Akb18 v Minister for Home Affairs - [2019] FCCA 441

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKB18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 441

Catchwords:
MIGRATION – Application for judicial review of a decision of the Administrative Appeals Tribunal that it lacked jurisdiction to hear and determine a merits review application from a decision of a Delegate of the Minister for Immigration because it was lodged outside the applicable 28 day period for doing so – first applicant claimed Department of the Minister ignored his ‘preferred’ method of communication – applicant was notified of decision in accordance with s.494B of the Migration Act 1958 (Cth) – the Administrative Appeals Tribunal correctly had regard to the relevant statutory regime – Administrative Appeals Tribunal did not commit jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), s.494C

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604

Calimoso v Minister for Immigration and Border Protection [2016] FCA 1335

CGJ16 v Minister for Immigration and Border Protection [2018] FCA 1437

First Applicant:

AKB18

Second Applicant:

AKC18

Third Applicant:

AKD18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 214 of 2018

Judgment of:

Judge Dowdy

Hearing date:

8 February 2019

Delivered at:

Sydney

Delivered on:

8 February 2019

REPRESENTATION

The Applicants appeared in person.

Counsel for the First Respondent:

Ms J. Strugnell

Solicitors for the First Respondent:

Minter Ellison

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 29 January 2018 is dismissed.
The First and Second Applicants are ordered to pay the First Respondent’s costs of the proceeding in the sum of $5,600.
Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicants have up to and including 19 March 2019 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 214 of 2018

AKB18

First Applicant

AKC18

Second Applicant

AKD18

Third Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction

The Applicants are citizens of India. The First Applicant is a male who was born on 18 June 1986. The Second Applicant is a female, having been born on 19 January 1993 and is the wife of the First Applicant. The Third Applicant is a female, having been born on 11 February 2014 and is the daughter of the First and Second Applicants.
The First Applicant arrived in Australia on 14 January 2016, and the Second and Third Applicants arrived on 7 March 2016, all on Tourist (Class FA) (Subclass 600) visas.
On 29 August 2016 they applied for Protection (Class XA) (Subclass 866) visas (Protection visas). Only the First Applicant made actual claims to protection on the basis of fearing harm on account of his political opinions, in particular from members of the Congress Party. The Second and Third Applicants applied as secondary applicants being members of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 441
Decision Date: 8 February 2019

CaseChat Overview and Summary

The applicants sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which held it lacked jurisdiction to hear a merits review of a delegate of the Minister for Home Affairs' decision. The AAT's finding of no jurisdiction was based on the merits review application being lodged outside the prescribed 28-day period. The first applicant contended that the Department of Home Affairs had disregarded his preferred method of communication.

The central legal issue before the Court was whether the AAT had committed a jurisdictional error in determining that it lacked jurisdiction to hear the merits review application due to the late lodgement. This required the Court to consider whether the notification of the delegate's decision was validly effected in accordance with section 494B of the *Migration Act 1958* (Cth), and whether the AAT correctly applied the relevant statutory provisions in assessing its jurisdiction.

Dowdy J found that the AAT had correctly had regard to the relevant statutory regime governing the notification of decisions and the time limits for lodging merits review applications. The Court determined that the notification of the delegate's decision to the applicant was made in accordance with section 494B of the *Migration Act*. Consequently, the AAT's conclusion that the merits review application was lodged out of time, and therefore that it lacked jurisdiction, was not a jurisdictional error. The application for judicial review was dismissed.

Orders