BPK16 v Minister for Immigration

[2016] FCCA 2181

FEDERAL CIRCUIT COURT OF AUSTRALIA

BPK16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2181

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Bridging E (Class WE) visa – whether Tribunal erred in holding that it did not have jurisdiction – whether the Tribunal erred in finding that the application for review was made out of time – whether the Tribunal complied with the statutory regime – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116, 338, 347, 476, 477

Migration Regulations 1994, regs.2.43(1)(p)(ii), 2.55, 4.10(1)(b)

Applicant: BPK16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1149 of 2016

Judgment of: Judge Street

Hearing date: 26 August 2016

Date of Last Submission: 26 August 2016

Delivered at: Sydney

Delivered on: 26 August 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Mr A Markus
Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $4,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1149 of 2016

BPK16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

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 4 March 2016, holding that it did not have jurisdiction to review a decision of the delegate, cancelling the applicant’s Bridging E (Class WE) visa. 

2. The applicant is a citizen of Iran. The applicant was charged with a number of offences in relation to a range of alleged criminal conducts on 31 January 2015, 7 February 2015, 13 February 2015, 25 June 2015, 16 July 2015 and 30 July 2015. As a result of those charges, by letter dated 22 September 2015, a Notice of Intention to Consider Cancellation was sent to the applicant’s last-known residential address. That letter informed the applicant of the ground for cancelling his visa and invited him to an interview on 8 October 2015 to comment on that ground. The applicant did not respond to that letter nor did he attend the scheduled interview.

The Delegate’s Decision

1. On 19 October 2015, the delegate cancelled the applicant’s Bridging E visa. The delegate noted that according to a Fact Sheet issued by the New South Wales police, the applicant had been charged with a number of offences against the law of New South Wales. The delegate was satisfied there were grounds for cancellation under s.116(1)(g) of the Act and reg.2.43(1)(p)(ii) of the Migration Regulations 1994 (Cth) (“the Regulations”). The delegate then considered whether or not to cancel the applicant’s visa. The delegate noted that the applicant had not attended the scheduled interview on 8 October 2015 and therefore did not respond to the Notice of Intention to Consider Cancellation. In the circumstances, the delegate cancelled the applicant’s visa pursuant to s.116(1)(g) of the Act and reg.2.43(1)(p)(ii) of the Regulations.

2. On the evidence before the Court, the applicant was taken into custody on 16 October 2015. On 10 December 2015, the applicant received various sentences from the Local Court in relation to a number of criminal offences, with a non-parole period expiring, relevantly, on 25 February 2016. The applicant was released from custody on 25 February 2016 and was taken directly to an immigration detention centre. On 26 February 2016, the applicant applied for review of the delegate’s decision by the Tribunal. 

The Tribunal’s Decision

1. On 1 March 2016, the Tribunal wrote to the applicant, identifying that the delegate’s decision was posted to him on 19 October 2016 and that the applicant was taken to be notified of the delegate’s decision on 28 October 2015. The letter identified that the applicant had seven working days within which to apply for review by the Tribunal. The letter noted that the last day for lodging a valid review application was 6 November 2015. The letter stated that as the application for review was not made until 26 February 2016, it appeared to be out of time. The letter also invited the applicant to provide comments on the validity of the review application by 3 March 2016.

2. On 3 March 2016, the applicant provided a response in which he indicated that the letter of cancellation was sent to his residential address while he was in prison. The applicant referred to the period during which he was in custody and expressed remorse in relation to his criminal conduct. 

3. The Tribunal relevantly held that under s.347(1)(b) of the Act and reg.4.10(1)(b) of the Regulations, the application for review had to be made to the Tribunal within seven working days after the date on which the applicant was notified of the decision in accordance with the relevant statutory requirements.

4. The Tribunal found, in accordance with reg.2.55 of the Regulations, that the applicant was taken to have received the delegate’s decision on 28 October 2015. The Tribunal found that the prescribed period within which the application for review could be made ended on 6 November 2015. In the circumstances, the Tribunal found that it did not have jurisdiction to review the matter.

Proceedings Before this Court

1. On 10 May 2016, the applicant filed an application for judicial review of the Tribunal’s decision. On 30 June 2016, a Registrar of the Court provided the applicant with an opportunity to file an amended application, affidavit evidence and submissions. By consent, an order was made extending time for the applicant to seek judicial review under s.477 of the Act on 16 August 2016. That order gave the applicant a further opportunity to file an amended application, affidavit evidence and submissions.

2. At the commencement of the hearing today, the Court explained to the applicant that the matter is listed for a final hearing to determine whether the Tribunal’s decision was affected by a relevant legal error. 

3. The Court explained to the applicant that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant within the statutory regime. The Court explained that in summary, this meant the Court was determining whether the Tribunal’s decision was lawful or, whether within the statutory regime, the Tribunal’s decision was fair. The Court explained that if it were satisfied that the Tribunal’s decision was affected by a relevant legal error, it would set aside the Tribunal’s decision and remit the matter back to the Tribunal for reconsideration. 

4. The Court explained to the applicant that if it were not satisfied that the Tribunal’s decision was affected by a relevant legal error, it would dismiss the applicant’s application. The applicant confirmed that he understood what had been said by the Court. The Court explained to the applicant 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.

5. From the bar table, the applicant maintained that he had not received any of the correspondence, including the Notice of Intention to Consider Cancellation. The applicant was given an opportunity to adduce oral evidence in relation to whether he received that notice. The applicant declined that invitation. On the evidence before the Court, the Notice of Intention to Consider Cancellation was sent to the applicant’s last-known address to the Minister in accordance with the statutory regime, at a time that the applicant was not in custody.

6. As stated above, the Notice of Intention to Consider Cancellation also invited the applicant to attend an interview at a date prior to the commencement of the applicant’s prison sentence.

7. From the bar table, prior to the applicant declining the invitation to give evidence, the applicant suggested that he had changed his address and was living in Merrylands with a friend at that time. There is no evidence to support that proposition. The applicant’s own statement, dated 3 March 2016, is consistent with the fact that he was still living at the residential address that was last known to the Minister at that time. Further, the bail conditions and statement of facts in relation to various offences with which the applicant was charged, are consistent with the applicant still residing at his last known address to the Minister. On the evidence before the Court, the applicant continued to use that address up to December 2015. 

8. The applicant maintained that the Tribunal’s decision was unfair in circumstances where he had not physically received the delegate’s decision. The applicant made reference to other people in detention physically receiving a copy of their visa cancellation decisions.  The applicant made reference to the fact that he had not obtained legal assistance, that there was no possibility of him getting help and that he did not have the funds to obtain assistance.

9. Mr Markus, the solicitor for the first respondent, took the Court to the statutory regime under which the applicant was deemed to have received the correspondence sent by the Department, including the Notice of Cancellation and the Notice of Intention to Consider Cancellation, pursuant to reg.2.55(7). The Court accepts on the evidence that the address to which the correspondence was sent was the applicant’s last-known address to the Minister.

10. The Court was also taken to ss.338 and 347(1)(b) of the Act and reg.4.10(1)(b) of the Regulations, which stipulate a seven-working-day limit, from the date an applicant was taken to be notified of the delegate’s decision to cancel a visa, within which the applicant could validly apply for review of the delegate’s decision by the Tribunal.

11. The Court was taken to the evidence contained in the Court Book which indicated that the delegate’s decision was sent to the applicant via registered post within three days to the applicant’s last known address, in accordance with the statutory regime.

12. The grounds of the applicant’s application, which came under the headings “Grounds of application for extension of time” and “Other interlocutory, interim or procedural orders sought by applicant/s” are as follows:

    “I did not received notice to attend the hearing at the AAT

    I have send my application for review on the 08-03-16 because I did not hear from the court. I resend the information again

    I am soliciting my application be review from the decision made by AAT on the 04^th March, 2016. I hereby enclose my fax receipt.”

    (Errors in original).

13. The grounds of the application did not identify any arguable jurisdictional error.  The grounds appeared to relate to the applicant’s application for an extension of time and referred to the assertion that the applicant did not receive the Tribunal’s decision.

14. I accept the submissions of the first respondent that the statutory regime was designed to provide certainty in terms of notification of decisions. In the present case, the applicant was deemed to have been notified of the delegate’s decision in accordance with the statutory regime. I accept the submissions of the first respondent that the applicant was taken to have received the delegate’s decision on 28 October 2015 and that he had seven working days, ending on 6 November 2015, within which he could validly apply for review of the delegate’s decision by the Tribunal.

15. I accept the first respondent’s submission that there was no jurisdictional error in the Tribunal’s finding that it had no jurisdiction.  This Court does not have power to make fresh findings in relation to the applicant’s claims.

16. This Court’s power is confined to considering whether or not there was jurisdictional error in the Tribunal’s reasons.  Nothing said by the applicant from the bar table identified any jurisdictional error. I accept the submissions of the first respondent that the application fails to make out any jurisdictional error. 

17. The application is dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 28 October 2016