BAE16 v Minister for Immigration

[2017] FCCA 1491

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAE16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1491

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Visitor subclass 600 visa – the Tribunal correctly applied the legislative provisions – no error of law by the Tribunal’s finding that it had no jurisdiction – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.412(1)(b), 438, 476, 494B, 494C

Migration Regulations 1994, r.4.31

Applicant: BAE16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1061 of 2016

Judgment of: Judge Street

Hearing date: 29 June 2017

Date of Last Submission: 29 June 2017

Delivered at: Sydney

Delivered on: 29 June 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Mr J Palte

DLA Piper

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1061 of 2016

BAE16

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 Act1958 (Cth) (“the Migration Act” in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 29 March 2016 holding that the Tribunal did not have jurisdiction to review a decision of the delegate made on 7 July 2014 refusing to grant the applicant a protection visa.

2. The applicant is a citizen of China who arrived in Australia on 14 December 2013 as the holder of a Visitor subclass 600 visa. That visa ceased on 14 March 2014.  It was not until 18 March 2014 that the applicant lodged an application for protection.

3. On 7 July 2014, the delegate found the applicant failed to meet the criteria for the grant of a visa under the Migration Act. The applicant was notified of that decision by letter dated 7 July 2014.

The Tribunal’s decision

1. The application for review was lodged on 17 November 2015. The Tribunal formed the preliminary view that it did not have jurisdiction, because the application lodged on 1 September 2015 was not lodged within the relevant time limit under s.412(1)(b) of the Migration Act and r.4.31 of the Migration Regulations 1994 (“the Regulations”).

2. The Tribunal identified that the last day for lodging the application for review was 13 August 2014. The Tribunal identified that the application for review was almost 15 months beyond the last day for the lodging of a valid application. 

3. The Tribunal wrote to the applicant on 4 December 2015 inviting the applicant to comment on the validity of the application for review.  On 16 December 2015, the Tribunal received a letter from the applicant stating that he did not know why he had not received the letter and asking the Department to consider the application. The Tribunal had regard to the applicant’s submission, but found it had no basis for accepting the application for review lodged on 17 November 2015.

4. The Tribunal found in accordance with s.494C of the Migration Act the applicant was taken to be notified of the decision on 16 July 2014. The Tribunal found that the period within which an application for review could be made ended on 13 August 2014. The Tribunal found that the review application was not made until 17 November 2015 and that the application for review was not made in accordance with the relevant legislation and the Tribunal had no jurisdiction.

Before this Court

1. On 16 June 2016, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed. 

2. The first respondent filed an affidavit establishing proof of the sending of the letter of notification to the applicant’s address in accordance with the times identified by the Tribunal. 

3. At the commencement of the hearing, the Court explained to the applicant that this is a final hearing to determine whether the Tribunal’s decision that it had no jurisdiction in the matter was affected by relevant legal error.

4. The Court explained that the relevant legal error had to be either an excess of statutory power, misconstruction of the legislation or a denial of procedural fairness to the applicant. The Court explained that, if the Court was not satisfied the Tribunal’s decision was affected by relevant legal error, the application would be dismissed with costs.

5. The Court explained that it would have identified the evidence and provided the applicant put submissions, the Court would then call on the solicitor for the first respondent and hear the applicant in reply.

6. The first respondent’s submissions were read to the applicant. The Court explained to the applicant that those submissions explained why the first respondent said the decision of the Tribunal was correct and was not unlawful or unfair. The Court explained that unless the applicant put submissions as to why the Tribunal’s decision was unlawful and unfair, the Court may not call upon the solicitor for the first respondent. 

7. The applicant indicated that he wanted to apply for a work visa and inquired whether the Court could provide him with a Medicare card. No submissions were put by the applicant as to why the Tribunal’s decision was unlawful or unfair. 

8. The grounds in the application are as follows:-

   • From the date of' 8 March 2014 I lodged my application fo protection visa to the Depaartment of Immigration & Board Protection , I always shecked my mail box to see wheher the Department sent the letters to me.But unfortunaetly I didn't find any letters so I had to call the Department for checking. They replied that they had sent their decision to me. But I repplied that I really din't get it and they promised to send a copy of their decision to my address. This is why I didn't lodge my application to your Department for reviewing of the decision of DIBP.I think it isn'tr my eror because I almost checked my mail box every evening after working.I don't know why their letter was not sent into my mail box.Therefore I think the Amnistration Appeals Tribunal should consider my true fact and forgive my late application to the Administration Appeals Tribunal and give me a last chance to attend their interview to answer their questions, then make a decision. But the member of the Administration Appeals Tribunal didn’t consider my explanation and requirement and refused my application.

   • I was forced to appeal to the Federal Court for judicial review in order to get a chance to retuem my case to the Administration Appeals Tribunal to consider again.

   My wife is a Christian. On 10 October 2013, I returned home for my holiday. My wife spoke to me: “I had made an appointment with Aunt LI at Xutang Village tomorrow morning at 9:00 for me to teach her gospel at her home. (It would be her second visit to the home of Aunt LI.) Could you please ride me on your bicycle there, as I have problem walking because of my arthritis paid?” I was a bit hesitated as any encounter with the police would land me into trouble. My wife could read my concern and assured me that police won't know this and my worry was unnecessary. I myself did not believe such coincidence of being caught by the police would happen to me just on such once-off occasion. On that morning, we left home at 8:00 am and arrived at the home of Aunt LI at 8:50. Aunt LI served me the tea. After a while, another four aunts also came over. All of them gave my wife a warm welcome for her efforts to teach them God's gospel. My wife then started her gospel teaching. About half an hour later, the door was kicked open with four policepersons bursting in. We were accused of having an unlawful gathering and breaching the public security rules. We were taken to the local police station for questioning. Two policepersons questioned me for my name, home address and occupation. I told them that I was having a holiday at home. For being unable to walk because of her arthritis pain, my wife asked me to take her on my bicycle to the home of Aunt Li at Xutang Village. Police said: “Your wife is a member of evil cult organization. You also committed an offence by riding her on your bicycle to this place to spread evil cult. With such hard evidence, you still refuse to admit your wrongdoing. You are really a die hard offender and you should be taught a lesson.” Then another policeperson started bearing me with his belt and I fell over on the ground. By the time I regained my consciousness, I found no police around but the door was locked from outside. At about 5:00pm that afternoon, I was told to contact my family on the phone and asked them to give the police 5,000 RMB yuan as the security bond for my bail. My son came to the police station with the money for the bond and took me borne. I was then released home for the time being to wait to be further dealt with. My son also gave the police I 0,000 RMB yuan as the security bond for my wife release. My son also took his mother home.

   My family is well aware that after this incident we would face even harder punishment and heavier fine. It would be beyond us to pay such fine. Our family finally decided That I should leave China to avoid of being persecuted. But, the Administration Appeals Tribunal filed giving my chance.

Consideration

1. The grounds seek to take issue with the Tribunal’s holding that it had no jurisdiction. The Tribunal was correct in its application of the legislative provisions in respect of the time in respect of the applicant was deemed to have been the subject of service under s.494C of the Migration Act as a result of the sending of the letter to the applicant’s address on the Department records and in accordance with the method identified under s.494B of the Migration Act.

2. Nothing said in the applicant’s submissions identifies any error of law in the finding by the Tribunal that it did not have jurisdiction. The applicant was given an opportunity to put submissions to the Tribunal as to why it did have jurisdiction. On the material before the Court, there was no denial of procedural fairness to the applicant in the Tribunal’s determination of whether it had no jurisdiction. Nothing in the grounds in the application identifies any jurisdictional error by the Tribunal.

s.438 Certificates

1. The first respondent has also drawn the Court’s attention to the existence of two certificates issued under s.438 of the Migration Act dated 7 July 2014 and 25 November 2015. In the circumstances of the present case where the Tribunal correctly found that it had no jurisdiction, the nondisclosure of the certificates or the documents the subject of the certificates do not give rise to any jurisdictional error. No practical injustice arises from the nondisclosure of the certificates or the material the subject of the certificates in the present case.

Tribunal’s finding in respect of an “approved form”

1. The Court also notes that the Tribunal made an independent finding purportedly holding that the form on which the application was made was not an approved form. That finding by the Tribunal was not correct, but gives rise to no error and no jurisdictional error in respect of the Tribunal’s finding that it had no jurisdiction in the circumstances of the present case, because of the 15 months delay in the filing of the application for review. I accept the first respondent’s submission that the erroneous finding by the Tribunal in respect of the form is of no consequence in the present proceedings. 

Conclusion

1. As the application fails to disclose any jurisdictional error, the application is dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  5 September 2017