CAV18 v Minister for Home Affairs

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.