APV16 v Minister for Immigration

[2017] FCCA 1432

FEDERAL CIRCUIT COURT OF AUSTRALIA

APV16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1432

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for review by the Tribunal was not made in accordance with the relevant legislation – the Tribunal did not have jurisdiction to hear the matter – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.438, 476, 494B, 494C

Applicant: APV16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 653 of 2016

Judgment of: Judge Street

Hearing date: 26 June 2017

Date of Last Submission: 26 June 2017

Delivered at: Sydney

Delivered on: 26 June 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr T Galvin

Minter Ellison

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 653 of 2016

APV16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated on 12 February 2016, finding that the Tribunal did not have jurisdiction in respect of a decision of the delegate made on 16 April 2014 declining to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Pakistan when he arrived in Australia on 31 May 2013 with a passport endorsed with an FA-600 (Business Visitor) visa granted on 19 April 2013. This visa remained in effect until 31 August 2013. It was not until 20 August 2013 that the applicant applied for a protection visa.

3. The delegate made adverse credibility finding in relation to the applicant and found that the applicant failed to meet the relevant criteria for the granting of a protection visa. That decision, made on 16 April 2014 was sent to the applicant by registered prepaid post to the address on the records of the Department. It was not until 31 December 2015 that the applicant lodged an application for review. 

The Tribunal’s decision

1. The Tribunal correctly identified the relevant law with respect to the method of notification of primary decisions. The Tribunal identified that one of the prescribed methods had been used under s.494B of the Act and that the applicant was deemed to have received the notice pursuant to s.494C of the Act.

2. The Tribunal noted that the applicant alleged that he had sent a change of address form to the Tribunal in the first week of April 2014. No record of any such change of address existed at the Department. The applicant in his alleged notification in December of 2015, said that he had not had communications with the Department however, it was apparent that the applicant had in fact contacted the Department by telephone in May of 2015. It is in those circumstances that the Tribunal found that the applicant had not lodged a change of address to the Department. These adverse credibility findings made by the Tribunal were open on the material before the Tribunal. 

3. The Tribunal found that in accordance with s.494C of the Act, the applicant was taken to have been notified of the primary decision on 30 April 2014. The Tribunal found that the prescribed period within which the review application could be made ended on 28 May 2014. The Tribunal found that an application for review was not lodged until 31 December 2015 and it followed that the application was not made in accordance with the relevant legislation and that the Tribunal had no jurisdiction in this matter.

Before this Court

1. The grounds of the application are as follows:-

   1. The Administrative Appeals Tribunal should have jurisdiction in my matter as I did not receive the original application/refusal as specified in the decision.

   2. The Tribunal invited me to comment and I gave my comments in an honest and straightforward manner yet they denied me the right to lodge a review.

   3. I am entitled to continue my review contrary to the decision by the Tribunal.

   4. The department previously communicated with me via email, the Case Officer, Meredith Prager,  failed to email me the decision as she did previously communicated with me via email when she invited me to attend an interview. See attachment to my affidavit.

   5. I became aware of a refusal only when I attended the Department of Immigration and I never received any decision until that day on 30 December 2015.

2. On 5 May 2016, A Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit of evidence and submissions. The applicant filed an affidavit which included material that was before the Tribunal and the Tribunals reasons, but no other document. 

3. At the commencement of the hearing the Court explained to the applicant that this was a final hearing to determine the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained in summary, this means that the Court was considering whether the Tribunal’s decision that it had no jurisdiction, was unlawful or unfair. The Court explained that if satisfied the Tribunal’s decision that it had no jurisdiction was unlawful or unfair, it would set aside the decision and send it back for further hearing. The Court explained that if not satisfied the Tribunal’s decision that it had no jurisdiction was unlawful or unfair it would dismiss the application. 

4. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed he understood the nature of the hearing. 

The applicant’s submissions from the bar table

1. From the bar table the applicant took issue with the Tribunal depriving him of an opportunity to advance his case for a review of the refusal of the protection visa. Nothing said by the applicant from the bar table identified anything more than disagreement with the adverse findings by the Tribunal. Those adverse findings were open. The Tribunal was correct to find it had no jurisdiction. 

Consideration

1. The grounds in the application take issue with the determination by the Tribunal that it had no jurisdiction. For the reasons given, the Tribunal was correct in finding that it had no jurisdiction. No jurisdictional errors made out by grounds 1 to 5 of the application. 

2. The first respondent has drawn the Court’s attention to the existence of a certificate under s.438 of the Act dated 8 January 2016, the documents the subject of that certificate also being provided to the Court. I accept the first respondent’s submission, that the Court correctly concluded that it had no jurisdiction. The existence of a certificate in the present case gives rise to no jurisdictional error and could give rise to no practical injustice. The first respondent was correct in its steps taken to bring the existence of a certificate to the attention of the Court, but this is not a case in which the certificate gives rise to any entitlement to relief by the applicant.

3. Accordingly the application is dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  7 July 2017