BJQ15 v Minister for Immigration

[2015] FCCA 3046

FEDERAL CIRCUIT COURT OF AUSTRALIA

BJQ15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3046

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Show Cause hearing – whether application for review was lodged in time – whether notification of decision was dispatched in accordance with statutory regime – no arguable jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.412(1)(b), 476, 494B, 494C(4)(a)

Migration Regulations 1994, r.4.31
Federal Circuit Court Rules 2001, r.44.12

Applicant: BJQ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1958 of 2015

Judgment of: Judge Street

Hearing date: 13 November 2015

Date of Last Submission: 13 November 2015

Delivered at: Sydney

Delivered on: 13 November 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms A Wong
DLA Piper

ORDERS

1. The application is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1958 of 2015

BJQ15

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 the decision of the Tribunal made on 2 July 2015 affirming a decision on 2 July 2015 holding that it does not have jurisdiction in the matter. The Tribunal identified that the delegate had delivered a decision on 29 July 2014 and that the application for review was not lodged until 12 April 2015, well beyond the prescribed period within which the application for review had to be made pursuant to s.412(1)(b) of the Act and r.4.31 of the Migration Regulations 1994.  That time period expired on 4 September 2014.

2. It is clear the letter of notification of the decision was sent on 29 July 2014 consistent with the statutory regime to the applicant’s correct address as identified on the application for review. The applicant accepts that it was his correct address and the Court has evidence confirming the posting of that letter in accordance with s.494B.

3. The applicant has said from the bar table that he did not receive the letter and it does appear from what it is recorded in the Tribunal reasons that the letter sent by registered post was never collected by the applicant. But whether or not the applicant received the letter, the statutory regime deems him to have received it under s.494C(4)(a) within seven days of the posting by registered post. In these circumstances, the Tribunal was correct to hold that it did not have jurisdiction.

4. The grounds of the application are as follows:

   1. The Refugee Review Tribunal alleges that the Notification of Refusal of application for Protection Class XA visa was delivered to me on 29 July 2014 in folio 62 of the Tribunal file there is evidence that the registered post was returned to the Department. At the time the Department had my email address and failed to email it to me or at least telephone me to notify me of the decision which is important to me as I indicated in my previous correspondence to the Department dated 14 April 2014.

   2. The Tribunal had evidence that other correspondence (registered post) was returned to the Department on 8 August 2014 and that I have not received any correspondence from the Department and the Tribunal failed to accept to consider that I was not taken to have received the document where the documents had been returned undelivered to the sender.

   3. The Department as well as the Tribunal failed to properly notify me either by telephone or by email of any decision which was returned to them. It is unreasonable to believe that I was aware that the document was there for me to pick up as I never failed to do so if it was the case.

   4. The Tribunal erred in law by stating that it does not have jurisdiction in this matter as I believe that based on my correspondence to the Department of 14 April 2014 and email from the Department of 14 April 2014 and other correspondence listed in my Affidavit would hopefully lead the Honourable Court to accept my application for review which I did within 28 days from my awareness of the notification being received from the Department.

   5. The Tribunal erred in its finding that I am taken to have been notified of the decision on 9 August 2014 as I was never notified and there is no evidence before me that the Post Office sent me a Notification that I had mail to collect, especially the Department failed to contact me as they did when I was called to complete my biometrics.

   6. I appreciate that the Honourable Court gives me an opportunity to argue my case when I receive copies of all documents.

5. While I accept that the applicant did not receive the letter, both the Tribunal and this Court are bound by the statutory regime and so the absence of receipt of the letter by the applicant does not give rise to any jurisdictional error or arguable jurisdictional error. I accept the submissions of the first respondent that it is clear that the notification was despatched in compliance with s.494B(4) and within the time period specified in s.494C(4)(a). The application fails to disclose any arguable jurisdictional error.

6. I accept that this is an appropriate matter in which to exercise the Court’s powers under r.44.12(1)(a) of the Federal Circuit Court Rules 2001.  The application is dismissed.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  24 November 2015