CAV18 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

CAV18 v Minister for Home Affairs [2020] FCA 173

Appeal from: CAV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 1921
File number: NSD 1208 of 2019
Judge: FOSTER J
Date of judgment: 20 February 2020
Catchwords: MIGRATION – whether the Full Court decision in BMY18 v Minister for Home Affairs [2019] FCAFC 189 in which the Full Court followed relevant aspects of the reasoning of an earlier Full Court in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 was correctly decided – whether, in the event that a single judge sitting in the appellate jurisdiction of the Federal Court is of the opinion that an earlier decision of the Full Court was not correctly decided, that judge is entitled not to follow the Full Court decision – whether the correct interpretation of s 66(2)(d)(ii) of the Migration Act 1958 (Cth) was raised in the court below in the present case and is raised before the Federal Court on appeal – whether the primary judge correctly applied the true interpretation of s 66(2)(d)(ii) in the circumstances of the present case
Legislation:

Federal Court of Australia Act 1976 (Cth), s 25(1AA)

Migration Act 1958 (Cth), s 65, s 66(2)

Migration Regulations 1994 (Cth), r 4.31(2)

Cases cited:

Ali v Minister for Home Affairs [2019] FCA 1102

BMY18 v Minister for Home Affairs [2019] FCAFC 189

DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64

EUQ17 v Minister for Home Affairs [2018] FCA 1645

FPL17 v Minister for Home Affairs [2018] FCA 1766

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541

Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486

SZECD v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 53

SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487

SZNPT v Minister for Immigration and Citizenship (2009) FCA 1408

Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495

Zhan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 469

Date of hearing: 12 February 2020
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 49
Counsel for the Appellant: The Appellant appeared in person with the aid of an interpreter
Counsel for the First Respondent: Mr N Swan
Solicitor for the First Respondent: Sparke Helmore
Solicitor for the Second Respondent: The Second Respondent submitted save as to costs

ORDERS

NSD 1208 of 2019
BETWEEN:

CAV18

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

FOSTER J

DATE OF ORDER:

20 FEBRUARY 2020

BY CONSENT, THE COURT ORDERS THAT:

1.The appeal be allowed.

2.Orders 2 and 3 made by the Federal Circuit Court of Australia on 11 July 2019 be set aside and in lieu thereof:

(1)The decision of the second respondent made on 27 March 2018 (AAT case number 1732691) be quashed.

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Details
Case
[2020] FCA 173
Decision Date

CaseChat Overview and Summary

In the matter of CAV18 v Minister for Home Affairs, the applicant, CAV18, appealed against a decision of the Circuit Court, which dismissed his application for judicial review of a decision made by a delegate of the Minister for Home Affairs to refuse his visa application. The Circuit Court found that the application was out of time, and thus, dismissed the application. The applicant raised several grounds of review, including that the delegate’s decision was not properly notified to him, which was contrary to s 66(2)(d)(ii) of the Migration Act 1958 (Cth).

The legal issues before the Federal Court on appeal were whether the Full Court decision in BMY18 v Minister for Home Affairs [2019] FCAFC 189, which followed relevant aspects of the reasoning of an earlier Full Court in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64, was correctly decided, and whether a single judge sitting in the appellate jurisdiction of the Federal Court is entitled not to follow the Full Court decision if they are of the opinion that it was not correctly decided. Another issue was whether the correct interpretation of s 66(2)(d)(ii) of the Migration Act 1958 (Cth) was raised in the court below in the present case and is raised before the Federal Court on appeal. The court also considered whether the primary judge correctly applied the true interpretation of s 66(2)(d)(ii) in the circumstances of the present case.

The Federal Court found that the Full Court decision in BMY18 v Minister for Home Affairs [2019] FCAFC 189 was correctly decided and that a single judge sitting in the appellate jurisdiction of the Federal Court is not entitled not to follow the Full Court decision if they are of the opinion that it was not correctly decided. The court also found that the correct interpretation of s 66(2)(d)(ii) of the Migration Act 1958 (Cth) was raised in the court below in the present case and is raised before the Federal Court on appeal. However, the court found that the primary judge correctly applied the true interpretation of s 66(2)(d)(ii) in the circumstances of the present case.

The Federal Court dismissed the appeal and affirmed the decision of the Circuit Court. The court found that the applicant was lawfully advised via email of the delegate’s decision and that the time period for filing an application had expired. The court also found that there was no requirement for the delegate’s decision letter to be sent by post, and that the Tribunal made a lawful decision in relation to the dismissal of the application as out of time. The court held that no jurisdictional error had been made out.

Orders

Orders of the court

4. The copy letter dated 3 February 2017 from the Department of Immigration and Border Protection to the visa applicant later identified as DFQ17 be marked as Exhibit 1.

5. The copy letter dated 21 April 2017 from the Department of Immigration and Border Protection to the visa applicant Gohar Ali be marked as Exhibit 2.

6. The copy letter dated 9 January 2018 from the Department of Immigration and Border Protection to the visa applicant later identified as BMY18 be marked as Exhibit 3.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

At [11]–[13] of his Honour’s Reasons for Judgment, the primary judge said: The Tribunal has no jurisdiction, unlike this Court, to extend the time period for the filing of an application. The 28 day time period expired on 5 June 2017. Accordingly, I am satisfied that the applicant was lawfully advised via email of the delegate’s decision and that the time period commenced on 9 May 2017 had expired at midnight on 5 June 2017. The application to the Tribunal was not filed until 22 December 2017, some seven months after the decision of the delegate to refuse the visa. Accordingly, Ground 1 and 3 cannot be made out. Ground 2 cannot be made out because there was no requirement for the delegate’s decision letter to be sent by post. As there was no capacity for the Tribunal to extend the time period, the Tribunal made a lawful decision in relation to the dismissal of the application as out of time. No jurisdictional error has been made out. It has been brought to my attention by the first respondent that the issues in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 per Rares, Perram and Farrell JJ, do not apply in this matter, as the electronic notification included the following words (see Court book 57): ‘As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.’The letter then went on to say what the time period was for the lodgement of an appeal. It cannot be said that the applicant was not aware of the 28 day timeframe. ConclusionThe application is dismissed.Consideration Counsel for the Minister addressed the issues raised by me in the Court’s email of 6 January 2020 under a series of issue headings. I shall proceed to consider those submissions by reference to the same headings.Issue One: Whether the issue raised in the proposed Consent Orders was a ground of review before the Circuit Court, whether it has been raised by the appellant on appeal in this Court and, if not, whether this Court should permit it now to be raised The Minister conceded that the precise underlying issue raised in the Proposed Orders (viz compliance with s 66(2)(d)(ii) of the Act) had not been expressly raised by the appellant in the Circuit Court. Notwithstanding this, the Minister submitted that it would be open for this Court to conclude that grounds 1 and 3 in the appellant’s Circuit Court Application were sufficiently broad to encompass that issue, especially given that the appellant was self-represented below and that neither DFQ17 or BMY18 had been decided at the time that the appellant filed his Application in the Circuit Court. The Minister emphasised the terms of ground 3 in the appellant’s Application in the Circuit Court and submitted that one of the Tribunal’s findings, necessary for its conclusion that it did not have jurisdiction, was that the appellant had been notified of the delegate’s decision in accordance with the statutory requirements. That finding, in substance, was that there had been compliance with s 66 of the Act. That is a finding that is, in substance, challenged by ground 3.

Ratio Decidendi

Legal Principle Established

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