BQP21 v Minister for Immigration and Multicultural Affairs (No 2)

[2025] FedCFamC2G 287

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BQP21 v Minister for Immigration and Multicultural Affairs (No 2) [2025] FedCFamC2G 287  

File number(s):

SYG 1102 of 2021

Judgment of:

JUDGE KAUR-BAINS

Date of judgment:

27 February 2025

Catchwords:

MIGRATION – review of Registrar’s decision – applicant sought orders seeking to reinstate his application for an extension of time to apply for judicial review – where Tribunal decided it had no jurisdiction to review the delegate’s decision because the application for review to the Tribunal was filed after the 28 day application period – whether grounds for judicial review of the Tribunal’s decision are arguable – no arguable grounds for judicial review disclosed and application dismissed

Legislation:

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 256

Migration Act 1958 (Cth) ss 65, 412, 494B, 494C

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.06, 21.04

Cases cited:

Allison v Murphy [2021] FCAFC 232

BAH21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedFamC2G 753

Bechara v Bates [2021] FCAFC 34

Beni v Minister for Immigration and Border Protection

(2018) 267 FCR 15

BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 307

CBZ23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1199

DAP17 v Minister for Home Affairs & Anor [2019] FCCA 801

Hamod v New South Wales [2011] NSWCA 375

SZRUR v Minister Immigration and Border Protection (2013) 216 FCR 445

Division:

Division 2 General Federal Law

Number of paragraphs:

13

Date of hearing:

27 February 2025

Place:

Sydney

Counsel for the Applicant:

The Applicant appeared in person

Solicitor for the First Respondent:

Mr G Pasas of Clayton Utz appeared for the First Respondent

Second Respondent:

Submitting Appearance save as to costs

ORDERS

SYG 1102 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BQP21

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE KAUR-BAINS
DATE OF ORDER:	27 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The Application for review of Judicial Registrar Cummings’ decision made on 17 January 2025 is dismissed.

2.The Applicant pay the First Respondent’s costs in the sum of $1,900.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

Judge Kaur Bains

1. On 17 January 2025, a Judicial Registrar of this Court, in the exercise of delegated power, dismissed the applicant’s application for reinstatement of the application for an extension of time to apply for judicial review. This was because the Judicial Registrar was ‘not satisfied that the applicant has arguable prospects of successfully prosecuting the extension of time application if that was reinstated’ (Registrar’s Decision).

2. By application filed on 11 February 2025, the applicant seeks a review of the Registrar’s Decision. This Court reviews the Registrar’s Decision pursuant to s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). Pursuant to r 21.04(1) of the Federal Circuit and Family Court of Australia (Division 2) General Federal Law Rules 2021 (Cth) (Rules), this Court’s review is by way of a hearing de novo. That is, for such hearings to be conducted afresh and not concerned with correcting error in the decision-making process of the Registrar. The validity of the exercise of delegated judicial power by a Registrar of this Court is dependent upon this principle and the right for parties to seek review of the exercise of delegated judicial authority: Bechara v Bates [2021] FCAFC 34 (Allsop CJ, Markovic and Colvin JJ) at [2]; BIM21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 307 (Burley J) at [11]; Allison v Murphy [2021] FCAFC 232 at [11].

   BACKGROUND FACTS

3. I adopt the chronology of this matter from the Minister’s written submissions filed 24 February 2025 at [1], set out as follows:

   (a)On 30 December 2020, a delegate of the Minister refused to grant the applicant a Protection (Class XA) (subclass 866) visa (Protection Visa) under s 65 of the Migration Act 1958 (Cth) (Act).

   (b)On 25 March 2021, the applicant applied to the Tribunal for review of the delegate’s decision.

   (c)On 10 May 2021, the Tribunal issued its decision concluding that it did not have jurisdiction to review the delegate's decision as the application was filed outside the mandatory 28 day period.

   (d)On 17 June 2021, the applicant applied to the (then) Federal Circuit Court for judicial review (Judicial Review Application). The applicant required an extension of time as he had filed that application outside the 35 day time limit.

   (e)On 5 December 2024, the Court listed the Judicial Review Application for a call over before Judicial Registrar Cummings on 18 December 2024.

   (f)On 18 December 2024, the applicant did not appear at the call over and the proceeding was dismissed for non-appearance pursuant to r 13.06(1)(c) of the Rules (Dismissal Decision).

   (g)On 10 January 2025, the applicant filed an Application seeking reinstatement of the proceedings (Reinstatement Application).

   (h)On 17 January 2025, Registrar Cummings dismissed the Reinstatement Application.

   PROCEEDINGS BEFORE THE COURT

4. The applicant appeared before the Court at the hearing unrepresented, assisted by a Gujarati interpreter. Mindful of the Court’s duty to unrepresented litigants (Hamod v New South Wales [2011] NSWCA 375 at [309] to [316]; SZRUR v Minister Immigration and Border Protection (2013) 216 FCR 445 at [37]), I explained to the applicant the role of the Court in undertaking the review of the Registrar’s Decision. I ensured the applicant was in possession of all relevant documents including the Court Book and the Minister’s written submissions filed 24 February 2025. The applicant appeared confused, so I ensured I had the correct applicant before me. The applicant had his passport and the Minister’s representative checked that the applicant’s details on the passport matched the details in his application for a protection visa contained in Court Book (CB) 1 to CB 17. I also went through the Court Book with the applicant to ensure that the applicant understood the background to this matter, which he confirmed he did.

   CONSIDERATION

5. The Minister’s representative sensibly at the hearing agreed not to take issue with any procedural aspects involved in this matter and said that the only issue for the Court to consider was whether there are arguable grounds for seeking judicial review of the Tribunal’s decision.

6. The essential issue in this matter was whether the applicant was notified of the delegate’s decision and when he is deemed to have been so notified. The applicant had 28 days to make an application to the Tribunal pursuant to s 412(1)(b) of the Migration Act 1958 (Cth) (Act) (as was then in force).

7. The applicant in his application for a protection visa, when asked if he agreed to the department communicating with him electronically, provided the email address ‘[email protected]’ (CB 5). By letter dated 30 December 2020, the department sent to the applicant, at the email address ‘[email protected]’, a copy of the delegate’s decision (CB 59). The effect of s 494B(5) and s 494C(5) of the Act is that if the department gives a copy of the delegate’s decision to the applicant by a method in s 494B(5), in this case by way of email to the last email address provided to the department for the purposes of receiving documents, then the applicant is taken to have received the delegate’s decision at the end of the day on which the document is transmitted, that date being 30 December 2020. Therefore, pursuant to s 412(1)(b) of the Act, the applicant was required to file an application for review with the Tribunal no later than 28 days after the notification of the delegate’s decision, being in this case, by no later than 26 January 2021.

8. The applicant filed the application for review to the Tribunal on 25 March 2021 (CB 71), which was outside the time limit required by s 412(1)(b) of the Act. The Tribunal has no power to extend the time within which to apply (Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15 at 39; BAH21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedFamC2G 753 at [91] per Judge Kendall; CBZ23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1199 at [97] per Judge Kendall; DAP17 v Minister for Home Affairs & Anor [2019] FCCA 801 at [49]).

9. I find that the Tribunal correctly in its decision dated 10 May 2021, determined that it did not have jurisdiction to review the delegate’s decision because of the matters set out in [7] and [8] of this judgment.

10. In relation to grounds 1 and 3, the applicant says the Tribunal misconstrued the risk and fear of significant harm the applicant will face should he be removed to India and the Tribunal failed to investigate the applicant’s claims for protection, specifically the grounds of persecution in India. I find that the Tribunal correctly determined that it did not have jurisdiction to consider that issue and therefore did not have to consider the said matters.

11. In relation to ground 2, the applicant says that the Tribunal had no jurisdiction to make the decision because its ‘reasonable satisfaction’ was not arrived at in accordance with the Act. I find the Tribunal did not have to reach the said state of satisfaction raised in ground 2 because the Tribunal correctly determined that it did not have jurisdiction in the matter.

    CONCLUSION

12. I find that the grounds for judicial review in the Judicial Review Application are not arguable. Therefore, the application dated 11 February 2025 seeking to set aside the orders of the Registrar on 17 January 2025 must be dismissed.

13. The Minister sought costs in the sum of $1,900. The applicant did not have anything to say on the question of costs. I find that the claim for costs is reasonable, and the applicant pay the first respondent’s costs in the sum of $1,900.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains.

Associate:

Dated:       27 February 2025