CBM15 v Minister for Immigration
[2016] FCCA 1333
•1 June 2016
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 |
| 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 notified by the letter dated 23 January 2014, which was posted on 27 January 2015.
It was in those circumstances the Tribunal held that it did not have jurisdiction because the application had not been validly made within s.412(1)(b) of the Migration Act 1958 and reg.4.31 of the Migration Regulations 1994.
The application identifies the following ground:
The Tribunal's decision is wrong because I concluded that it has no jurisdiction to decide in my case.
Particulars
I have provided and authorised the Department of Immigration and order Protection to send all the correspondence to me by email. I have at least three times advised the department. The Department was aware that I did not receive the refusal notification since the refusal notification was returned to them. In that case, the department has an obligation to send the decision to me by email and did not send me by email.
On 19 November 2015 a Registrar of the Court gave the applicants an opportunity to file an amended application, affidavit, evidence and submissions. The applicants did file a further affidavit but no other documents.
In relation to the ground of the application, the first applicant confirmed that his request for communication by email occurred after the sending of the letter dated 23 January 2015. The first applicant gave sworn evidence that he did not receive the letter. The Court accepts that evidence. However, ss.494B and 494C create a statutory scheme for the effective administration of visa applications, the purpose of which was identified in the Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 77 at 32, being to provide certainty in relation to that scheme.
At the commencement of the hearing the Court explained to the first applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error and the Court explained that the relevant legal error could be either an excess of statutory power or denial of procedural fairness. The Court explained that, in summary, this meant determining whether the decision of the Tribunal was lawful and whether it was fair. The Court explained to the applicant that it would identify the evidence and then hear submissions from the first applicant and then submissions from counsel for the first respondent and submissions from the first applicant. The applicant confirmed that he understood the nature of the hearing as explained by the Court.
The applicant confirmed that, whilst he was living at the address to which the letter was sent, he never received the letter and did not receive any notification of registered mail. I accept that evidence. However, the statutory scheme is one that binds this Court. The question of fairness is not at large and is to be determined by reference to the statutory scheme. Whilst the applicant would, in fact, have been able to lodge an application within time after he received the email on 25 February 2015, he did not do so.
Further, if the applicants had been treated as notified for the first time on 25 February 2015, the application for review would then have been within time. The difficulty the applicants confront is that the statutory scheme deems a position in relation to the last residential address provided by the applicants to the Minister whereby the applicants are taken to have received the document within seven working days after the document was dispatched. On the evidence before the Court the document was dispatched on 27 January 2015.
On any view, the time for the application for review following the deemed receipt under s.494C had expired by the time the applicants lodged the application, which occurred on 24 March 2015. I accept the first respondent’s submission that para.10 on the Form 929 does not create procedural unfairness in the present case that could give rise to an assertion that there had been no last residential address provided within the meaning of s.494B(4).
I accept the first respondent’s submission that this case is distinguishable in the circumstances in ASE15 v Minister for Immigration & Border Protection [2015] FCCA 2581 at paras.20-24, which I note was not the subject of challenge in the decision before the Full Court in Minister for Immigration and Border Protection v ASE15 [2016] FCAFC 37.
The Tribunal complied with its statutory obligations. The Tribunal raised with the applicants its concern in relation to the time limit in respect of the application by letter dated 31 August 2015, and the applicants, through their legal representative, provided material in response to that concern. In the circumstances of the present case, the Tribunal complied with the requirements of procedural fairness in relation to the applicant’s application. Ground 1 of the application fails to make out any jurisdictional error.
Notwithstanding that the Court accepts the applicants’ evidence that they did not receive the letter for the reasons given, nothing said by the applicants identified any jurisdictional error.
The Court notes that in the circumstances of this case, it may be one in which the Minister may see fit to exercise the Minister’s residual discretion. That is not a matter upon which this Court has any role. The application is dismissed.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 16 June 2016
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