Cav18 v Minister for Immigration - [2019] FCCA 1921

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAV18 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 1921

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (subclass 866) visa – whether the Tribunal made an error by declaring it had no jurisdiction – no jurisdictional error made out – application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 494B
Migration Regulations 1994 (Cth), rr.4.31(2), 2.16(3)

Cases cited:

Haque v Minister for Immigration and Citizenship [2010] FCA 346
DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64

Applicant:

CAV18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1136 of 2018

Judgment of:

Judge Humphreys

Hearing date:

11 July 2019

Date of Last Submission:

11 July 2019

Delivered at:

Parramatta

Delivered on:

11 July 2019

REPRESENTATION

Applicant appeared in person.

Solicitor for the Respondents:

Ms Butler, Sparke Helmore

ORDERS

The name of the First Respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application is dismissed.
The Applicant pay the First Respondents costs fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 1136 of 2018

CAV18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from Transcript)

Introduction

The applicant is a Chinese national. The applicant arrived in Australia on 27 December 2016 on a Visitor (Class 600) visa. On 23 February 2017, the applicant applied for a Protection (subclass XA-866) Permanent Protection visa under s 65 of the Migration Act 1958 (Cth) (“the Act”). On 9 May 2017, a delegate of the Minister for Immigration (“the Minister”) refused the visa application.
On 22 December 2017, the applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of the delegate’s decision. On 19 February 2018, the Tribunal wrote to the applicant advising him that the application did not appear to have been lodged within the relevant time period and asking him to comment by 5 March 2018. No response to that invitation to comment was received.
On 27 March 2018, the Tribunal found it did not have jurisdiction to conduct the review as the application to the Tribunal was not lodged within the required 28 day time period from 9 May 2017, as set out in

r 4.31(2) of the Migration Regulations 1994 (Cth) (“the Regulations”). The 28 day time period actually expired on 5 June 2017. Accordingly, the Tribunal concluded it had no jurisdiction to hear the matter.
The applicant now seeks judicial review of the Tribunal’s decision.

Grounds of Appeal

The grounds of appeal lodged in the application to this Court are as follows:
1)   I was not notified of the decision for my application for a Protection visa.
2)   I did not receive the letter by post.
3)   AAT made a mistake to say it had no jurisdiction in this matter.

Applicant’s Submissions

The applicant appeared unrepresented…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 1921
Decision Date: 11 July 2019

CaseChat Overview and Summary

The applicant, Cav18, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) concerning an application for a Protection (subclass 866) visa. The core of the dispute was whether the AAT had erred in declaring that it lacked jurisdiction to hear Cav18's application. The matter came before Judge Humphreys in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the AAT had made a jurisdictional error in finding that it did not have the power to consider Cav18's protection visa application. This required the Court to examine the scope of the AAT's jurisdiction in relation to such applications and to determine if the AAT's conclusion on this point was legally sound.

Judge Humphreys reasoned that the AAT had correctly assessed its jurisdictional limitations. The Court found that the AAT had not made a jurisdictional error in its determination. Consequently, the application for judicial review was dismissed.

Orders