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

1. The name of the First Respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. The application is dismissed.

3. 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

1. 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.

2. 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.

3. 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.

4. The applicant now seeks judicial review of the Tribunal’s decision.

Grounds of Appeal

1. 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

1. The applicant appeared unrepresented with the aid of an interpreter. No written submissions were filed. When the applicant was asked what he wanted to tell the Court, he told the Court that he did not understand the law and that he just wanted to have a second chance at a hearing.

2. Ms Butler, who appeared on behalf of the Minister, provided a copy of her written submissions to the applicant prior to the hearing, and these were interpreted to him by the Court appointed interpreter.

3. During the course of the hearing, a further document was provided by the Minister, which attaches a printout which purports to indicate that an email advising the applicant of the decision of the delegate was sent to him at 4.46pm on 9 May 2017. The applicant made no comment in relation to that document, other than to again say he did not understand the law and wanted a second chance. The applicant also indicated that he would abide by the decision of the Court.

Respondent’s Submissions

1. The first respondent relied upon the written submissions that had been filed with the Court and had been provided to the applicant.

Considerations

1. I am recently satisfied from the material contained within the court book that the applicant provided an email address as his nominated contact address. Regulation 2.16(3) of the Regulations provides that ‘the Minister must notify the applicant of a decision to refuse a visa by one of the methods prescribed in s 494B of the Act’. This includes via a nominated email address. Section 494B(5)(d) of the Act specifies that the email address should be the last known email address provided to the Minister for the purposes of receiving documents. Pursuant to s 494B and s 494C(5) of the Act, where email is used, the applicant is taken to have received the document at the end of the day it was sent electronically. There is no requirement for the notification to be sent by post (see Haque v Minister for Immigration and Citizenship [2010] FCA 346 at paragraph [64]).

2. 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.

3. 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.

Conclusion

1. The application is dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:  

Date:  7 August 2019