BWM23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 948
•20 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BWM23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 948
File number(s): SYG 1150 of 2023 Judgment of: JUDGE D HUMPHREYS Date of judgment: 20 October 2023 Catchwords: MIGRATION – review of Registrar’s decision – summary dismissal – whether application has reasonable prospects of success. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.13, 21.04
Migration Act 1958 (Cth) s 66
Migration Regulations 1994 (Cth) reg 2.16, 4.21, 4.31
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15
DZAFH v Minister for Immigration [2017] FCCA 387
Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434
SZJQC v Minister for Immigration and Citizenship [2008] HCASL 66
Division: Division 2 Family Law Number of paragraphs: 29 Date of last submission/s: 20 October 2023 Date of hearing: 20 October 2023 Place: Parramatta Solicitor for the Applicants: The applicant appearing in person Solicitor for the Respondents: Mr McLaurin ORDERS
SYG 1150 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BWM23
First Applicant
BWN23
Second Applicant
BWO23
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
20 OCTOBER 2023
THE COURT ORDERS THAT:
1.Grant leave for the Applicant to file an Application for a Review of a Registrar’s Decision, outside of the filing time.
2.The application for Review of a Registrar’s Decision, is dismissed, and the orders of 28 September 2023 remain in effect.
3.In addition to the costs ordered by the Registrar, the First Applicant to pay the First Respondent’s costs fixed in the amount of $429.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(as revised from transcript)JUDGE D HUMPHREYS
INTRODUCTION
This is an application seeking review of a Registrar’s decision of this Court. On 28 September 2023, a Registrar of this Court summarily dismissed the applicant’s application for judicial review pursuant to r 13.13(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the Rules”). The application for a review is out of time, however the Court has extended the period for filing to the date of filing,
The substantive matter concerns an application for a Protection (Class XA) (Subclass 866) visa (“Protection visa”) filed on 14 May 2022. On 7 October 2022, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant a Protection visa.
On 5 June 2023, the applicant filed an application for merits review of the delegate’s decision to the Administrative Appeals Tribunal (“the Tribunal”). On 28 June 2023, the Tribunal found that it had no jurisdiction to hear the matter as the application was lodged out of time.
On 20 July 2023, the applicant then sought judicial review of the Tribunal’s decision in this Court. For the reasons set out below, the application for judicial review must be dismissed.
THE ADMINISTRATIVE APPEALS TRIBUNAL’S DECISION
At paragraph 3 of its decision record, the Tribunal states that as the applicant was not in immigration detention at the time in which he was notified of the delegate’s decision he had 28 days to commence an application for merits review: reg 4.21(2) of the Migration Regulations 1994 (Cth) (“the Regulations”).
At paragraph 4, the Tribunal acknowledges that the material before it indicated that the applicant was notified of the delegate’s decision by a letter dated 11 April 2023, sent by email. It was satisfied that the applicant was notified of the delegate’s decision in accordance with the statutory requirements.
On 13 June 2023, the Tribunal notified the applicant via email that his review application was not valid as it was not lodged within the relevant time limit: reg 4.31(2) of the Regulations. It referred to DZAFH v Minister for Immigration [2017] FCCA 387 whereby the Court held that the period in reg 4.31 of the Regulations commences includes the day in which the applicant was taken to have been notified of the decision.
Accordingly, the last date in which the applicant could have filed his application for merits review to the Tribunal was 8 May 2023. As the application was not filed until 5 June 2023, it was out of time. The applicant was given until 27 June 2023 to provide a written response to the Tribunal’s correspondence.
In an email sent on 16 June 2023, the applicant told the Tribunal that he was sick for the previous two months and was in pain such that he could not have checked his email.
At paragraph 9, the Tribunal found that as the application for review before it was not lodged within the relevant time limit as set out in the legislation, it had no jurisdiction in the matter.
APPLICATION FOR JUDICIAL REVIEW
The applicant’s grounds of judicial review are contained within his Originating Application filed with the Court on 20 July 2023. They are as follows as they appear in the application:
1. My application was rejected on 29.06.2023. I request the honourable court to consider my application, and let me stay here.
2. Please have compassion with me as the tribunal denied my application because I was unable to check my email in time.
3. I was not well for the past several months and I was suffering from haemorrhoids which I told the tribunal via email.
4. I’m in danger of going back to my country.
Despite Court orders requiring the filing of an amended application, submissions, and any evidence to be relied upon, the applicant has not filed any further material to support his application.
First Respondent’s Submissions
The first respondent submitted that the applicant’s ground of judicial review are not proper grounds in that they do not identify or allege any error on the part of the Tribunal.
It was submitted that the Part 7 of the Migration Act 1958 (Cth) (“the Act”) states that an application for review made to the Tribunal must be made within the prescribed period, being 28 days from when the applicant was notified of the decision.
The notification letter sent to the applicant was compliant with the statutory requirements set out in s 66(2) of the Act as it:
a) Specified the criterion of the visa for which the grant of the visa was refused;
b) Gave written reasons why the criterion was not satisfied; and
c) Stated that the decision could be reviews, the time in which the application for review may be made, who could apply for the review, and where the application for review could be made.
The notification of the decision was provided in a prescribed way according to reg 2.16(3) of the Regulations as it was transmitted by email. A screen capture of the Minister’s Enterprise Correspondence System indicates that the notification was transmitted to the applicant’s last email address provided in connection with his application on 11 April 2023 at 3:27pm.
The Tribunal made no error in calculating that the applicant had until 8 May 2023 to file his application for merits review to the Tribunal and was correct to find that it had no jurisdiction to review the decision.
There is no evidence to indicate that the applicant had appointed an authorised recipient such that the decision is not affected by Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434.
Further, the Tribunal has no power to extend the time-period for the lodging of a valid application for review, regardless of how small the delay is or compelling the reason for delay are: Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15; SZJQC v Minister for Immigration and Citizenship [2008] HCASL 66.
For the reasons above, the first respondent submitted that the applicant had no reasonable prospects of success, and the application should have been summarily dismissed.
CONSIDERATION
The Court has the power to dismiss a proceeding if it is satisfied that the party prosecuting the proceeding has no reasonable prospect of successfully prosecuting the proceeding: r 13.13(a) of the Rules.
As the applicant has lodged a review of the Registrars decision to summarily dismiss his application, the Court must proceed to deal with the matter by way of a hearing de novo:
r 21.04(1) of the Rules.
The Court agrees with the first respondent’s submission that the applicant’s ground of judicial review do not contain any proper grounds of review. Rather, they reflect no more than a vehement disagreement with the Tribunal’s decision and invite the Court to undertake impermissible merits review: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]-[54].
The applicant states in his Affidavit of 12 October 2023 that “the registrar … has make the same mistake that Minister delegates made. I do request that Hon.Court give me justice”. These statements are a repeat of what is contained in his Affidavit of 17 July 2023 and contain no particulars.
The Court acknowledges that the applicant contends in his grounds of judicial review that he was suffering from a condition which he says prevented him from checking his email. In fact, the Tribunal also acknowledges this at paragraph 7 of its decision.
The problem faced by the applicant is that the law concerning time limits for review applications are strict. Section 412 of the Act clearly states that an application for review of the delegate’s decision must be filed within the prescribed period, being no later than 28 days after the notification of the decision. The Tribunal has no power to extend these time periods, even where there are compelling reasons such as illness: Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15; SZJQC v Minister for Immigration and Citizenship [2008] HCASL 66 at [3].
The applicant does not contend that he did not receive the notification of the delegate’s decision. Even if that were the case, the Affidavit of Ms Strugnell dated 22 September 2023 includes a screenshot of the Minister’s Enterprise Correspondence System which demonstrates that the notification was sent on 11 April 2023 to the email address provided by the applicant. The Court is satisfied that the applicant was properly notified of the delegate’s decision on this date.
By not filing his application for review to the Tribunal before the prescribed period lapsed, being 8 May 2023, the Tribunal was in a situation whereby it simply could not deal with the matter.
The Court is unable to find any jurisdictional error in the Tribunal’s decision. The Application for Review of the Registrar’s Decision is dismissed, and the orders of 28 September 2023 remain in effect.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Deputy Associate:
Dated: 20 October 2023
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