CEV16 v Minister for Immigration and Border Protection
[2018] FCA 645
•7 May 2018
FEDERAL COURT OF AUSTRALIA
CEV16 v Minister for Immigration and Border Protection [2018] FCA 645
Appeal from: CEV16 v Minister for Immigration & Anor [2017] FCCA 322 File number: NSD 17 of 2018 Judge: ALLSOP CJ Date of judgment: 7 May 2018 Legislation: Migration Act 1958 (Cth)
Migration Regulation 1994 (Cth)
Date of hearing: 7 May 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 10 Counsel for the Appellant: The Appellant appeared in person Solicitor for the Respondents: Ms J Strugnell of Minter Ellison ORDERS
NSD 17 of 2018 BETWEEN: CEV16
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
ALLSOP CJ
DATE OF ORDER:
7 MAY 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from the transcript)ALLSOP CJ:
This is an application for an extension of time in which to file and serve an application for leave to appeal against orders made by the Federal Circuit Court of Australia. If an extension of time were to be granted, it is also an application for leave to appeal from the orders of the Federal Circuit Court judge. The applicant is a citizen of the People’s Republic of China and has applied for a protection visa. The application for protection visa was rejected by a delegate of the Minister. The applicant’s claim for protection had been supported by a statement, in which the applicant indicated that he was from Hebei province. He is a farmer and had been running an egg farm.
The applicant said that events in December 2012 changed his life from paradise into hell. A businessperson was said to want to build a chemical plant at the site of his egg farm. He declined the offer to sell his land. He then began to have trouble with strangers, suffered damage to his property, and his family and he began to fear harm. He said he was then assaulted and suffered fractures as a result. He went to the police station to report the events. The police refused to accept his story. He then went to Beijing to make his complaint known. Outside Beijing station, four to five persons were said to have taken him into a van where he was drugged into unconsciousness and he thereafter woke up in a dilapidated warehouse where he was beaten and severely injured.
He then went home and found that his egg farm had been demolished. The chemical plant owner took over the land and gave his family several ten thousand yuan. He had invested the whole of his assets of over a million yuan in the business. He took his petition to a higher level of government. He said he made a total of six petition trips over a period of one year. On each occasion, he was taken back. He was so frightened that he went to Guangzhou. With the help of his friends, he came to Australia. The delegate of the Minister refused the application for a protection visa, determining that he did not satisfy s 36(2) of the Migration Act 1958 (Cth) (the Act) on the basis that the refugee and complementary protection aspects of the section were not met.
The matter before me and the matter before the Federal Circuit Court does not and did not involve examining how the Administrative Appeals Tribunal (Tribunal) reviewed, on the merits, the decision of the delegate. That was because, on the reasoning of the Tribunal, the applicant was out of time in his application for review. The decision of the Tribunal was that it did not have jurisdiction. The terms of its decision were as follows:
APPLICATION FOR REVIEW
1.An application has been lodged for review of a decision of a delegate of the Minister for Immigration, date 5 May 2016, to refuse to grant a protection visa under s 65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 4 July 2016. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.
2.Pursuant to s 412(1)(b) of the Act and r 4.31 of the Migration Regulations 1994, an application for review of this decision had to be made within 28 days after the applicant was notified of the decision in accordance with the statutory requirements.
3.The material before the Tribunal indicates that the applicant was notified of the decision by letter date 5 May 2015 and dispatched by post. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
4.By letter dated 7 July 2016, the Tribunal wrote to the applicant informing him of its preliminary view that the application was not valid as it was not lodged within the relevant time limit. The applicant was invited to provide submissions on the matter by 1 August 2016. The Tribunal has not received a response to that letter.
5.The Tribunal finds that, in accordance with s 494C of the Act, the Applicant is taken to have been notified of the decision on 16 May 2016. Accordingly, the prescribed period within which the review application could be made ended on 14 June 2016. As the application for review was not received by the Tribunal until 4 July 2016, it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.
DECISION
6.The Tribunal does not have jurisdiction in this matter.
The matter came before the Circuit Court. At the Circuit Court, the primary judge dealt with the material before him and concluded that there was no basis to interfere with the conclusion of the Tribunal that the applicant was out of time. It would be wrong for this Court to either extend time for the filing of an application for leave to appeal or to grant leave to appeal if there was no merit in the appeal itself. The assessment of the merit in the appeal has to be directed to the conclusion by the Circuit Court that it had no jurisdiction.
Under sub-r 2.16(3) of the Migration Regulation 1994 (Cth) (the Regulations), the Minister is required to notify the applicant by one of the methods specified in s 494B of the Act. If the Minister gives a document to a person by a method specified in s 494B, the person is taken to have received the document at the time specified in s 494C. Section 494B(4) provides for dispatch by prepaid post or by other prepaid post, the method proven to have been used in this case. That subsection is in the following terms:
(4) Another method consists of the Minister dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or
(ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; or
(iii) if the recipient is a minor--the last address for a carer of the minor that is known by the Minister.
With respect to notification via the method in sub-s 494B(4), s 494C of the Act states that a person is taken to have received a document from the Minister seven working days after the date of the document if the document was dispatched from a place in Australia to an address in Australia, or, in any other case, 21 days after the date of the document. By s 412(1)(b) of the Act and sub-r 4.31(2) of the Regulations, an application for review of a decision must be given to the Tribunal by the applicant within 28 days; with this period commencing on the day the applicant is deemed to have been notified of the decision.
The confluence of all these provisions in the Act and Regulations is that the applicant was obliged to file his application for review to the Tribunal no later than 14 June 2016. The applicant lodged his review application on 4 July 2016. The harsh reality is that there was no capacity in the Tribunal to deal with the matter other than by expressing the view that it did: that it has no authority to undertake the review. In these circumstances, I see no error in the conclusion of the Federal Circuit Court judge that the matter should be summarily dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).
This leaves the applicant unable to obtain review of the delegate’s decision from the Tribunal. Whether or not the delegate’s decision itself can be attacked is not the subject of the application before me. It may well be the case that the less than clear provisions of ss 411, 476 and 476A are such as to deny authority to both the Circuit Court and the Federal Court to review the decision of the delegate. I do not have to decide that today. There is no application before me to review the decision of the delegate. Leaving aside any complexity of statutory interpretation of the definitions included in those provisions, the High Court of Australia may have jurisdiction to deal with the delegate’s decision by reason of the entrenched provision of s 75(v) of the Constitution, dealing with decisions of officers of the Commonwealth.
However, the application before me today is as to whether or not I should give an extension of time and leave to appeal in relation to the decision of the Tribunal not to exercise jurisdiction. On the material, I am persuaded that there is no basis to criticise the view of the Tribunal as to the timing of the application before it and the consequences of that view. There being no prospect of success of the appeal, I would dismiss the application for an extension of time to file and serve an application for leave to appeal, with costs.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop. Associate:
Dated: 8 May 2018
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