BMU16 v Minister for Immigration

[2016] FCCA 2294

FEDERAL CIRCUIT COURT OF AUSTRALIA

BMU16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2294

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – show cause hearing – whether the Tribunal had jurisdiction – whether the Department misled the applicant – no jurisdictional error identified – application dismissed.

Legislation:

Federal Circuit Court Rules 2001, r.44.12.

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

Migration Regulations 1994 reg.4.31.

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: BMU16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1550 of 2016

Judgment of: Judge Street

Hearing date: 2 September 2016

Date of Last Submission: 2 September 2016

Delivered at: Sydney

Delivered on: 2 September 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms J Stansfield
DLA Piper Australia

ORDERS

1. The application is dismissed under 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 $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1550 of 2016

BMU16

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) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 16 June 2016, finding that it did not have jurisdiction in respect of an application lodged by the applicant on 25 April 2016. The application was for a review of a decision of the delegate made on 26 July 2012 refusing to grant the applicant a Protection (Class XA) visa.

Background

1. The applicant is a citizen of Malaysia. The applicant first arrived in Australia on 18 May 2006 on a Subclass UD-976 Electronic Travel Authority (Visitor visa). The applicant was refused clearance on that occasion and then departed Australia. Between 22 December 2008 and 29 December 2008, the applicant claimed he travelled to China for a holiday. On 24 December 2009, the applicant arrived in Australia on a Subclass UD-976 Electronic Travel Authority (Visitor visa), which remained effective until 24 March 2010.

2. On 23 March 2010, the applicant lodged an application for a Subclass TU-572 Vocational Educational and Training Sector (Student) visa and was granted an associated Bridging visa A. On 27 April 2010, the applicant was granted the Student visa, which remained in effect until 13 December 2011. On 23 December 2010, the applicant departed Australia. On 13 February 2011, the applicant returned to Australia. On 18 June 2011, the applicant again departed Australia and next returned to Australia on 24 September 2011.

3. On 8 December 2011, the applicant lodged an online application for a further Subclass TU-572 Vocational Educational and Training Sector (Student) visa. On 13 December 2011 the applicant was granted the Student visa.

4. On 16 April 2012, the applicant lodged an application for a Protection (Class XA) visa. The applicant claimed to fear harm in Malaysia from his ex-girlfriend’s family who have allegedly been constantly harassing and threatening the applicant and his family. The applicant also claims to fear harm from the local Islamic religious enforcers and Muslim thugs. He claimed to fear living in a Muslim society and that he was heavily discriminated against due to his Chinese ethnicity.

The Delegate’s Decision

1. The delegate found that the applicant was not a witness of truth. The delegate was not satisfied that the applicant had a real chance of being persecuted for a Refugees Convention reason and was not satisfied that the applicant’s fear of persecution as defined under the Refugees Convention was well-founded.

2. The delegate was not satisfied that Australia owed protection obligations to the applicant because there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there was a real risk the applicant would suffer significant harm. Accordingly, the delegate refused the applicant’s application for protection on 26 July 2012.

3. There is evidence before the Court that the delegate’s decision was sent by registered post to the applicant’s address identified on his application for protection. The tracking number of that registered post was also adduced into evidence.

The Review Application

1. It was not until 25 April 2016 that the application for review of the delegate’s decision by the Tribunal was lodged. By letter dated 29 April 2016, the Tribunal acknowledged the applicant’s application for review. On 9 May 2016, the Tribunal wrote to the applicant, identifying its concern that the application for review was not valid because it was not lodged within the relevant timeframe. The letter identified that the time limit was 28 days from the day on which the applicant was taken to be notified of the delegate’s decision. The letter noted that the delegate’s decision was posted on 26 July 2012 and, on that basis, 6 August 2012 was the date on which the applicant was taken to have been notified.

2. The letter state that, accordingly, the last day for lodging a valid application for review was 3 September 2012 and that the current application was not made until 25 April 2016. The applicant was given the opportunity to comment on the validity of the application by 23 May 2016. No response was provided by that date.

The Tribunal’s Decision

1. On 16 June 2016, the Tribunal found that it did not have jurisdiction to review the decision because the application was not made in accordance with the legislative provisions.

2. The Tribunal noted that pursuant to s.412(1)(b) of the Act and reg.4.31 of the Migration Regulations 1994, an application for review of the delegate’s decision had to be made within 28 days after the applicant was taken to be notified of the decision. The Tribunal noted that the applicant had been notified of the delegate’s decision by letter dated 26 July 2012, which was dispatched by registered post. The Tribunal was satisfied that the applicant had been notified in accordance with the statutory scheme. The Tribunal noted that it had written to the applicant on 29 April 2016 inviting him to comment on the validity of the application and that the applicant had not responded.

3. The Tribunal found that in accordance with s.494C of the Act, the applicant was taken to have been notified of the decision on 6 August 2012. The Tribunal found that the prescribed period within which the review application could be made ended on 3 September 2012. The Tribunal noted that the application for review was not received by the Tribunal until 25 April 2016. The Tribunal found that the applicant’s application for review had therefore not been made in accordance with the relevant legislation. Accordingly, the Tribunal found that it had no jurisdiction to decide the matter.

Proceedings Before this Court

1. On 11 August 2016, a Registrar of the Court fixed the matter for a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001 and provided an opportunity for the applicant to file an amended application, affidavit evidence, and submissions. No such documents were filed by the applicant.

2. At the commencement of the hearing, the Court explained to the applicant that this was a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001. The Court explained that the show cause hearing was to determine whether there was a reasonable argument that the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that, in summary, this meant the Court was considering whether there was a reasonable argument that the Tribunal’s decision was unlawful or a reasonable argument that the decision was unfair. The Court explained to the applicant that if it was satisfied that there was a reasonable argument as to relevant legal error, the application would be fixed for hearing on another day. The Court explained to the applicant that if it was not satisfied that there was a reasonable argument as to relevant legal error, the application would be dismissed.

3. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent, and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

4. From the bar table, the applicant maintained that he could not go back to his country and that he would be threatened if he did so. What was said by the applicant from the bar table amounted to an invitation for this Court to engage in an impermissible merits review of the Tribunal’s decision. This Court has no power to review the merits of the decision. Nothing said by the applicant from the bar table identified any arguable case of jurisdictional error.

Grounds of the Application

1. The grounds of the application are as follows:

   1. I was misled by the officer during the interview.

   2. The Department was giving me incorrect information.

   3. The officer said that I would have to pay more than three thousands if I applied for review in the AAT.

   4. This is not true, so I wish to have another chance.

   (Errors in original.)

2. There is no evidence before the Court to support the assertion that there was any officer of the Department, at the interview or otherwise, that misled the applicant in relation to the time limit in respect of making an application for review.

3. The assertions in grounds 1 to 3 are not supported by any evidence to identify any arguable case of jurisdictional error. I note that in the letter dated 26 July 2012, the Department expressly referred to the applicant’s review rights and referred to the fact that the applicant was entitled to apply to the Refugee Review Tribunal (the “RRT”) for a review of the decision. That letter also noted that the application for a review of the refusal decision must be given to the RRT within the prescribed timeframe. The letter noted that:

   “This timeframe commences on the day on which you are taken to have been notified of the decision, and ends at the end of 28 days.”

4. There is nothing in the letter to suggest that there was any requirement for the applicant to make payment in order to pursue an application for review. I accept the first respondent’s submissions that grounds 1 to 3 fail to identify any arguable case of jurisdictional error in respect of the Tribunal’s decision. To the extent that the applicant wishes to have “another chance” as set out in ground 4, this Court does not have jurisdiction to engage in a merits review of the decision.

5. The findings of fact made by the Tribunal as to the absence of jurisdiction were correct. The Tribunal complied with its statutory obligations in determining whether the application for review was valid. The finding by the Tribunal that the application was not valid was made within the Tribunal’s jurisdiction and was, on the face of the material, correct.

6. There is no material before this Court to establish that the applicant was denied procedural fairness by the Tribunal in its determination of whether the application for review was invalid. It is apparent from the material in the Court Book that the applicant was given the opportunity to comment on the validity of the application in its letter dated 9 May 2016, to which the applicant did not respond.

Conclusion

1. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at paras.[24]-[25] and [59]-[60].

2. I am satisfied that the application fails to disclose any arguable case of jurisdictional error. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules2001.

3. The application is dismissed under r.44.12 of the Federal Circuit Court Rules2001.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 14 September 2016