Boq15 v Minister for Immigration

[2019] FCCA 1477

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOQ15 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1477

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – application for review not made within the relevant time period – whether the Tribunal was correct to conclude that it had no jurisdiction – whether the Tribunal had no power to review that application – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.66, 412, 476, 494B, 494C

Migration Regulations 1994 (Cth), r.4.31

Cases cited:

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

Applicant: BOQ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2128 of 2015

Judgment of: Judge Street

Hearing date: 30 May 2019

Date of Last Submission: 30 May 2019

Delivered at: Sydney

Delivered on: 30 May 2019

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr M Smith

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the amount of $6,400.00.

DATE OF ORDER: 30 May 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2128 of 2015

BOQ17

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 1 July 2015 holding that it did not have jurisdiction in respect of a decision made by the delegate 24 February 2015 refusing to grant the applicant a Protection (Class XA) visa.

2. The applicant is a citizen of China. The Tribunal found that the applicant had been notified of the delegate’s decision under s 494C of the Act, which notification was taken to have taken effect on 5 March 2015, as a result of the sending of a letter dated 24 February 2015 to a post office box address in relation to the applicant.

3. The applicant in completing the form for the visa had identified in question 17 that he had had assistance in completing the form and provided the details of the person and the address in respect of that assistance. That address in question is the same post office box identified in question 22 to which the letter dated 24 February 2015 was sent. That post office box address was also identified in question 18 of Part B of the application for a protection visa, which referred to “Your current postal address in Australia (if the same as residential address, please write ‘same as residential’)”. A different residential address had been completed. A reasonable reader of the protection visa application in these circumstances would understand the applicant to have provided the post office address for the purpose of receiving documents.

4. The Tribunal identified the requirements of s 412(1)(b) of the Act and r 4.31 of the Migration Regulations 1994 (Cth) (“the Regulations”), requiring the application for review to be made within 28 days of the applicant being notified of the decision in accordance with the statutory requirements.

5. The letter of notification in the present case is materially different to the letter that was the subject of consideration in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 (“DFQ17”), in which the majority found that there had been noncompliance with the requirements of s 66(2)(d)(ii) of the Act. In the circumstances of the present case it is apparent, under the section in respect of review rights, that there were details provided in respect of the review period and the time within which the applicant was taken to have received the letter.

6. The letter the subject of the Full Court’s decision in DFQ17 had a very different structure to it, and a reference to the deeming consequences of s 494C of the Act that had effect were not patent, as is the circumstances of the present case. It was a decision of a majority and DFQ17 is clearly distinguishable because of the different form of letter in the present case. The Court finds the requirements of s 66(2)(d)(ii) of the Act in respect of the letter sent to the applicant dated 24 February 2015 that was the subject of affidavit evidence in respect of the sending of same were complied with. The present case is also distinguishable from the reasoning of the learned Rares J, for the reasons already identified.

7. In these circumstances, the Tribunal was correct to conclude that it had no jurisdiction because the application was not made within the relevant period after the deemed notification in accordance with s 494C of the Act. The Court finds in the present case that the post office box provided by the applicant was the last address for service provided to the Minister by the applicant for the purpose of receiving documents, in respect of the requirements of s 494B of the Act.

8. The Tribunal, after receipt of the review application lodged on 11 May 2015, wrote to the applicant on 19 May 2015 inviting the applicant to comment on the validity of the application and referring to the notification period. The applicant provided a response on 1 June 2013, in which the applicant identified having difficulty with the online lodgement and immediately sending a paper review application through Australian Post. That response, dated 1 June 2013, did not establish that there was posted within the review period the application for the review.

9. The Tribunal referred to and took into account those submissions and found there was no evidence that the applicant attempted to check that the application had arrived at the Tribunal. The Tribunal found that if in fact it had been sent by post, such an action would have been undertaken. The Tribunal did not accept the applicant’s contentions in the letter dated 1 June 2015, erroneously dated 1 June 2013.

Before this Court

1. The proceedings in this Court were commenced on 30 July 2015. On 3 September 2015, a Registrar of the Court made orders giving the applicant an opportunity to put on an amended application, affidavit evidence, and submissions. No such documents were filed.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed he understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant candidly acknowledged that he had made a mistake. The applicant’s candid acknowledgement is to his credit, but does not enliven any power by this Court to grant relief to the applicant. The Court cannot decide the matter on compassionate or discretionary grounds, nor can the Court revisit the merits. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds

1. The grounds in the application are as follows:

   Orders sought by Applicant

   1. I disagree with Immigration and the Migration and Refugee Division of the AAT's decision. They did not consider that I have fears to return to my home country. They did not consider the fact that I had compelling reasons not to apply for the Migration and Refugee Division of the AAT within the time limit. And I did try my best to seek help.

   2. DIBP and the Migration and Refugee Division of the AAT did not give a good consideration as I had strong reasons which was out of my control for delaying my the Migration and Refugee Division of the MT review application.

   3. The Migration and Refugee Division of the AAT should accept for my review application based on the compelling reason.

   The Grounds of the Application are:

   1. I am a Chinese citizen and a genuine Falungong practioner. I can not return to China. If I am forced to leave, I will be in danger.

   2. The Migration and Refugee Division of the MT did not give good consideration for my explanation.

   3. It is not fair not to accept my review application. I need protection from Australian government.

Paragraphs 1 to 3

1. In relation to paragraph 1, the Tribunal had no power to dispense with the statutory requirement in respect of the time period within which the application had been lodged. It was not in those circumstances necessary, nor was the Tribunal able to consider whether there were compelling reasons as to why the applicant had not applied within time. Paragraph 1, in substance, is an invitation to this Court to engage in merits review.

2. Neither this Court nor the Tribunal had any discretion to apply in relation to the requirement for invoking the jurisdiction of the Tribunal. It is apparent on the evidence before the Court that the applicant did not apply within the relevant time period, which was a mandatory criteria. No jurisdictional error is made out by paragraph 1 of the orders sought.

3. In relation to paragraph 2 of the orders sought, the applicant complains that he had strong reasons which were out of his control for delaying his review application. That appears to be a reference back to what was said in the communication sent on 1 June 2015. The Tribunal had no discretion to apply in that regard and nothing in paragraph 2 of the orders sought identifies any jurisdictional error.

4. In relation to paragraph 3, this again erroneously assumes the Tribunal had some criteria to apply in respect of compelling reasons. No such criteria had application. The Tribunal correctly found the applicant did not meet the mandatory criteria. No jurisdictional error is made out by paragraph 3 of the orders sought.

Ground 1

1. In relation to ground 1, this refers to the applicant’s substantive claim that was considered by the Delegate in respect of his application for protection. The Tribunal had no power to review that application given that the application for review was not lodged within time. Ground 1 otherwise is an invitation to this Court to engage in merits review. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, this in substance seeks to reagitate the applicant’s explanation concerning the delay in the lodging of the application for review. For the reasons already given, the Tribunal had no discretion to apply in relation to whether or not the applicant had complied with the same. Ground 2 fails to make out any jurisdictional error.

Ground 3

1. In relation to ground 3, it is apparent that the Tribunal did give the applicant another opportunity to comment on the validity of the application and that the applicant responded. That response was taken into account by the Tribunal. Nothing in ground 3 identifies any jurisdictional error.

2. For the reasons already given, the Court is satisfied that the circumstances in this case are clearly distinguishable from both the majority’s reasoning in DFQ17 supra as well as the reasoning of the learned Rares J. As no jurisdictional error has been made out, the application is dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  26 June 2019