondent: Mr Richardson

Solicitors for the Respondent: CLAYTON UTZ

ORDERS

1. The Application filed on 20 January 2016 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 50 of 2016

ADW16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application dated 20 January 2016, the Applicant, ADW16, seeks this Court to review the decision of the Administrative Appeals Tribunal that had been made where the Tribunal had ruled that it had no jurisdiction to hear the application of the Applicant. 

2. It seems, on the history of this matter, that the Applicant had been a citizen of Vietnam who left that country, went to Indonesia and then arrived in Australia by boat in 2013.  He made an application for protection soon after his arrival. 

3. I might pause to say that it seems, on the evidence that the Applicant was born in March 1996.  So he was aged, it would seem, 17 years and eight months at the time of his making the application.  Under the Migration Act 1958(Cth) (“the Act”), that would mean that he was a minor at that time. 

4. The delegate looked at his application, interviewed him and, on the merits, decided that the Applicant was not a person to whom Australia held protection obligations under the Convention.  Nor did the complementary protection provisions apply.  Therefore, the visa was refused. 

5. That decision by the delegate was made in December of 2014.  The delegate of the Minister, upon making such a decision, must notify the Applicant that such a decision has been made. 

6. The Minister, under s.494B of the Act has a number of methods by which the Minister gives documents to a person. With regard to how that is done, s.494B(4) says:

   “(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.”

7. What occurred was that the Minister sent the documentation to the address of the Applicant that was at Marsden, which was the last address that had been given for the purposes of receiving documents. 

8. However, in the intervening period, it seems that the Assistant Minister for Immigration had exercised a power under the Act to have the Applicant move to Unit 14/145 Kingston Road, Woodridge.  Now, that was a decision by the Minister made on 17 November 2014. 

9. The Applicant did not advise the Minister that he had moved and that this was now his address for the purposes of receiving documents or that this was the last residential or business address provided by him. So when the Minister did send the documents to the address at Marsden rather than the address at Woodridge, the Minister had complied with s.494B(4)(c)(i) and (ii).

10. What, in fact, occurred is that because the letter was sent to the Marsden address, the Applicant did not receive it. 

11. The Applicant went to the office of the Minister in May of 2015 to find out what had happened to his application.  He then discovered

    a)That the application had been refused; and

    b)That the notification had been sent to another address. 

12. Upon finding that the application had been refused, the Applicant immediately sought to have the matter reviewed by the Administrative Appeals Tribunal. 

13. It seems that the Tribunal did look at the matter and affirmed the decision of the Minister because the application was out of time.  The Applicant then came to this Court, and by consent, I remitted the matter back to the Administrative Appeals Tribunal with the Notation:

    “The first respondent concedes that the decision dated 20 July 2015 is affected by jurisdictional error, as the second respondent failed to properly consider whether the Applicant had been validly notified of the decision of the first respondent.”

14. All the notation stated was that there was a jurisdictional error; it was not a notation as to the merits of the application.  It was simply that in the reasons given by the Tribunal, there was not a sufficient explanation that the Tribunal had actually considered whether the Applicant had been validly notified of the decision.

15. The Tribunal then looked at the matter again on 16 December 2015, where it made the decision that the Tribunal did not have jurisdiction in the matter.  This has led to the present application before me. 

16. The matter did come before me on 13 June 2016.  There, the Applicant argued that, because it was the Minister or the Assistant Minister who had made the decision for the Applicant to move address from the Marsden address to the Woodridge address, obviously the department knew that the Marsden address was not the address of the Applicant.  Therefore, it was a case of the department itself making a mistake. 

17. The problem with that submission really is that when one has a look at the Act and specifically s.494B, the onus at all times is upon the Applicant to keep the Minister notified.

18. It really is not an obligation of the Minister to know all of the goings-on of different parts of the department as to what they have done with particular persons who are under their control.  The Act puts the onus upon the Applicant.  

19. It seems to me, then, that whilst it may be seen as a departmental error, whilst it may have unfortunate consequences, and whilst it may also seem that it is a decision that seemingly is devoid of common sense, the fact is that the onus was upon the Applicant to inform the Minister of the change of address notwithstanding that it was the Minister or the department that had made the Applicant move.

20. It therefore seems to me that the Minister did comply with their obligations under s.494B(c)(i) and (ii).

21. The Applicant further submitted that because the Applicant only found out about the decision in May of 2015, that this was the time upon which he was properly notified.  That is not what the deeming provisions say.  It is quite clear, when one has a look at the section, that the Applicant is deemed to have been notified by the Minister seven days after the dispatching of the information or the documents. 

22. So therefore a date of 21 December 2014 is the date upon which the Applicant is deemed to have been told, so 35 days after that date is the time in which the Applicant has to make his application to the Administrative Appeals Tribunal. 

23. That was not done, and I cannot see that there has been a particular error in that aspect of this case. I would have, at that time this matter was first before me on 13 June 2016, made that decision and dismissed the application. However, it was the provisions of s.494B(4)(c)(iii) that made me question whether there had been valid notification. (iii) reads:

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

24. This means that if the Applicant was a minor, then the notification had to go to that address at Woodridge rather than the Marsden matter.  Why I wanted to look at that particular provision was that, as I have previously said, the Applicant was born in March 1996, so at the time of the application for a protection visa, he was aged under 18 years of age.  However, by the time that he was assessed by the delegate, he had reached the age of 18. 

25. By the time the Assistant Minister moved him, he had reached the age of 18 and seven months, and by the time the delegate had made the decision and it had been dispatched to him, he was aged 18 and nine months.  I asked for specific submissions on this point because in other jurisdictions, if a legal proceeding is launched at the time that a particular litigant is under the age of 18, then the matter proceeds in that manner until there is some other intervention.  The Act is actually silent on this aspect, so that is why I wanted further submissions. 

26. I must say that the further submissions that were put by the Applicant on this particular aspect were not particularly helpful, but that really seems to be because, really, when one looks at the matter, given the history and the way in which the matter has been conducted and looking at a specific reading of s.494B(4)(c)(iii), it is not possible for the Court to extend the definition of “minor” to the Applicant at the time in which he was to have been seen. The section operates so that the minister must act pursuant to sub sub sub section (iii) if the applicant is a minor at the time that the minister must give notice. So therefore I am of the view that s.494B(4)(c)(iii) does not apply in this case.

27. Today, there was a further submission concerning the departmental records, contained in the court book, showing that the Applicant was now living at the Woodridge address rather than the Marsden address. If one looks at pages 9, 10 and 11 of the court book, it shows at page 9 the Marsden address, and page 10 then has the Kingston Road, Woodridge address.  So it would seem as though there has been that change of address there and that the notation on the screen on for pages 10 and 11 shows that it was client-advised. 

28. However, if one wants to look at that and extrapolate that, well, the Applicant did give the department some notice, the fact is on both of these screens the date of such notification is 6 January 2015, and the decision was made in December of 2014.  So there is no evidence that the Applicant had, before December 2014, told the department that this was his new address for receipt of documents or his business address. At best, the evidence shows that there was an advising of this in January of 2015, which by the look of it, is some six or seven weeks after the change of address occurred. 

29. So when one looks at it, the Tribunal has not made any jurisdictional error as to this aspect.  The application had to have been made by a time 35 days after 21 December 2014 for the Administrative Appeals Tribunal to have jurisdiction to determine the matter.  The application was not made within that time, and therefore the Tribunal did not have jurisdiction to entertain the matter.  In my view, there has been no jurisdictional error established by the Tribunal in the decision that they have made.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:8 December 2016