CBM15 v Minister for Immigration - [2016] FCCA 1333

FEDERAL CIRCUIT COURT OF AUSTRALIA

CBM15 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1333

Catchwords:

MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal erred in finding it had no jurisdiction to hear the matter – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.412(1)(b), 476, 494B, 494C

Migration Regulations 1994, reg.4.31

Cases cited:

ASE15 v Minister for Immigration & Border Protection [2015] FCCA 2581
Minister for Immigration and Border Protection v ASE15 [2016] FCAFC 37
Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 77

First Applicant:

CBM15

Second Applicant:

CBN15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2755 of 2015

Judgment of:

Judge Street

Hearing date:

1 June 2016

Date of Last Submission:

1 June 2016

Delivered at:

Sydney

Delivered on:

1 June 2016

REPRESENTATION

The first applicant appeared in person

Counsel for the First Respondent:

Mr G Johnson

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

The application is dismissed.
The applicants pay the costs of the first respondent fixed in the amount of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2755 of 2015

CBM15

First Applicant

CBN15

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision the Tribunal made on 10 September 2015 holding that the Tribunal did not have jurisdiction in the matter. The Tribunal, in its reasons, noted that the application for review of the delegate’s decision was lodged on 24 March 2015. The delegate’s decision, in which the delegate refused to grant the applicants Protection (Class XA) visas, was made on 23 January 2015.
A letter dated 23 January 2015 was sent to the first applicant’s last known residential address. The first applicant’s last known residential address was identified on a change of address form 99 sent to the Department on 18 September 2014. That change of address form identified both a residential address and had completed the address for correspondence as above and also provided an email address for contact and had completed a para.10 “effective dates for new details” 18 September 2014 to 31 December 2014.
The first applicant became concerned that he had not received a decision from the delegate and sent a letter to the Department that was received on 24 February 2015. That letter also asked for a response by email to the same email address that the first applicant had earlier provided. The first applicant was then resent the decision by email on 25 February 2015. The first applicant informed the Tribunal that he had not received the letter of notification. The Tribunal referred to ss.494B and 494C of the Migration Act1958 and found that the first applicant had been validly…

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: [2016] FCCA 1333
Decision Date: 1 June 2016

CaseChat Overview and Summary

The applicant, CBM15, sought judicial review of a decision by the Administrative Appeals Tribunal (Migration and Refugee Division) which found it lacked jurisdiction to hear the applicant's application for a Protection (Class XA) visa. The Minister for Immigration was the respondent.

The central legal issue before the Federal Court was whether the Tribunal had erred in law by determining it did not have jurisdiction to consider CBM15's protection visa application.

Judge Street found no jurisdictional error on the part of the Tribunal. The Court's reasoning focused on the specific criteria and requirements for the Tribunal to exercise its jurisdiction in relation to protection visa applications. Having determined that the Tribunal correctly applied the relevant legal principles and did not misinterpret or misapply the law concerning its jurisdictional reach, the application for judicial review was dismissed.

Orders