Bje16 v Minister for Immigration and Border Protection
[2017] FCA 1286
•6 November 2017
FEDERAL COURT OF AUSTRALIA
BJE16 v Minister for Immigration and Border Protection [2017] FCA 1286
Appeal from: BJE16 v Minister for Immigration and Anor [2017] FCCA 1201 File number: NSD 773 of 2017 Judge: BESANKO J Date of judgment: 6 November 2017 Catchwords: MIGRATION – consideration of an appeal from a decision of the Federal Circuit Court dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal – where the appellant was given notice of the original decision of the Minister for Immigration and Border Protection’s delegate – where the appellant purported to lodge an application for review with the Tribunal which was outside the prescribed period – where the Tribunal notified the appellant that it did not consider his application for review to be valid and invited him to make any comments – where the Tribunal did not receive any comments from the appellant – where the Tribunal decided that it did not have any jurisdiction in the case of the appellant’s application for review. Legislation: Migration Act 1958 (Cth) ss 411, 412, 414, 425, 494C
Migration Regulations 1994 (Cth) reg 4.31
Date of hearing: 1 November 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 12 Counsel for the Appellant: The appellant appeared in person Solicitor for the First Respondent: Ms N Johnson of Mills Oakley Counsel for the Second Respondent: The second respondent entered a submitting notice, save as to costs ORDERS
NSD 773 of 2017 BETWEEN: BJE16
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BESANKO J
DATE OF ORDER:
6 NOVEMBER 2017
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of and incidental to the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BESANKO J:
This is an appeal from an order made by the Federal Circuit Court. On 5 May 2017, the Federal Circuit Court made an order dismissing the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (BJE16 v Minister for Immigration and Anor [2017] FCCA 1201). For the reasons which follow, the appeal should be dismissed.
The appellant is a citizen of Fiji who last arrived in Australia on 10 February 2015. On 15 January 2016, he made an application for a Protection visa and he gave as his current residential address an address in Auburn, New South Wales.
On 8 March 2016, a delegate of the Minister decided that the appellant’s application should be refused. The appellant was advised of the decision by a letter to the appellant at the Auburn address dated 8 March 2016. That letter was sent by post on 9 March 2016.
The delegate’s decision was a “Part 7 – reviewable decision” within s 411 of the Migration Act 1958 (Cth) (the Act), that is to say, a decision to refuse a Protection visa. By reason of s 412 of the Act, an applicant may make an application for a review of such a decision by the Tribunal, but to validly do so, an applicant must make an application to the Tribunal within the prescribed period. That period in this case is 28 days after the notification of the decision (see reg 4.31(2) of the Migration Regulations 1994 (Cth)). The Act provides for when a person is taken to have been given notice of the decision. In the case of notice by prepaid post from a place in Australia to an address in Australia, s 494C(4) provides that a person is taken to have received the document seven working days after the date of the document. In this case, the unchallenged finding is that the notification of the decision was taken to have been given on 17 March 2016.
The appellant purported to make an application for review to the Tribunal on 26 April 2016. The address given by the appellant in the application for review was the Auburn address. He also gave an email address.
On or about 28 April 2016, the Tribunal sent a letter to the appellant at his email address advising him that it did not consider that his application for review was a valid one and inviting him to make any comments by 12 May 2016.
The Tribunal did not receive any comments and, on 27 May 2016, the Tribunal decided that it did not have any jurisdiction in the case of the appellant’s application for review because of the operation of s 412(1)(b), reg 4.31 and s 494C(4).
The appellant lodged an application for judicial review on 31 May 2016. In that application, he challenged the Minister’s decision. In his Amended Application dated 16 September 2016, he challenged the Tribunal’s decision. The grounds in his Amended Application were as follows:
1.The Administrative Appeals Tribunal constructively failed to exercise jurisdiction in that it failed to recognise and take in to account and consideration that it had jurisdiction on the circumstances of my particular claims and case.
2.The Administrative Appeals Tribunal constructively failed 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.
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.
4.I also rely on, in the alternative all the grounds in my original application in addition to the grounds outlined from paragraphs 1 to 3 above.
(errors in original).
The appellant appeared in person before this Court. He had the assistance of an interpreter. He said that he relied on the same matters which he relied on in the Federal Circuit Court. That is the only submission he made.
The primary judge referred to the grounds in the original application and said that it was not open to the Court to review the Minister’s decision because there was a right to seek review of that decision in the Tribunal. That conclusion is correct.
The primary judge then turned to consider the appellant’s Amended Application. He rejected the appellant’s allegation that the Tribunal had failed to exercise jurisdiction in relation to his application for review. The obligation to review under s 414 of the Act only arose in relation to a valid application for review under s 412 of the Act and the appellant had not made a valid application for review under s 412. The primary judge also rejected an argument that the Tribunal failed to comply with s 425 of the Act. There was no such failure because the obligation to give an applicant an opportunity to appear before it only arose in relation to a decision under review and there was no decision under review. The primary judge rejected a complaint of a denial of procedural fairness observing that in the one area the Tribunal was obliged to afford the appellant procedural fairness i.e., its view that the appellant had not made a valid application for review, it had done so.
I have carefully considered the reasons of the primary judge. In my opinion, he did not err and, in those circumstances, the appeal must be dismissed with costs.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate:
Dated: 6 November 2017
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