BROWN v Minister for Immigration
[2018] FCCA 817
•12 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BROWN v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 817 |
| Catchwords: MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed. |
| Legislation: Migration Act 1958 (Cth) |
| Applicant: | ENESI BROWN |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 367 of 2017 |
| Judgment of: | Judge Vasta |
| Hearing date: | 12 March 2018 |
| Date of Last Submission: | 12 March 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 12 March 2018 |
REPRESENTATION
The Applicant appearing on his own behalf with the assistance of an interpreter
| Solicitors for the Respondent: | Minter Ellison |
ORDERS
The Application filed on 24 April 2017 be dismissed.
There be no order as to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 367 of 2017
| ENESI BROWN |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore)
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.
The background, as given by the Applicant in his material and in what he has said to me today, is as follows. The Applicant and his wife were married in 2008. He said that both his family and his wife’s family did not like the union and they told the two of them that they had to separate. They did not want to separate, but they went along with what the families had wanted.
They went to the airport. At the airport, the Applicant says that his wife said, words to the effect, that if he, the Applicant, left, she would commit suicide and would take their child with her. The Applicant said that he decided to stay and that they moved to their own place and made the application for the visas.
That application was made, it would seem, in 2009, and the delegate of the Minister refused to grant the Applicant a provisional partner visa. The Applicant sought review of that decision before the Migration Review Tribunal, as it was then known.
On 8 February 2010, the Applicant advised the Department that his new residential address, which was also his postal address, was 108 Ewing Road, Woodridge. He also gave an email address of [email protected]. It would seem that this may have been the email address of his wife. The Applicant did not tell the department of any change of residence after that time until 13 January 2017.
On 26 May 2010, the Migration Review Tribunal remitted the Applicant’s application back to the delegate with the direction that the Applicant meets some criteria for the provisional spousal visa.
On 31 March 2011, the Applicant’s migration agent, Logan Migration Service, submitted, to the department, a form 956, which was “Advice by Migration Agent, exempt person, of providing immigration assistance” form, which gave an address for correspondence of PO Box 775, Springwood, Queensland.
On 16 June 2011, the department granted the Applicant a subclass 309 spousal visa. This was not a permanent visa.
On 26 April 2016, the department wrote to the Applicant by email to the email address, and by post to the Woodridge address, requesting more information for the partner (Migrant) (class BC) partner (subclass 100) visa.
That letter was sent by post to the Woodridge address, and it was returned to the department marked “return to sender”. That same date, the department also wrote to the Applicant by post to the migration agent address enclosing the same letter requesting more information. That letter was also returned to the department marked “return to sender”.
On 14 December 2016, the department wrote to the Applicant enclosing a decision of the delegate saying that there was a refusal of the application for a partner visa. That letter was sent by post to the Woodridge address and to the migration address.
The department, in doing that, had complied with all of its obligations under the Migration Act 1958 (Cth) (“the Act”); that is, that it notified the Applicant by letter by prepaid post to both the last address given to the department, and also to the migration agent’s address.
Having done what the legislation required, the legislation then deems that within seven days of the posting of that decision, the Applicant has received the decision. That meant that if the Applicant was to disagree with the assessment or the determination of the delegate of the Minister, that the Applicant had 21 days within which to file the application with the Administrative Appeals Tribunal (“the AAT”).
The Applicant said, and I have no reason to doubt his veracity, that he did not know anything about this. He and his wife have said that they assumed because there was that initial grant of a visa that there was nothing more that they had to do. They had moved from the Woodridge address to an apartment at Runcorn.
Once the delegate had made that decision, this meant that the Applicant was no longer eligible to receive any form of Centrelink benefits. When his Centrelink benefits were cut off, the Applicant went to Centrelink to inquire as to why this had happened. It was on that date that he was told that the department had made the decision that he was refused a partner visa. The Applicant said that he went to the AAT straightaway.
This date of 13 January 2017 is significant, because the decision having been made on 14 December, it is deemed that the department wrote by 17 December and that therefore by 24 December, the Applicant was in receipt of the decision. 21 days from that date was 13 January 2017.
The Applicant claims what occurred then was that he went to the AAT and was told that he still had five days in which to apply to the Tribunal. The Applicant contacted the Tribunal, he said, and was told to lodge the application by 16 January 2017, which he did.
Even taking the Applicant at his word that that is what happened, the true facts of the matter were that, by 16 January, he was out of time.
There is no provision in the Act for the department or the AAT to extend the time in which an application can be made. It is, to use the vernacular, “sudden death”.
Because of this filing with the AAT out of time, the AAT had absolutely no power with which to look at the matter.
On 24 March 2017, the AAT made a decision that it did not have jurisdiction.
The Applicant filed this application with three grounds:
“1. I am not satisfy with the AAT Decision because I didn’t receive a letter from Immigration. My migration agent deals with Immigration, I did not receive any letter from my agent. The agent told us 2 years, that’s it! He informed us he will let us know if there is anything else.
2. Our local MP was the reason why we knew the situation with the Immigration. We went straight to our agent and when we got there, there was no one and we didn’t know where they moved(12/01/17). We went straight to the Immigration the next day 13/01/17) at 9 am. We told them why we were there, the girl rang upstairs and she came back and told us they stated that the reason they declined my visa because they thought we not together. The girl told us we have 5 days & it is up to me weather (sic)to go back to Samoa or not but if I am over, come back on 19th Jan 2017 and they will give me a case manager to help me. Why didn’t they tell us to go straight to the AAT on that day, it was the last day, 13/01/2017.
3. I am not satisfy with their decision of declining my visa without any proof that we weren’t together, their decision is their thoughts only but no truth. Thank you.”
None of those grounds disclose a jurisdictional error.
What they do show is a very unfortunate series of events where the Applicants were in a state of ignorance, but as the authorities show, ignorance is no excuse and ignorance cannot take the place of what it is that the Parliament has legislated.
This has not been an easy matter. It would take someone with a heart of stone not to be moved not just by the pleas of the Applicant, but especially the pleas of the wife and the child, who sit dutifully in the back of Court.
But the oath that Judges of this Court take is to uphold the law without fear or favour and without sympathy or prejudice. It gives me no pleasure at all to make the ruling that I must now make, but the only ruling I can make is this: there is no jurisdictional error on the part of the Tribunal and the application must be dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 5 April 2018
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