Brown v Minister for Home Affairs - [2018] FCA 1643

FEDERAL COURT OF AUSTRALIA
Brown v Minister for Home Affairs [2018] FCA 1643

Appeal from: Brown v Minister for Immigration and Border Protection [2018] FCCA 817

File number(s): QUD 185 of 2018

Judge(s): GREENWOOD J

Date of judgment: 31 October 2018

Catchwords: MIGRATION – consideration of the question of whether the Federal Circuit Court of Australia fell into error in concluding that no power resides in the Administrative Appeals Tribunal (“AAT”) to extend the time for the making of an application for review of a Part 5 – reviewable decision under s 347(1)(b) of the Migration Act 1958 (Cth) (“Migration Act”) – consideration of whether the AAT fell into jurisdictional error by concluding that the AAT had no power to extend the time for the making of an application under s 347(1)(b) of the Migration Act

Legislation: Migration Act 1958 (Cth), ss 338, 347, 348, 349, 500(6B), 501

Cases cited:
AFJ16 v Minister for Immigration and Border Protection [2017] FCA 523

Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378

Ismail v Minister for Immigration & Multicultural Affairs [1998] FCA 1654

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 1710

SZJQC v Minister for Immigration and Citizenship & Anor [2008] HCASL 66

Date of hearing: 22 August 2018

Date of last submissions: 24 August 2018

Registry: Queensland

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 68

Counsel for the Appellant: Appellant appeared in person

Solicitor for the Respondents: MinterEllison Lawyers

ORDERS

QUD 185 of 2018

BETWEEN:
ENESI BROWN

Appellant

AND:
MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

GREENWOOD J

DATE OF ORDER:

31 OCTOBER 2018

THE COURT ORDERS THAT:
1.The time for the filing of a notice of appeal from the whole of the judgment of the Federal Circuit Court of Australia is extended to the date of filing of the notice of appeal on 3 April 2018.
2.The first respondent file and serve written submissions on the question addressed at [38] to [68] of the reasons for judgment published today, within two weeks.
3.The costs of the proceeding are reserved for later determination having regard to further submissions to be received from the first respondent.
4.Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
GREENWOOD J:

These proceedings are concerned with an appeal from orders and a judgment of the Federal Circuit Court of Australia (the “Federal Circuit Court”) constituted by Judge Vasta delivered on 12 March 2018: Brown v Minister for Immigration and Border Protection [2018] FCCA…

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: [2018] FCA 1643
Decision Date: 31 October 2018

CaseChat Overview and Summary

In the case of Brown v Minister for Home Affairs, the appellant sought to challenge the decision of the Administrative Appeals Tribunal (AAT) which found it did not have jurisdiction to review a decision of the Minister for Immigration. The AAT had determined that the appellant’s application for review was lodged beyond the statutory 21-day period and thus the AAT could not accept the application out of time. The appellant appealed to the Federal Circuit Court of Australia which was tasked with considering whether the AAT made a jurisdictional error in concluding it lacked the power to extend the time for making an application for review under section 347(1)(b) of the Migration Act 1958.

The court had to determine whether the AAT correctly understood its jurisdiction to extend time limits for review applications and if the AAT's refusal to entertain the application due to its lateness was a jurisdictional error. The court examined the statutory provisions concerning the timeframe for making such applications and whether any discretion existed within the AAT to allow for extensions. Additionally, the court considered if the AAT had the requisite authority under the Migration Act to extend the time for making the application.

Judge Vasta of the Federal Circuit Court of Australia found that the AAT had correctly determined it lacked the authority to extend the time for making an application for review. The court held that the statutory provisions did not provide for an extension of time and thus the AAT's decision was not a jurisdictional error. The court emphasised that the statutory timeframe was mandatory and the AAT was bound by law in this respect. Consequently, the court dismissed the appeal and upheld the AAT’s decision.

The Federal Circuit Court of Australia made several orders to give effect to its decision. It extended the time for filing a notice of appeal to 3 April 2018. The Minister for Home Affairs was required to file and serve written submissions on a specific aspect of the case within two weeks. The costs of the proceeding were reserved for later determination after considering further submissions from the Minister. These orders and the reasons for judgment were published from chambers and entry of orders was to be dealt with under Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The time for the filing of a notice of appeal from the whole of the judgment of the Federal Circuit Court of Australia is extended to the date of filing of the notice of appeal on 3 April 2018.

2. The first respondent file and serve written submissions on the question addressed at [38] to [68] of the reasons for judgment published today, within two weeks.

3. The costs of the proceeding are reserved for later determination having regard to further submissions to be received from the first respondent.

4. Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 24 March 2017, the Tribunal decided the question of the validity of the appellant’s application for review before the AAT. Relevantly, the Tribunal said this in its decision:1.An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 14 December 2016, to refuse to grant a Partner (Migrant) (Class BC) visa under s 65 of the Migration Act 1958 (the Act).2.The review application was lodged with the Tribunal on 16 January 2017. For the following reasons, the Tribunal has found that it has no jurisdiction to review a decision as the application was not made in accordance with the relevant legislation. 3.Pursuant to s 347(1)(b) of the Act and r.4.10 of the Migration Regulations 1994 (the Regulations) an application for review of this decision had to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements. There is no provision for an extension of this time. …8.The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 14 December 2016 and dispatched by post as required. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. In particular, the Tribunal is satisfied that the decision notice was valid and that it was sent by prepaid post on 14 December 2016 from a place in Australia to the applicant at an address in Australia, being the last residential address provided by the applicant for the purpose of receiving documents. The Tribunal notes from the applicant’s letter of 24 February 2017 that the applicant changed address to his current address in March 2016 however that change of address was not advised to the Department and the last residential address provided by the applicant was used by the Department. 9.The Tribunal has carefully noted the contents of the applicant’s letter of 24 February 2017 and acknowledges the submissions as to why the applicant did not apply for review within the statutory timeframe. However, the Tribunal is bound to apply the law and has no discretion to accept the application for review out of time, whatever the reasons for applying out of time. 10.The Tribunal finds that in accordance with s 494C of the Act, the applicant is taken to have been notified of the decision on 23 December 2016. Therefore, the prescribed period within which the review application could be made ended on 13 January 2017. As the application for review was not received by the Tribunal until 16 January 2017, it follows that the application for review as not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter. DECISION11.The Tribunal does not have jurisdiction in this matter. Susan TrotterMember The appellant sought review of the AAT’s decision before the Federal Circuit Court of Australia. The application for review was heard on 12 March 2018 and Judge Vasta delivered ex tempore reasons that day at the conclusion of the hearing. At [1] of the reasons, Judge Vasta makes this observation:This is a rather sad state of affairs. The Applicant has appeared here today with his wife and child, and it has been quite an emotional hearing.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	Brown v Minister for Immigration and Border Protection [2018] FCCA 817
File number(s):	QUD 185 of 2018
Judge(s):	GREENWOOD J
Date of judgment:	31 October 2018
Catchwords:	MIGRATION – consideration of the question of whether the Federal Circuit Court of Australia fell into error in concluding that no power resides in the Administrative Appeals Tribunal (“AAT”) to extend the time for the making of an application for review of a Part 5 – reviewable decision under s 347(1)(b) of the Migration Act 1958 (Cth) (“Migration Act”) – consideration of whether the AAT fell into jurisdictional error by concluding that the AAT had no power to extend the time for the making of an application under s 347(1)(b) of the Migration Act
Legislation:	Migration Act 1958 (Cth), ss 338, 347, 348, 349, 500(6B), 501
Cases cited:	AFJ16 v Minister for Immigration and Border Protection [2017] FCA 523 Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378 Ismail v Minister for Immigration & Multicultural Affairs [1998] FCA 1654 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 1710 SZJQC v Minister for Immigration and Citizenship & Anor [2008] HCASL 66
Date of hearing:	22 August 2018
Date of last submissions:	24 August 2018
Registry:	Queensland
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	68
Counsel for the Appellant:	Appellant appeared in person
Solicitor for the Respondents:	MinterEllison Lawyers

QUD 185 of 2018
BETWEEN:	ENESI BROWN Appellant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent
JUDGE:	GREENWOOD J
DATE OF ORDER:	31 OCTOBER 2018