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

The application is dismissed.
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

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.
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.
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.
The Tribunal identified the requirements of s 412(1)(b) of the

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 1477
Decision Date: 30 May 2019

CaseChat Overview and Summary

The applicant, Boq15, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which found it lacked jurisdiction to consider an application for a Protection (Class XA) visa. The core of the dispute concerned whether the AAT had the power to review the applicant's visa application, given that the review application was not lodged within the prescribed time period.

The central legal issue before the court was whether the AAT had correctly concluded that it had no jurisdiction to entertain the applicant's review application. This required the court to determine if the AAT had made a jurisdictional error in finding that the time limit for lodging the review application was a bar to its power to hear the matter.

Judge Street reasoned that the Migration Act 1958 (Cth) and associated regulations prescribe strict timeframes for lodging applications for review with the AAT. The applicant had failed to meet these time requirements. The AAT, in applying these legislative provisions, correctly determined that it lacked the statutory power to consider an application lodged outside the stipulated period. Consequently, no jurisdictional error was made out. The application was therefore dismissed.

Orders