AVO18 v Minister for Immigration

[2018] FCCA 2533

FEDERAL CIRCUIT COURT OF AUSTRALIA

AVO18 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2533

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – show cause hearing – the Tribunal having no jurisdiction – no arguable ground of review.

Legislation:
Federal Circuit Court Rules 2001, r.44.12(1)(a)
Migration Act 1958, ss.438(1)(b), 494B, 494C(4)

Applicant: AVO18

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 1937 of 2017

Judgment of: Judge Riley

Hearing date: 25 July 2018

Date of last submission: 25 July 2018

Delivered at: Melbourne

Delivered on: 25 July 2018

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the first respondent:	Coenraad Van Der Westhuizen
Counsel for the second respondent:	No appearance

Solicitors for the respondents: DLA Piper Australia

ORDERS

1. The application filed on 8 September 2017 be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1937 of 2017

AVO18

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from the Transcript)[1]

[1]     Reasons for judgment were given orally on 25 July 2018. The applicant filed an application for leave to appeal on 6 August 2018. The registry advised chambers on 14 August 2018 that the applicant had applied for leave to appeal. Chambers ordered a transcript of the reasons for judgment on 13 August 2018. Auscript provided the transcript of the reasons for judgment on 16 August 2018. The judge was then on leave. The reasons for judgment were settled and sent to the applicant and the Minister by email and post on 7 September 2018.

1. This is a show cause hearing in the context of an application to review a decision of the Administrative Appeals Tribunal.  The Tribunal found that it had no jurisdiction in this case because the application made to it was made more than 28 days after the delegate’s decision was deemed to have been received by the applicant. 

2. The Tribunal invited the applicant’s comments on whether it had jurisdiction or not.  However, the applicant’s agent replied saying that the applicant did not receive the delegate’s decision.  The agent said that the applicant only discovered that the delegate had made a decision when he went to the migration department regarding his Medicare status and was told that the decision had been made two months earlier.  The applicant said that he was an innocent victim of the process and would provide a further statement within two weeks.  No such further statement was provided to the Tribunal, so the Tribunal proceeded to make its decision. 

3. The history of the matter is that the applicant is a citizen of Bangladesh.  He was born on 10 February 1980.  He came to Australia on 22 December 2014 on a tourist visa.  On 5 January 2015, he lodged a protection visa application.  He claimed in that application to fear harm from members of the Awami League as he was involved as a political leader for the BNP Jamaat coalition.  The delegate invited the applicant to an interview. However, the applicant did not attend.  The applicant told the court today that he did not receive the invitation to the interview. 

4. On 1 May 2017, the delegate refused the protection visa application.  The applicant attended the migration department on 5 July 2017 to inquire about his Medicare status.  At that point, he was told about the delegate’s decision that had been made on 1 May 2017. 

5. On 9 July 2017, the applicant purportedly applied to the Tribunal for review of the delegate’s decision.  On 14 July 2017, the Tribunal invited the applicant to comment on the validity of his application in circumstances where it appeared to have been lodged out of time. 

6. As mentioned, the applicant’s agent replied on 1 August 2017, as previously described, and then did not provide any further submission.  On 15 August 2017, the Tribunal made its decision that it did not have jurisdiction in this matter. 

7. The application to this court was filed on 8 September 2017. The applicant said in his application that he needed an extension of time in which to bring the application to this court. However, the Minister pointed out correctly that the applicant did not need an extension of time to bring his application to this court.  The application to this court was brought within 35 days of the Tribunal’s decision. 

8. The substantive grounds of the application are:

   1.The Tribunal failed to properly consider all of my claims.

   2.The Tribunal didn’t give an opportunity to review. 

9. It is true that the Tribunal did not consider the applicant’s claims.  The Tribunal simply noted the history, and said that, in those circumstances, it did not have jurisdiction. Therefore, if the Tribunal was correct on the jurisdictional point, it was not obliged or, indeed, entitled, to consider any of the applicant’s claims. 

10. The second ground is that the Tribunal did not give an opportunity to review.  Again, it is true that the Tribunal did not afford the applicant an opportunity to present arguments or give evidence to the effect that the delegate’s decision was wrong.  However, if the Tribunal was correct in relation to the jurisdictional point, it was not permitted to undertake a review of the delegate’s decision. 

11. The Tribunal was correct in relation to the jurisdictional point. The delegate’s decision was made on 1 May 2017.  It seems that the Tribunal may have thought that the delegate’s decision was not dispatched by the Department until 2 May 2017, but that makes no difference given the timeframes in this particular application.  The Tribunal noted that the applicant had notified the Department that he had changed his address.  However, that notification was not given until 5 July 2017.  That was well after the delegate’s decision was made. 

12. An affidavit filed on behalf of the Minister and affirmed by Coenraad Henry Van Der Westhuizen on 3 July 2018 exhibits the despatch records for the delegate’s decision. That affidavit shows that the material was sent on 1 May 2017 to the applicant’s address as disclosed on his application for the visa. Pursuant to s.494B of the Migration Act 1958 (“the Act”), the delegate was able to advise the applicant of its decision in certain ways.  One of those ways was that the delegate could despatch the decision by prepaid post within three working days of the date of the document to the last address for service provided to the Minister by the applicant.  The material shows that occurred. 

13. Pursuant to s.494C(4) of the Act, where a decision is dispatched to an applicant in that way, the applicant is deemed to have received it seven working days after the date of the document. Consequently, on any view, the applicant is to be taken to have received the notification on 10 May 2017. The applicant had 28 days from the date of deemed receipt to have lodged his application with the Tribunal. That would have made the cut-off date 6 June 2017.

14. The Tribunal calculated 7 June 2017. However, that makes no difference to the outcome in the present proceeding because the applicant did not apply to the Tribunal until 9 July 2017. That was about a month outside the 28 day allowed period. 

15. The Tribunal does not have any jurisdiction to extend time in circumstances such as this. Consequently, the Tribunal was correct to conclude that it did not have jurisdiction. 

16. The Tribunal did give the applicant the opportunity to comment on the jurisdictional issue. However, whether the Tribunal had given that opportunity or not would not make any difference to whether the Tribunal had jurisdiction. 

17. The Minister, as model litigant, has noted for completeness that the secretary in this case issued a certificate pursuant to s.438(1)(b) of the Act. However, the Minister pointed out that there could not have been a denial of procedural fairness because of that certificate as the Tribunal had no jurisdiction, in any event. I accept that submission.

18. All in all, it seems to me that there is not an arguable ground of review in the present case. Consequently, the application must be dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  7 September 2018