BCN23 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)

[2024] FedCFamC2G 375

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BCN23 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 375

File number(s):

SYG 699 of 2023

Judgment of:

JUDGE STREET

Date of judgment:

26 April 2024

Catchwords:

 MIGRATION – tribunal found no jurisdiction – no reasonable prospect of success – orders of Registrar affirmed – application for review dismissed  

Legislation:

Federal Circuit and Family Court of Australia Act 2021 (Cth)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Cases cited:

DZAFH v Minister for Immigration [2017] FCCA 387

Spencer v Commonwealth of Australia [2010] HCA 28

Division:

Division 2 General Federal Law

Number of paragraphs:

13

Date of hearing:

5 April 2024

Place:

Sydney

Applicant:

Appeared via video and audio-link

Solicitor for the Respondent:

Ms T Jackson of Minter Ellison Lawyers

ORDERS

SYG 699 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BCN23

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	26 APRIL 2024

THE COURT ORDERS THAT:

1.The Registrar’s decision made on 1 March 2024 is affirmed.

2.The application for review is dismissed.

3.The applicant pays the first respondent’s costs in the amount of $1,000.00.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE STREET

1. This is an application for review of a Registrar’s decision made on 1 March 2024 summarily dismissing the applicant’s application, which alleged a jurisdictional error in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 28 March 2023 holding that the Tribunal did not have jurisdiction in respect of an application for review lodged on 29 December 2022 in respect of a decision of a Delegate made and notified on 30 November 2022, refusing to grant the applicant a protection visa. The applicant is a citizen of Malaysia and lodged the application for the protection visa on 9 September 2019. The grounds in the Application for Review dated 28 April 2023 were as follows:

   Grounds for Review

   There exists unfairness.

   (1)The Department did not clearly state the commencing date to appeal in its notification, which breached legal requirements.

   (2)Tribunal did not act properly because it failed to check if the Department had given me clear notification to appeal.

   (3)The date that the Department sent its notification should not be counted in 28 days for appeal because it is not fair for applicants to appeal.

2. At the commencement of the hearing, with the benefit of a Malaysian interpreter, the Court explained to the applicant the nature of the hearing and then identified the relevant evidence and gave the applicant an opportunity to put submissions. The only matter raised by the applicant was the proposition that the Saturday or Sunday should not be counted. The applicant otherwise put no oral submissions in support of the three grounds in his application. The evidence that was admitted included an affidavit on behalf of the Minister that proved the notification by email to the applicant of the decision made on 30 November 2022 refusing the application to grant the applicant a protection visa.

3. The notification letter complied with the statutory requirements of s 66(2) of the Migration Act 1958 (Cth) (“the Act”). The notification letter identified the right of review and referred to an application having to be made within 28 days of the day, commencing on the day you are taken to have received a letter and identifying that as the letter was sent by email, the applicant is taken to have received it at the end of the day it was transmitted. The notification letter otherwise complied with each of the requirements under s 66(2)(a), (b), (c) and (d) of the Act.  The delegate’s decision refusing to grant the applicant a protection visa summarised the applicant’s claims, which was, in summary, that the applicant was in a same-sex relationship with a Malay man in Malaysia and was abused by that man’s family, and the family threatened to report the relationship to the Islamic Court for judges, and that the applicant reported the abuse to the police, but that the police did not help, and that they were unable to relocate because of the Malay man’s family, and that the applicant feared harm or mistreatment by being sent to an Islamic Court if returned to Malaysia, and that the applicant feared the authorities would not help him because Malaysia is a conservative Muslim country.

4. The Delegate identified the applicant was sent correspondence inviting him to provide additional information in respect of his claims under s 56 of the Act, and identifying the lack of substantiating details, and that in the absence of response, the department may determine the application without again requesting further information. The Delegate’s decision identified that as at the date of the Delegate’s decision, the applicant had not provided the additional information under s 56 of the Act. The Delegate found that the lack of details in respect of the applicant’s claim together with the failure to respond to the invitation raised serious doubts that the applicant’s claims were based on his own personal experience and life experiences, and that the applicant had provided no personal information in relation to his sexual orientation, associations and behaviours in Malaysia and/or about interests or activities in Australia.

5. The Delegate found there is no information to indicate that the applicant has engaged in behaviour in Malaysia or Australia that led to anyone identifying him as gay, and the Delegate did not accept that the applicant experienced any problems as claimed or that he has experienced any form of harm in Malaysia, and did not accept that the applicant would be harmed on return to Malaysia because of his sexual orientation and found the applicant failed to meet the criteria under s 36(2)(a) and s 36(2)(aa) of the Act. The Tribunal, after receipt of the application for review, sent the applicant an invitation to comment, on 4 January 2023, as to the validity of the application. The letter identified that the relevant period, pursuant to reg. 4.31(2) of the Migration Regulations 1994 (Cth), in which a review application under part 7 must be given in 28 days, and identified a relevant decision which found the period includes the day the applicant is taken to have been notified of the decision.

6. The Tribunal’s letter identified that the applicant had the primary decision emailed to him, which meant that the relevant date was 30 November 2022, and that the last day for lodging the application for a merits review was 27 December 2022, and that the applicant’s application was not received until 29 December 2022 and, accordingly, invited submissions as to whether or not there was a valid application engaging the Tribunal’s powers of review. The letter identified a date within which the applicant was invited to make comments and foreshadowed the making of a decision if the applicant failed to respond.

7. The applicant failed to respond, and on 31 March 2023, the applicant was notified that the Tribunal had found that the applicant was notified of the Delegate’s refusal to grant the visa on 30 November 2022, and that as it was dispatched by email, the applicant was taken to have been notified on that date, and that, accordingly, the prescribed period to apply for review ended on 27 December 2022, and that the last day of the prescribed period was not a holiday, a Saturday or a Sunday, and, accordingly, the application lodged on 29 December 2022 was not made within the relevant period, and that the Tribunal had no power to review the Delegate’s decision.

8. The applicant’s only submission was that a Saturday should not be counted. The last day of the prescribed period was not a Saturday, Sunday or holiday, and the applicant’s oral submissions do not identify an arguable case of relevant error.  by reason of which there would be utility in setting aside the Registrar’s orders and reinstating the proceedings. The first ground in the application for review asserts an unfairness in relation to the commencement date in respect of appeal from notification and alleged a breach of legal requirements. Contrary to the applicant’s contention, there is no basis to find that the Tribunal did other than comply with the statutory requirements and that the Tribunal was correct in finding that the applicant was notified of the decision on 30 November 2022 and was correct in finding that it had no jurisdiction in the circumstances of the present case.

9. Contrary to the applicant’s contention, the covering letter did identify the 28-day period and did identify that the applicant had been notified by email, and that time would commence at the end of that day. Whilst the applicant has a general assertion of unfairness in relation to ground 1, the Tribunal had no discretion in respect of extending time and no arguable case of relevant error is identified by ground 1.

10. In relation to ground 2, the assertion that the Tribunal did not properly check the notification is without substance. It is patent that the Tribunal turned its mind carefully to the facts as to whether it had jurisdiction, and this Court has done likewise, and the Tribunal was correct in concluding it had no jurisdiction. No arguable ground of error is raised by ground 2.

11. In relation to ground 3, the applicant’s contention that the day that the notification is sent should not be counted is contrary to the decision in DZAFH v Minister for Immigration [2017] FCCA 387 at [44]-[46] and would not, in any event, have assisted the applicant, even if a different construction were adopted. Accordingly, no arguable case of relevant error is raised by ground 3.

12. The Court has taken into account the caution and principles in Spencer v Commonwealth of Australia [2010] HCA 28 and that the power of summary dismissal should only be exercised in the clearest of cases. The Court finds, in this de novo hearing, that the application has no reasonable prospect of success under s 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). In these circumstances there would be no utility in setting aside the Registrar’s orders and reinstating the proceedings. Accordingly, the Court affirms the Registrar’s orders and dismisses the application for review. The first respondent is also accordingly entitled to a further costs order in respect of the application for review which has been dismissed, as the ordinary rule, that costs should follow the event, should be applied.

13. It is for these reasons the Court makes the above orders.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.

Associate:

Dated:       26 April 2024