BFV15 v Minister for Immigration

[2015] FCCA 3381

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFV15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3381

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection visa – bias – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal erred in finding that it did not have jurisdiction to hear the application – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.412, 476, 477, 494C

Applicant: BFV15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1830 of 2015

Judgment of: Judge Street

Hearing date: 16 December 2015

Date of Last Submission: 16 December 2015

Delivered at: Sydney

Delivered on: 16 December 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Ms R Krishnan
Australian Government Solicitors

ORDERS

1. The application for an extension of time under s.477 of the Migration Act 1958 is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $2638.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1830 of 2015

BFV15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 22 May 2015, holding that the Tribunal did not have jurisdiction.

2. The delegate found the applicant was a citizen of China, and the applicant arrived in Australia on 21 February 2012 on a class FA (subclass 600) Tourist visa.  The applicant lodged an application for protection on 24 February 2014.

3. The delegate identified that the applicant claimed to fear persecution by reason of his practice of Falun Gong and identified the applicant had gone to Korea between 2002 and 2009, working in the construction industry. The delegate found the applicant not to be a credible witness and rejected the applicant’s claim for a protection visa on 2 October 2014.

4. An initial application for review was made on 12 November 2014. On 17 November 2014, the first Tribunal wrote a letter to the applicant identifying a concern as to the validity of the application, not having been lodged within the 28 days of the primary decision, in accordance with s.412 and taking into account the deemed time of receipt of the notification of the delegate’s decision under s.494C.

5. On 9 December 2014, the applicant’s migration agent responded to that letter, asserting that the application for review was put in the post on 4 November 2014.  On 9 January 2015, in response to the application for review that had been filed, the first Tribunal found that it did not have jurisdiction, as the application for review was not made within the 28-day period.

6. What thereafter appears to have occurred is that, on 6 April 2015, the applicant lodged a further application for review to the Tribunal in respect of the same decision of the delegate.  On 29 April 2015, the second Tribunal, in relation to the application lodged on 9 April 2015, wrote to the applicant’s migration representative, identifying the date of the decision of the delegate and identifying the date of the first application for review and identifying that the Tribunal had no jurisdiction, and the issue was raised as to whether the current application was a valid application.

7. The applicant’s migration agent responded to that letter dated 29 April 2015 by a letter dated 11 May 2015, asserting an explanation as to the posting of the original application for review to the first Tribunal.  In the decision dated 22 May 2015, the second Tribunal identified the history of the matter and found that the application to the first Tribunal had not been made in time and that there was no jurisdiction either by the first Tribunal, as a result of the previous application, or by reason of the application made to the second Tribunal.

8. The grounds of the application are as follows:

   1. I have financial hardship to pay court fees. To apply for exempt, time for gathering documents is not enough so I applied for extension of time.

   2. The notice that my application was rejected by RRT was send to me to late till only last week.

9. On 6 August 2015, a Registrar of the Court made orders fixing the matter for hearing and providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed.

10. The application filed in this Court on 1 July 2015 makes reference to a decision of the second Tribunal made on 22 May 2015 and, to the extent relevant, requires an extension of time under s.477 of the Migration Act 1958.  An extension of time requires both a satisfactory explanation for the delay and a sufficiently arguable case to warrant an extension of time in the interests of the administration of justice.

11. No affidavit evidence was put on in support of the explanation for the delay, albeit that, in the application, the applicant said he had financial hardship to pay Court fees and was applying for exemption in that regard and said that notice of the rejection by the Tribunal of his decision was only sent to him last week.

12. On any view, the explanation by the applicant is inadequate, whether the application be treated as one relating to the Tribunal’s decision on 9 January 2015 or in relation to the decision of the Tribunal made on 22 May 2015.  The omission by the applicant of any reference to the earlier decision, dated 9 January 2015, is also inconsistent with the applicant’s assertions about the time of notification of rejection and explanation for delay.

13. From the bar table, the applicant sought to explain that his migration agent had sent the first application on time to the first Tribunal. Nothing said by the applicant from the bar table provides a satisfactory explanation for the delay, and on that ground alone, I would refuse to extend time under s.477.

14. Insofar as the grounds are concerned, the application fails to identify any sufficiently arguable case to warrant an extension of time in the interests of the administration of justice. The reference to discrimination appears to be an allegation of bias.  Bias must be clearly alleged and properly proved.  No case of bias is open on the material before the Court. Nothing said in ground 1 identifies any arguable jurisdictional error.

15. Ground 2 is a generalised assertion of a denial of fairness, which fails to identify any arguable error.  On the material before the Court, the first Tribunal was clearly correct in holding that it did not have jurisdiction, and equally, the second Tribunal, to the extent it had power to do so, was correct in holding that the first Tribunal did not have jurisdiction and that the second Tribunal did not have jurisdiction.

16. I should add that, in addition to the want of compliance with the 28-day period identified under s.412, apart from circumstances in which orders are made by a Court, once an application for review has been made under s.412 and determined by the Tribunal, there is no power for the Tribunal to receive and deliberate upon a second application in respect of the same delegate’s decision.

17. For these reasons, the second Tribunal was correct in holding that it had no jurisdiction, and nothing said by the applicant or identified in the application identifies any arguable jurisdictional error by the second Tribunal that decided the matter on 22 May 2015

18. To the extent that the application filed in the Court might be construed as seeking to pursue an application for relief in relation to the decision of the first Tribunal made on 9 January 2015, again, an order under s.477 would be required. I am not satisfied that there is an adequate explanation for the delay, and on that ground, any such application would be dismissed.

19. Further, for the reasons given, the first Tribunal that decided the matter on 9 January 2015 was correct in holding that it did not have jurisdiction, and accordingly, there is no sufficiently arguable case of jurisdictional error in relation to the first Tribunal’s decision dated 9 January 2015 such as would warrant an extension of time.  The application for an extension of time is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 18 December 2015