CEV16 v Minister for Immigration

[2017] FCCA 322

FEDERAL CIRCUIT COURT OF AUSTRALIA

CEV16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 322

Catchwords:
MIGRATION – Protection (Class XA) visa – Whether the Tribunal failed to comply with its statutory obligations – applicant taken to have received Tribunal letter – Tribunal complied with s.494B and s.494C of the Act – no jurisdictional error identified – application dismissed.

Legislation:

Federal Circuit Court Rules, r.44.12

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: CEV16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2161 of 2016

Judgment of: Judge Street

Hearing date: 24 February 2017

Date of Last Submission: 24 February 2017

Delivered at: Sydney

Delivered on: 24 February 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Ms J Strugnell

Minter Ellison Lawyers

ORDERS

1. The application is dismissed under r.44.12 of the Federal Circuit Court Rules2001.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2161 of 2016

CEV16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.467 of the Migration Act 1958 (“the Act”) in respect of a decision of the Administrative Appeals Tribunal made on 2 August 2016 holding that the Tribunal did not have jurisdiction in relation to the decision of the delegate made on 5 May 2016.

The Tribunal

1. The Tribunal identified that an application for review must be lodged within 28 days pursuant to s.412(1)(b) of the Act and r.4.31 of the Migration Regulations1994 (“the Regulations”).

2. The Tribunal found that the applicant was notified of the decision by letter dated 5 May 2016 dispatched by post. The Tribunal found the applicant had accordingly, been notified of the delegate’s decision refusing to grant the applicant a protection visa on 16 May 2016 and the time within which an application for review had to be made ended on 14 June 2015. The Tribunal found that the applicant had not applied for review until 4 July 2016, and accordingly held it did not have jurisdiction to review the matter.

Before this Court

1. At the commencement of the hearing, the applicant was informed that this was a hearing to determine whether the applicant had an arguable case of error by the Tribunal. The applicant was informed that this was a show-cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (“the Rules”).

2. The applicant was informed that the Tribunal had held it had no jurisdiction and the Court was considering whether the applicant had a reasonable argument that the decision of the Tribunal in that regard was unlawful or unfair.

3. The Court explained to the applicant it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the first respondent, and then hear submissions from the applicant in reply.  The applicant confirmed that he understood the nature of the hearing as explained by the Court. 

4. On 3 November 2016, a registrar of the Court fixed the matter for a show-cause hearing today and made orders providing the applicant with an opportunity to file an amended application, affidavit evidence, and submissions.  No such documents were filed.

5. The application identifies the following grounds:

   “1. Upon refusal of the decision by the Administrative Appeals Tribunal ("AAT") I made an application for Minister's Intervention. I did not wish to spend urmecessary money for court intervention. I was awaiting for the Minister's Intervention Unit's response before I could lodge this Federal Circuit Court ("Court") appeal.

   2. The Minister's Intervention Unit's response was sent to me on or about 27 July 2016. This gave me very little time to obtain legal advice as to my prospects of success in filing an appeal with this Court.

   3. By the time I retained a suitable representative to advise me accordingly and provide all the documents relevant to my case to the legal practitioner I was on the last day of time, being 35 days from the date of the decision of the AA T.

   4. I immediately boarded a plane to travel to Sydney to lodge this application, one (1) day out of time.

   5. I submit that I have not been lagging or unduly delaying the appeal application. Rather the circumstances were outside of my control and influence.

   6. I further submit that I have good prospects of winning this appeal as the decision made by the AAT, under appeal has been erroneous or in the alternate, that the AAT did not decide my matter in accordance with law, not giving proper weight to the evidence presented by me.

   7. I further submit that it would be in public interest that a leave for an extension of time be granted to me.”

   (All errors in original).

Consideration

1. Ground 1 simply is an assertion by the applicant of his claims to fear persecution and does not identify any arguable jurisdictional error by the Tribunal in holding that it did not have jurisdiction.

2. Ground 2 makes an assertion of error by the delegate and does not identify any arguable basis upon which it could be said there is jurisdictional error by the Tribunal.

3. Ground 3 acknowledges that the application was not filed in time, but takes issue with the existence of the statutory requirements. It is apparent that the statutory requirements apply to the Tribunal and that it is a necessary prerequisite that there is a valid application in accordance with s.412 of the Act, made within a period ending not later than 28 days after notification of the decision. Ground 3 accordingly, fails to identify any arguable jurisdictional error.

4. Ground 4 is a request for this Court to intervene on compassionate grounds. This Court has no jurisdiction to reconsider the merits or to grant the leave based on compassionate circumstances. The Court’s jurisdiction is confined to considering whether the Tribunal’s decision is affected, relevantly in this case, by reasonable argument, of jurisdictional error.

5. From the bar table, the applicant maintained that he did not receive the documents. Insofar as the applicant is asserting that he did not receive the letter sent by the Tribunal on 5 May 2016 notifying the decision of the delegate in accordance with s.66(1) of the Act, it is apparent on the evidence before the Court that that letter was correctly sent to the last-known address provided by the applicant in his application for a protection visa.

6. I accept the submissions of the first respondent that on the evidence before the Court, the letter was correctly sent by one of the methods permitted under s.494B of the Act, and that the applicant is taken to have received the letter under s.494C of the Act. The applicant’s assertion that he did not receive the letter is not supported by any evidence and, given the statutory provisions, no argument of jurisdictional error is made out by the assertion made by the applicant from the bar table.

7. I note that there was a certificate issued under s.438 of the Act identified in the Court book. I accept the first respondent’s submission that the certificate under s.428 of the Act is irrelevant in the circumstances of the present case where the tribunal held that there was no jurisdiction and that finding was correct.

8. The applicant also asserted that he would be at risk of persecution if he was returned to China. This Court does not have the power to revisit the underlying merits of the applicant’s application for protection and is confined to a consideration of whether or not the Tribunal’s decision is affected, relevantly, by reasonable argument, of jurisdictional error in relation to this application under r.44.12 of the Rules.

9. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60]. I find the application fails to disclose any arguable jurisdictional error. Nothing said by the applicant from the bar table identified any arguable jurisdictional error. I am satisfied that this is an appropriate case in which to exercise the Court’s powers, under rule 44.12 of the Rules.

Conclusion

1. The application is dismissed under r.44.12 of the Rules.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 3 March 2017