BTQ18 v Minister for Home Affairs
[2019] FCCA 153
•29 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BTQ18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 153 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.412, 494C |
| Cases cited: Beni v Minister for Immigration [2018] FCAFC 228 |
| Applicant: | BTQ18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 970 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 29 January 2019 |
| Delivered at: | Sydney |
| Delivered on: | 29 January 2019 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms M Butler of Sparke Helmore |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 970 of 2018
| BTQ18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), made on 12 March 2018. The Tribunal found that it did not have jurisdiction in the matter because the review application was not made in time. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 22 January 2019.
The applicant, a citizen of Fiji, arrived in Australia as the holder of a tourist (FA-600) visa on 18 December 2016.[1] On 5 April 2017, he lodged an application for a subclass XA-866 permanent protection visa.[2] At question 37 of the application form, the applicant provided a current residential address (address). The applicant left questions 38 (postal address) and 40 (email address) blank.[3] On 15 June 2017, a delegate of the Minister (delegate) refused to grant the visa.[4] On the same day, the Minister’s Department sent the applicant a letter via registered post to the address notifying him of the delegate’s decision.[5]
[1] Court Book (CB) 79
[2] CB 1
[3] CB 23
[4] CB 79
[5] CB 74-75; see also enterprise correspondence in relation to the applicant, which is annexure CEH-1 to the affidavit of Cara Elyse Hammerton dated 21 January 2019
On 7 February 2018, the applicant applied to the Tribunal for review of the delegate’s decision.[6] The application form provided the contact details of the applicant’s migration agent.[7] A statement dated 7 February 2018 was uploaded with the Tribunal application, providing an explanation for the delay in lodging the application, which can be summarised as follows:
a)after the applicant lodged his visa application, he moved to a new address in Griffith. The applicant kept his old address as his mailing address as his relatives continued to live there. He went there on a regular basis to check the mail, and never received any mail from the Minister’s Department;
b)on 18 January 2018, the applicant went to the Minister’s Department to request work rights. On 24 January 2018, a Department officer called the applicant to tell him that his visa application had been refused on 15 June 2017, and a letter sent to the address in the application;
c)the applicant told the officer he did not receive the mail from the Minister’s Department;
d)the officer forwarded the applicant the refusal notification, which he received on 24 January 2018.
[6] CB 92
[7] CB 93
On 15 February 2018, the Tribunal wrote to the applicant’s migration agent, inviting the applicant to comment on the validity of his review application. The letter noted that, as the delegate’s decision was posted to the applicant on 15 June 2017, the applicant was taken to have been notified of the delegate’s decision on 26 June 2017, and accordingly, his application for review appeared to be out of time. The letter also noted that the last day for lodging the application was 24 July 2017.[8] There was no response to this invitation.
[8] CB 97
On 12 March 2018, the Tribunal found that it did not have jurisdiction in the matter.[9]
[9] CB 101
Tribunal decision
The material before the Tribunal indicated that the applicant was notified of the decision by letter dated 15 June 2017 and despatched by post. Accordingly, the Tribunal was satisfied that the applicant was notified of the decision in accordance with the statutory requirements, and was taken to have been notified on 26 June 2017 per s.494C of the Migration Act 1958 (Cth) (Migration Act).[10]
[10] CB 102 at [2]
The Tribunal identified that, as the applicant was not in immigration detention on the day he was notified of the decision, an application for review had to be made within 28 days, commencing on that day per regulation 4.31(2) of the Migration Regulations 1994 (Cth) (Regulations). Therefore, the prescribed period to apply for review ended on 23 July 2017.[11]
[11] CB 102 at [3]
The Tribunal noted that it received no response to the letter sent to the applicant on 15 February 2018, advising him of its preliminary view that his application was not valid.[12]
[12] CB 102 at [4]
Accordingly, the Tribunal found that as the application for review was not received by the Tribunal until 7 February 2018, it was not made in accordance with the relevant legislation, and it had no jurisdiction in the matter.[13]
[13] CB 102 at [5]
The present proceedings
These proceedings began with a show cause application filed on 9 April 2018. There are three grounds in that application:
1. The second Respondent fell into error when considering its obligations, by failing to consider from the information in the files before the Tribunal that the applicant, received notice of the decision, ‘only when’ the department advised him that he cannot have work rights as his application has been refused. The applicant, went to the department to seek permission to work not knowing that the application has been refused and was given a form to be filled to seek work rights, without any mention of any decision being made.
2. The refusal decision sent to him 7 days after the form was handed in, is for the first time told that the application was refused and a letter was sent. The applicant went to the department and it is then, they gave the applicant a copy of the letter, advising that he could seek review. The decision therefore was notified only on that day.
3. The decision of the second respondent is affected by an error of law by failing to take these relevant considerations to make a decision which is the date on which the applicant received notice and that review was made within 28 days from that date.
The applicant is supported by a short affidavit filed with it, which I received. I also have before me as evidence the court book, filed on 28 May 2018. I also received the affidavit of Cara Elise Hammerton, made on 29 January 2019. Ms Hammerton deposes as to the despatch of a notification letter by the Minister’s Department to the applicant’s nominated residential address on 15 June 2017.
The issue in this case is whether the Tribunal was correct to find that it lacked jurisdiction. It is now established that the Tribunal has no discretion to extend time.[14] The evidence establishes that the notification from the Minister’s Department was sent to the applicant at his nominated address. Indeed, that was the only address the Minister’s Department had available to it. The applicant argues persuasively that he did not receive that notification. He is nevertheless taken to have received it. In those circumstances, he did not apply to the Tribunal within the prescribed period, and the Tribunal had no option but to find that it lacked jurisdiction. In view of the Tribunal’s lack of jurisdiction, the grounds advanced by the applicant go nowhere.
[14] Beni v Minister for Immigration [2018] FCAFC 228
I otherwise agree with the Minister’s outline of submissions.
By an application to show cause filed on 9 April 2018, the applicant advances three grounds of review. Grounds 1 and 2 state the applicant’s explanation for his late application to the Tribunal, which is in substantively the same terms as the explanation set out in the statement dated 7 February 2018. Ground 3 then asserts that the decision of the Tribunal is “affected by an error of law” due to a failure to take into account the considerations in Grounds 1 and 2, which the applicant contends were “relevant considerations”.
These contentions fail to establish any arguable case of jurisdictional error. The delegate’s decision, dated 15 June 2017, was sent to the applicant via registered post on that day, to the address specified by him in his visa application. Under s.494C(4)(a) of the Migration Act, the applicant was taken to have received the letter seven working days after the date of that document, which fell on 26 June 2017. It was a statutory requirement, pursuant to s.412(1)(b) of the Migration Act and regulation 4.31 of the Regulations, that any application for review be lodged within the identified period of 28 days. The applicant did not do so.
The Tribunal has no discretion to extend the prescribed 28 day time period.[15] Even in circumstances where “harsh and significant injustice arises”,[16] the authorities are clear that the statutory provisions allow no interference.[17]
[15] Minister for Immigration v ASE15 [2016] FCAFC 37 at [15]; SZOBI v Minister for Immigration (No.2) [2010] FCAFC 151 at [4], [22]; the Full Federal Court in Beni recently overturned the decision of Brown v Minister for Home Affairs (No.2) [2018] FCA 1787 in which Greenwood J held that there was nothing in the Migration Act to exclude or modify the Tribunal’s power to extend time in relation to Migration and Refugee Division matters
[16] For example, where an application is not lodged in time due to negligence on the part of a migration agent (SZRHA v Minister for Immigration [2013] FCA 531 – special leave refused) or an immigration detention officer (BET16 v Minister for Immigration [2016] FCCA 3165)
[17] BET16, Judge Smith at [20]-[22], citing Fernando v Minister for Immigration [2000] FCA 324 at [31]
As the applicant received the delegate’s decision in line with the statutory requirements, the explanation given by the applicant for the delay (that he “checked the mail” but “did not receive any mail from the Department”) was incapable of displacing the 28 day time limit in which the applicant was required to seek review. As such, it was not relevant to the Tribunal’s determination of whether it had jurisdiction, and the Tribunal was not obliged to consider it.
For completeness and as a model litigant the Minister draws to the Court’s attention to a matter not raised by the applicant. The letter dated 15 February 2018 (inviting the applicant to comment on the validity of his application) contains a typographical error, in that the Tribunal identified the final day for lodgement as 24 July 2017, rather than 23 July 2017.[18] This was a clear typographical error which did not affect the exercise of the Tribunal’s jurisdiction.
[18] 23 July 2017 was the correct date as the 28 day period commenced to run on the day the decision was notified: DZAFH v Minister for Immigration & Anor [2017] FCCA 387 at [45]
I conclude that the applicant is unable to establish an arguable case of jurisdictional error by the Tribunal.
I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale, as it applied when the application was filed. The applicant enquired about time to pay, but did not oppose the making of a costs order.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 1 February 2019
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