Cen20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 343
•25 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
CEN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 343
File number(s): BRG 268 of 2020 Judgment of: JUDGE EGAN Date of judgment: 25 February 2021 Catchwords: MIGRATION – Failure to lodge applications for review of delegate’s decisions within time – invalid applications filed out of time – failure by Tribunal to hear matters – no jurisdictional error established – applications dismissed. Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 494C(5).
Migrations Regulations 1994 (Cth) rr 4.31(2), 4.31AA.Cases cited: SZJQC v Minister for Immigration and Citizenship & Anor [2008] HCASL.
DZAFH v Minister for Immigration and Border Protection [2017] FCA 984.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.Number of paragraphs: 13 Date of last submission/s: 24 February 2021 Date of hearing: 24 February 2021 Place: Brisbane Applicants The First Applicant appearing on behalf of the Applicants First Respondent Ms Topham of Minter Ellison Second Respondent Submitting appearance save as to costs ORDERS
BRG 268 of 2020 BETWEEN: CEN20
First Applicant
CFA20
Second Applicant
CFD20
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
25 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The Application for Review filed on 8 May 2020 be dismissed.
2.The First Applicant and the Second Applicant pay the First Respondent’s costs of and incidental to the Application for Review in the fixed amount of $6,100.00.
REASONS FOR JUDGMENT
JUDGE EGAN:
The applicants are citizens of the Republic of Fiji. They each applied for Protection (Class XA) (Subclass 866) Visas on or about 13 June 2019.
On 30 December 2019, a delegate of the Minister refused to grant the visa applications on the grounds that the applicants did not satisfy the relevant criteria for such grant under s. 36(2)(a) and s. 36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’).
The applicants were duly notified of the delegate’s decision by email dated 30 December 2019. [1] Pursuant to the provisions of s. 494C(5) of the Act, the applicants were thereby taken to have received the notice of refusal of the applications for the visas at the end of the day on 30 December 2019.
[1] See confirmation of notification – affidavit of Ms Topham filed on 10 February 2021 and annexure RBT-
In its reasons handed down on 21 April 2020, the Administrative Appeals Tribunal (‘the Tribunal) recorded that pursuant to the provisions of r. 4.31(2) of the Migrations Regulations 1994 (Cth) (‘the Regulations’), the applicants were required to file any application for review of the delegate’s decision within 28 days commencing on the day of notification of refusal. It was agreed at the hearing that as notice was given on 30 December 2019, any application for review was required to be filed on or before 28 January 2020. Regulations 4.31(2) and 4.31AA of the Regulations relevantly provided as follows:
“4.31 Time for lodgement of application with Tribunal
(2) For paragraph 412(1)(b) of the Act, if an applicant is not in immigration detention on the day the applicant is notified of a Part 7‑reviewable decision, the period in which an application for review of the decision must be given to the Tribunal by or for the applicant is 28 days, commencing on the day the applicant is notified of the decision.
Note: If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.
4.31AA Giving application to the Tribunal
(1) An application for review by the Tribunal of a Part 7‑reviewable decision must be given to the Tribunal by:
(a) leaving it with an officer of the Tribunal at a registry of the Tribunal, or with a person specified in a direction given by the President of the Tribunal under section 18B of the Administrative Appeals Tribunal Act 1975; or
(b) sending it by pre‑paid post to a registry of the Tribunal; or
(c) having it delivered by post, or by hand, to an address specified in a direction given by the President of the Tribunal under section 18B of the Administrative Appeals Tribunal Act 1975; or
(d) faxing it to a fax number specified in a direction given by the President of the Tribunal under section 18B of the Administrative Appeals Tribunal Act 1975; or
(e) transmitting it to a registry of the Tribunal by other electronic means specified in a direction given by the President of the Tribunal under section 18B of the Administrative Appeals Tribunal Act 1975.
(2) An application made to the Tribunal in accordance with paragraph (1)(a) or (b) is taken to have been received by the Tribunal at the time the Tribunal receives it.
(3) An application made to the Tribunal in accordance with paragraph (1)(c) is taken to have been received by the Tribunal at the time it is received at the relevant address.
(4) An application made to the Tribunal in accordance with paragraph (1)(d) is taken to have been received by the Tribunal at the time it is received at the relevant fax number.
(5) An application made to the Tribunal in accordance with paragraph (1)(e) is taken to have been received by the Tribunal at the time the Tribunal receives it.”
The Tribunal further recorded that on 30 January 2020 it wrote to the applicants seeking their comments on the Tribunal’s assessment that the visa applications had been lodged outside the statutory time limit and were therefore invalid. It was noted that the representative of the applicants asserted in response that the applications for review had been lodged on 20 January 2020 and that somehow a technical error must have deleted the recording of the making of such applications on 20 January 2020 from the Tribunal’s records system.
There was no evidence before the Tribunal, or before this Court, that any applications for review were lodged with the Tribunal prior to 29 January 2020. [2] The applicants have failed to discharge their onus in that regard.
[2] See Court Book (CB) pp. 175 – 177.
In SZJQC v Minister for Immigration and Citizenship & Anor [2008] HCASL 66, Kirby and Heydon JJ said at [2] – [4] as follows:
“[2] Notification of that decision was sent to the applicant's nominated postal address on 3 May 2006. The applicant is taken to have received the notification by 12 May 2006. However, the application to the Tribunal, dated 12 June 2006, was not received until 13 June 2006. This meant that the application for review was outside the 28 days time limit expressed in s 412(1)(b) of the Migration Act 1958 (Cth) and Regulation 4.31(2)(b) of the Migration Regulations 1994 (Cth). At the very latest, on the foregoing chronology, the 28 day period would have expired on 9 June 2006.
[3] There is no statutory power for the Tribunal, or anyone else, to extend the time limit, whatever the reasons for the default. The applicant has asserted that at all times he acted promptly by approaching a registered migration agent and instructing her to ensure the protection of his rights. He states that he trusted the registered migration agent to help him "competently, diligently and fairly"; that he was very disappointed that this had not occurred; that it had involved a breach of duty to him; and that he did now not trust any migration agent. He contended that, if correct, the unchangeable time limit would deprive him of substantive rights without any judicial consideration of the "substantial justice and the merits of the case" as s 420 of the Act ordinarily requires. He complains that the delay "is not my fault" and that he had been unaware of the "time limit of my right to appeal".
[4] Upon the assumption that the mandatory time limit in this instance is a valid law of the Commonwealth, no error is shown in the reasoning of the Federal Court and the Federal Magistrate. Without a challenge to the constitutional validity of the time limit, there is no prospect that the decisions below could be altered. The applicant does not specifically challenge the validity of the subject law. On that footing, there is no prospect that an appeal to this Court would enjoy any prospect of success. The application for special leave must therefore be refused.”
In DZAFH v Minister for Immigration and Border Protection [2017] FCA 984 at [5], Davies J said as follows:
“[5] The FCC was correct to hold that the seventh working day commencing on the day when the appellant received notification of the delegate’s decision was 18 November 2014 and that as an application was not lodged with the Tribunal within the requisite time, the Tribunal had no jurisdiction to review the delegate’s decision. It is well established that an application that is not given to the Tribunal within the requisite period prescribed by s 412(1)(b) of the Act and regulation 4.31 of the Migration Regulations is not valid and the Tribunal has no jurisdiction to review an application given out of time: the authority is SZULH v Minister for Immigration and Border Protection [2015] FCA 835 and the cases cited at [17].”
The Court finds that the Tribunal did not err in finding that because the application for review was not received by it within the prescribed time, the Tribunal had no jurisdiction to hear the application. Further, the Tribunal did not otherwise have power to extend time for any hearing to occur.
Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The applicants have failed to establish jurisdictional error on the part of the Tribunal.
The application for review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 25 February 2021
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