CGC17 v Minister for Immigration - [2019] FCCA 597

FEDERAL CIRCUIT COURT OF AUSTRALIA

CGC17 v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 597

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for judicial review of decision of Administrative Appeals Tribunal that it had no jurisdiction to review a decision of a Delegate of the Minister for Immigration not to grant to him a Protection visa because the application to it was made seven days late – Administrative Appeals Tribunal found that applicant was taken to be notified of refusal decision in accordance with s.494C of the Migration Act 1958 (Cth) – no jurisdictional error identified – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J, 36, 66, 347, 412, 494C

Migration Regulations 1994 (Cth)

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604
Calimoso v Minister for Immigration and Border Protection [2016] FCA 1335
DZE17 v Minister for Immigration and Border Protection [2018] FCA 1521

Applicant:

CGC17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1623 of 2017

Judgment of:

Judge Dowdy

Hearing date:

22 February 2019

Delivered at:

Sydney

Delivered on:

22 February 2019

REPRESENTATION

The Applicant appeared
in person.

Counsel for the First Respondent:

Mr D. Baddeley

Solicitors for the First Respondent:

Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

The Application filed in this Court on 25 May 2017 is dismissed.
The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $5,700.
Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicants have up to and including 29 March 2019 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1623 of 2017

CGC17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

The Applicant is a male citizen of Fiji aged 29 years, having been born on 4 July 1989.
By Application filed in this Court on 25 May 2017 he seeks to quash and impliedly have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 28 April 2017 which found that it had no jurisdiction to review the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 24 February 2017 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa).

Background

The Applicant arrived in Australia on 11 April 2014 as the holder of a Temporary Work (Short-Stay Activity) (Class GA) (Subclass 400) visa. He applied for the Protection visa on 11 January 2017, when he agreed that the Department of the Minister could communicate with him by email and gave his email address (Applicant’s email address).

Applicant’s Claims to Protection

The Applicant’s claims to protection were set out in his answers to…

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: [2019] FCCA 597
Decision Date: 22 February 2019

CaseChat Overview and Summary

The applicant, CGC17, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which found it lacked jurisdiction to review the Minister's delegate's refusal to grant a Protection visa. The AAT's determination was based on the applicant's application to the Tribunal being made seven days after the prescribed time limit.

The central legal issue before the Federal Circuit and Family Court of Australia was whether the AAT had erred in law by finding that the applicant was taken to have been notified of the refusal decision in accordance with section 494C of the *Migration Act 1958* (Cth), thereby concluding it had no jurisdiction to consider the merits of the visa refusal.

Judge Dowdy reasoned that the AAT's finding regarding notification under section 494C was a factual determination open to it, and no jurisdictional error was identified in that process. The Court applied the principles of judicial review, focusing on whether the AAT had made an error of law in its jurisdictional assessment. As no such error was found, the application for judicial review was dismissed.

Orders