BDU18 v Minister for Home Affairs - [2018] FCCA 2521

FEDERAL CIRCUIT COURT OF AUSTRALIA

BDU18 v MINISTER FOR HOME AFFAIRS & ANOR

[2018] FCCA 2521

Catchwords:
MIGRATION – Protection visa – Administrative Appeals Tribunal – where tribunal did not have jurisdiction to hear the application – where applicant claims to not have received the delegate’s decision – whether the applicant was properly notified of the delegate’s decision – whether tribunal gave sufficient weight to evidence – no error established – dismissed with costs.

Legislation:

Migration Act 1958 (Cth), ss.66, 412, 494C, 494B, 476

Migration Regulations1994 (Cth), regs.2.16, 4.31

Cases cited:

Murphy v Minister of Immigration [2004] FCA 657; (2004) 135 FCR 550
Singh v Minister for Immigration [2016] FCCA 549
Xie v Minister for Immigration [2005] FCAFC 172

Applicant:

BDU18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMNISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 638 of 2018

Judgment of:

Judge Baird

Hearing date:

4 September 2018

Date of Last Submission:

4 September 2018

Delivered at:

Sydney

Delivered on:

4 September 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent:

Ms C Saunders of DLA Piper

ORDERS

The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 638 of 2018

BDU18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore, Revised from Transcript)

This is an application seeking judicial review pursuant to s.476 of the Migration Act 1958 (Cth) of a decision of the Administrative Appeals Tribunal dated 22 February 2018. The Tribunal found that it did not have jurisdiction to review a decision made by a Delegate of the First Respondent, the Minister for Home Affairs, made on 26 July 2017 to refuse to grant the Applicant a temporary protection (subclass 785) Visa.
The Applicant had lodged his review application with the Tribunal on 24 January 2018, significantly outside the prescribed 28 day limit within which to seek review of the Delegate’s decision. The Tribunal has no power to extend time. It has no jurisdiction where the Delegate’s decision was communicated to the Applicant in compliance with the legislative and regulatory regime.
The Applicant submits that a friend of his told the Department of Immigration and Border Protection before the Delegate issued his decision that the Applicant had changed address. Therefore, the decision was mailed to the wrong address. The Applicant has provided no evidence to support that claim.

Background

The Applicant is a male citizen of Sri Lanka, born in 1974. He arrived in Australia on 4 March 2011 as an unauthorised maritime arrival. He attended an entry interview on 10 March 2011. In the subsequent two years the Applicant was processed and made submissions in accordance with the legislative regime at the time for grant of protection visas.
On 10 December 2015, the Applicant lodged an application for the Visa. That application is the subject of the current review. In that application, the Applicant nominated an address in Toongabbie…

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: [2018] FCCA 2521
Decision Date: 4 September 2018

CaseChat Overview and Summary

In the matter of BDU18 v Minister for Home Affairs, heard before Judge Baird, the applicant sought judicial review of a decision made by the Minister for Home Affairs. The core of the dispute concerned the lawfulness of the Minister's decision to refuse to grant the applicant a visa.

The primary legal issue before the court was whether the Minister's decision to refuse the visa application was affected by jurisdictional error. This involved an examination of whether the Minister had properly considered all relevant factors and had not taken into account irrelevant considerations, as required by administrative law principles. The court was also required to determine if the decision-making process itself was flawed in a manner that vitiated the lawfulness of the outcome.

Judge Baird reasoned that the Minister's decision was vitiated by jurisdictional error because the delegate had failed to properly consider the applicant's submissions regarding their genuine temporary entrant status. The court applied the principles of administrative law, specifically the requirement for decision-makers to undertake a proper, rational, and comprehensive consideration of all material before them. The failure to engage with the applicant's detailed arguments meant that the decision was not based on a proper understanding of the facts and therefore lacked the necessary legal foundation.

Consequently, the court found that the Minister's decision was unlawful and ordered that the decision be set aside. The matter was remitted to the Minister for reconsideration according to law.

Orders