BJE16 v Minister for Immigration

[2017] FCCA 1201

FEDERAL CIRCUIT COURT OF AUSTRALIA

BJE16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1201

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred in failing to constructively exercise jurisdiction – whether the Tribunal breached s.425 of the Migration Act 1958 (Cth) – whether the applicant was denied procedural fairness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.4(1), 66, 411, 412, 414, 425, 494C

Migration Regulations 1994 (Cth), reg.4.31

Applicant: BJE16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1413 of 2016

Judgment of: Judge Smith

Hearing date: 5 May 2017

Date of Last Submission: 5 May 2017

Delivered at: Sydney

Delivered on: 5 May 2017

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Ms S. He, Mills Oakley

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1413 of 2016

BJE16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore & Revised)

1. The applicant is a citizen of Fiji, who last arrived in Australia on 10 February 2015. On 15 January 2016, he lodged an application for a protection visa. In that application, he gave as his current residential and postal address, an address in Auburn, New South Wales.

2. On 8 March 2016, the delegate of the Minister made the decision to refuse to grant the applicant a protection visa. When the Minister or one of his delegates makes such a decision, he is required to notify the applicant of the decision in the prescribed way: see s.66 of the Migration Act 1958 (Cth) (Act). The delegate complied with that requirement by sending a letter to the applicant dated 8 March 2016 to the applicant’s address in Auburn. The letter enclosed a statement of reasons for the decision, including the criteria which the delegate was not satisfied were met by the applicant.

3. The decision made by the delegate was a Pt.7 reviewable decision within the meaning of s.411 of the Act. That means that the applicant was able to make an application to the Administrative Appeals Tribunal (Tribunal) for review of that decision. Section 412 of the Act read with reg.4.31 of the Migration Regulations 1994 (Cth) required that such an application be made no later than 28 days after notification of the decision.

4. In this case, the evidence establishes that the letter dated 8 March 2016 was sent by post on 9 March 2016. As it was sent within three days of the date upon which it was dated, to the address given by the applicant for the purposes of receiving documents in connection with the application, the applicant was taken to have received the document seven working days after the date of the document: that is, on 17 March 2016[1].

   [1] See s.494C of the Act.

5. In order to make a valid application for review, the applicant was required to lodge his application at the Tribunal no later than 14 April 2016; however, his application to the Tribunal was only lodged on 26 April 2016. It may be noted that in his application for review, the address given by the applicant was the same address as had been given in his application for a protection visa. The applicant also gave an email address for the purposes of correspondence with the Tribunal.

6. By letter dated 28 April 2016, sent to the applicant at his email address, the Tribunal indicated to the applicant its view that the application was not a valid application because it was not lodged within the relevant time limit. The Tribunal invited the applicant to make comments on whether a valid application was made. No response was made to that invitation and on 27 May 2016, the Tribunal determined that it did not have jurisdiction because the application had not been received by it on time.

7. The applicant now seeks judicial review of the Tribunal’s decision. He raises a number of grounds both in his application and in affidavits filed on his behalf.

Grounds of originating application

1. The first ground in the application is that the decision of the Minister dated 8 March 2016 was “legally unreasonable in that it is irrational, unjust and plainly unfair”. That may or may not be the case; however, the decision of the Minister’s delegate dated 8 March 2016 cannot be reviewed by this Court. That is because there was a right to seek review of that decision in the Tribunal.

2. The second, third and fourth grounds in the application also take issue with the Minister’s decision. They must be rejected for the same reason as the first ground.

Amended application

1. In his amended application, the applicant raises three new grounds, as well as relying upon the grounds in his originating application. The three new grounds relate to the Tribunal.

First ground

1. The first ground is:

   [1]The Administrative Appeals Tribunal constructively failed to exercise jurisdiction in that it failed to recognise and take in to [sic] account and consideration that it had jurisdiction on the circumstances of my particular claims and case.

2. If the Tribunal did, in fact have jurisdiction, then it did not constructively fail to exercise that jurisdiction; it actually failed to exercise that jurisdiction. The question therefore is whether the Tribunal had jurisdiction or not.

3. As I have explained above, the application to the Tribunal was lodged outside the time required by s.412 of the Act. The jurisdiction of the Tribunal is provided for in s.414 of the Act. Section 414(1) of the Act provides:

   Tribunal to review Part 7-reviewbale decisions

   (1)Subject to subsection (2), if a valid application is made under section 412 for review of a Part 7-reviewable decision, the Tribunal must review the decision.

4. Subsection (2) is not relevant.

5. In light of the failure of the applicant to lodge his application for review in time, there was no valid application under s.412 and so there was no jurisdiction in the Tribunal under s.414. For that reason, the first ground in the amended application must fail.

Second ground

1. The second ground in the amended application is:

   [2]The Administrative Appeals tribunal constructively ailed to exercise jurisdiction in that it failed to and was in breach of section 425 of the Migration Act 1958 for failing to review my application.

2. Section 425 of the Act requires the Tribunal to invite an applicant “to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”. As the words “under review” make clear, the obligation in s.425 does not arise unless, and until, the Tribunal has jurisdiction to review the delegate’s decision. For that reason, there was no obligation on the Tribunal to invite the applicant to attend the hearing.

3. I would note that the critical issue for the Tribunal was whether or not it had jurisdiction. The Tribunal invited the applicant to comment upon the possibility that it did not have that jurisdiction. In that way, the Tribunal afforded the applicant procedural fairness in relation to the issues that arose before it. The second ground is rejected.

Third ground

1. The third ground in the amended application (without correction) is that:

   [3]The Administrative Appeals Tribunal denied me procedural fairness and its decision was and is legally unreasonable in that it failed to recognise and take in to account and consideration that it had jurisdiction given the fact that, the Minister had not notified me of it decision according to law and that that brought my case to be a re viewable decision according to law and that the Tribunal did have jurisdiction.

2. I have already explained why the Tribunal did not have jurisdiction and also observed that the Tribunal afforded the applicant procedural fairness. In light of those earlier conclusions, ground 3 must be rejected.

3. The applicant relies upon two affidavits. In his affidavit sworn 1 June 2016, the applicant also raises a number of grounds of review. At [10], he says that the Minister’s decision was legally unreasonable. However, as I have already explained, this Court has no jurisdiction in respect of the Minister’s decision.

4. In paragraphs [11], [12] and [13] of the 1 June affidavit, the applicant also complains about the Minister’s decision and must be rejected for the same reason. The applicant then makes a number of claims that relate to his protection visa claims, but again have no bearing upon the issues to be determined by this Court in an application for judicial review.

5. In the applicant’s second affidavit sworn 16 September 2016, the applicant effectively repeats the grounds in his amended application.

6. There is no jurisdictional error in the Tribunal’s decision. It was correct to conclude, on the basis of the lateness of the application, that the Tribunal had no jurisdiction, and for that reason the application is dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate:

Date:  13 June 2017