BMY18 v Minister for Home Affairs

[2019] FCCA 1381

FEDERAL CIRCUIT COURT OF AUSTRALIA

BMY18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1381

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – out of time application – whether the Tribunal complied with the requirements of procedural fairness – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.494C(5)

Migration Regulations1994 (Cth), r.4.31

Cases cited:

DFQ17 v Minister for Immigration & Border Protection [2019] FCAFC 64

Applicant: BMY18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 812 of 2018

Judgment of: Judge Humphreys

Hearing date: 23 May 2019

Date of Last Submission: 23 May 2019

Delivered at: Parramatta

Delivered on: 23 May 2019

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondents: Mr Reilly

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 812 of 2018

BMY18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”), dated 19 March 2018. That decision found that the Tribunal did not have jurisdiction to conduct a review of a decision of the delegate of the Minister dated 9 January 2018, to refuse to grant the applicant a Protection (Class XA) visa.

Background

1. The applicant is a Chinese national. The applicant complains that his land in China was expropriated because of low compensation. The applicant petitioned, but alleges that he was harmed by the government. The applicant left China as he feared persecution by the government.

2. I am reasonably satisfied that the applicant was advised by email to his nominated email address on 9 January 2018, that the delegate of the Minister had refused his application for a Protection visa. In this regard, I refer in particular to an annexure to the affidavit of Anna Davyskib, which confirms that the refusal letter was indeed sent at 14.35.49 on 9 January 2018 to the applicant’s email address, which the applicant confirmed here today was his nominated email address.

3. The applicant filed an application seeking review of the delegate’s decision by the Tribunal on 6 March 2018. This was outside the prescribed time limit of 28 days from the date of notification of the delegate’s decision, as per r 4.31 of the Migration Regulations1994 (Cth).

4. In a short decision of 19 March 2018, the Tribunal determined it had no jurisdiction to hear the application for review as the application was outside the prescribed 28 day time period. I note at this point that there is no discretion by the Tribunal to extend the time period for the lodgement of applications for review in this type of matter.

The Grounds of Appeal

1. The grounds of appeal are quite short. They are as follows:

   1. There exists procedural unfairness.

   In the refusal notification from the Department, it is stated that an application for review must be given to the AAT within 28 days.

   However, it does not tell the commencing date of 28 days. Further, Tribunal did not respond to this issue.

   2. Tribunal does not consider my case fairly.

   Tribunal avoided considering whether the Department gave clear instruction to lodge application for review, which is not fair to me.

   3. Tribunal avoided considering whether the Department disclosed information to me properly.

2. In my view, this case is clearly distinguishable from the decision in DFQ17 v Minister for Immigration & Border Protection [2019] FCAFC 64, being a decision of Rares, Perram and Farrell JJ.

3. The letter received by the applicant denying his application for a protection visa, is set out at page 75 to 77 of the Court book. It relevantly states:

   “An application for merits review of the refusal decision must be given to the AAT within the prescribed timeframe. The timeframe commences on the date on which you are taken to be notified of this decision and ends at the end of 28 days.”

4. Pursuant to s 494C (5) of the Migration Act 1958 (Cth), “a person is taken to have received documents by email at the end of the day in which the document is transmitted.” This section makes it clear that the applicant had 28 days from 9 January 2018 as a matter of law. The applicant’s application to the Tribunal on 6 March 2018 was thus well out of time.

5. I am satisfied that the Tribunal complied with its procedural fairness obligations in that it invited the applicant to comment upon the issue of his application being out of time prior to making its final determination. I am thus satisfied that Grounds 1 and 2 of the application to this Court cannot be sustained. Procedural fairness was complied with and there is nothing in the case that indicates that the Tribunal did not act in any way other than fairly. In this regard, I note in particular that the letter the applicant received from the Department clearly stated that:

   “As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.”

6. No evidence has been tendered by the applicant disputing the receipt of his refusal letter on 9 January, or on some other date other than the date of transmission. The applicant’s response to a question of when he received the letter was simply “I did not receive it.” This in my view does not in any way rebut any presumption that the applicant did receive the letter on 9 January.

7. Ground 3 of this application for review stated that the Tribunal avoided considering whether the Department disclosed information to the applicant properly. This ground does not disclose to my view a proper ground for review which is within the Court’s jurisdiction. Once it determined that the application was received out of time, the Tribunal had no jurisdiction to review the original delegate’s decision. Having found that the application is out of time, this Court has no jurisdiction either, as there is no error of law apparent on the decision. Ground 3 therefore cannot be sustained.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Associate:  

Date:  26 June 2019