CGC17 v Minister for Immigration
[2019] FCCA 597
•22 February 2019
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 |
| 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 questions 88, 89, 94, 95 and 96 of his Protection visa application form as follows:
a)he is seeking protection in Australia so that he does not have to return to Fiji;
b)he left Fiji to seek a better life and opportunity for not only himself but also for his family as they have struggled financially because his mother passed away and his father provides for a family of five siblings;
c)there was an argument amongst his siblings when his mother passed way as to land entitlements and his siblings have taken all the paperwork and titles to that land, leaving nothing for him to return to;
d)his siblings have a lot of connections with the police and he believes he will have charges laid against him, even without a valid warrant;
e)the authorities will not protect him because they will be offered money by his siblings to look for him and arrest him; and
f)he would not be able to relocate because he knows he wouldn’t be safe and the authorities would have a warrant for his arrest within the country.
Relevant Statutory Criteria for the Grant of a Protection Visa
A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6] The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7] Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:
... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....
Decision of Delegate
On 24 February 2017 the Delegate refused to grant to the Applicant the Protection visa. The Delegate found on the basis of the information before her that the Applicant did not fear harm for one of the reasons prescribed in s.5J(1)(a) of the Migration Act 1958 (Cth) (the Act) and was not a refugee and accordingly the Applicant did not satisfy the Refugee Convention criterion.
The Delegate was also not satisfied that the Applicant would be denied access to basic services and found that his claims, generally, did not satisfy the complementary protection criterion under s.36(2)(aa) of the Act and that the Applicant could avail himself of effective state protection. Accordingly, the Applicant did not meet the complementary protection criterion and the Delegate refused to grant the Protection visa to the Applicant.
I record that at the hearing in this Court on 13 February 2019 the Applicant informed me from the Bar Table that he had received the Decision Record of the Delegate and the notification of refusal letter on 24 February 2017, but that he did not check his emails until the stipulated 28 day period for the lodging of his application for merits review with the Tribunal had elapsed and that this was because he could not, at the relevant time, gain access to his emails due to a lack of funds.
I further note that, consistently with the concession that the Applicant made, in his application for merits review lodged with the Tribunal the Applicant stated that both the Decision Record of the Delegate and the notification of refusal letter were both dated 24 February 2017 and that they were received by him by email. Further, the Minister has relied on two affidavits which have a tendency to establish that the Decision Record of the Delegate and the notification of refusal letter were sent by email to the Applicant on 24 February 2017.
Accordingly, on the evidence before me I find that s.66 of the Act has been complied with and that the Applicant is to be taken to have been notified of the Delegate’s decision at the end of the day, being 24 February 2017, and that the 28 day period in which the Applicant could validly lodge an application for merits review with the Tribunal expired on 24 March 2017.
Tribunal Decision
On 31 March 2017 the Applicant lodged an application for merits review of the Delegate’s decision with the Tribunal. By letter dated 11 April 2017 the Tribunal wrote to the Applicant and pointed out that it appeared that the review application lodged by him was not valid, as it had not been lodged with the Tribunal within 28 days commencing on the day on which the Applicant was notified of the decision of the Delegate, which in his case was the date of the Delegate’s decision, namely 24 February 2017. This meant that the last day for lodging his review application was 24 March 2017, but it had not been lodged until 31 March 2017.
The Applicant was also in this letter invited to respond to this preliminary view of the Tribunal, which he did by letter dated 13 April 2017. The Applicant’s response of 13 April 2017 stated as follows.
I, [CGC17] am writing this letter in regards to review for my application for review. Since my lodging of my initial application of a Protection Visa on 24 February 2017, I had been waiting eagerly for a response from the Immigration office. I had not received any emails or a response, which left me worrying. I had therefore decided to come into the Office on the 31 March 2017 and that’s when I had put in my application for a Tribunal.
I would be very grateful if you were able to review my application.
Unfortunately that response did not really address the issue which the Applicant faced in relation to the points made by the Tribunal in its letter dated 11 April 2017.
By its Decision Record dated 28 April 2017 the Tribunal found that it had no jurisdiction to review the Delegate’s decision. It found that the Applicant had to lodge his application for review with the Tribunal within 28 days, commencing on the day that the Applicant was notified of the decision of the Delegate which, the Tribunal was satisfied, was by email on 24 February 2017.
The Tribunal was satisfied that the Applicant had been notified of the Delegate’s decision in accordance with the relevant statutory requirements. The Tribunal further found that under s.494C of the Act the Applicant was taken to have been notified of the decision on 24 February 2017 and that meant that he had until 24 March 2017 to apply for review, but that he had not done so until 31 March 2017 and the Tribunal had no jurisdiction.
Grounds of Application to the Court
The Grounds appearing in the Application filed in this Court are as follows:
1. The decision of the Administrative Appeals Tribunal is vitiated by jurisdictional error in that the Tribunal had jurisdiction to hear and determine my application given the fact that the Minister on the evidence before the Tribunal had failed to properly notify me of his decision according to law.
2. The decision of the Tribunal is legally unreasonable, irrational, illogical and plainly unfair in that the Tribunal had jurisdiction to hear and determine my application.
3. The Tribunal constructively failed to exercise jurisdiction and it is a denial of procedural fairness.
Ground 1
This Ground contends that the Tribunal did have jurisdiction to review the Delegate’s decision of 24 February 2017. I will interpret this Ground as contending that the decision by the Tribunal that it did not have jurisdiction was legally wrong.
However, in my view the decision of the Tribunal was clearly correct. The evidence that is before me establishes that the Decision Record of the Delegate and the notification of refusal letter both dated 24 February 2017 were sent by email to the Applicant’s email address. That meant that under the statutory legislation the application for review had to be lodged by the Applicant with the Tribunal by, as was found by the Tribunal, 24 March 2017, but it was in fact lodged on 31 March 2017.
The relevant statutory regime has recently been analysed and considered by Allsop CJ in DZE17 v Minister for Immigration and Border Protection [2018] FCA 1521 and I do not consider it necessary to set out that regime again here. In my view, the Tribunal was correct to find that the application for merits review was lodged outside the statutory time limit and was therefore invalid and accordingly the Tribunal had no jurisdiction to hear the review application on its merits.
Unfortunately for the Applicant there is no provision in the Act that allows the Tribunal or a Court to override or extent the time limit prescribed by s.412(1)(b) of the Act and reg.4.31(2) of the Migration Regulations 1994 (Cth) (Regulations) or any jurisdiction to entertain an application that was not made within time. As Charlesworth J stated in Calimoso v Minister for Immigration and Border Protection [2016] FCA 1335 of s.347(1)(b) (the analogue provision to s.412(1)(b)) at [29]:
[29] The time period in which an application for review must be filed in absolute. The Tribunal has no discretion to extend the time in which an application may be made.
In my view, Ground 1 fails to establish jurisdictional error.
Ground 2
Again this Ground contends that the Tribunal had jurisdiction to hear and determine the merits review and that the Tribunal’s refusal to conduct merits review was legally unreasonable, irrational or illogical and plainly unfair. However, for the reasons already given, in my view the Tribunal’s finding that it had no jurisdiction was plainly correct.
Accordingly, Ground 2 fails to establish jurisdictional error.
Ground 3
This Ground also fails. The Tribunal did not constructively, but rather actually found that it had no jurisdiction to review the Delegate’s decision and it was correct in that view. Further, there was no denial of procedural fairness. The Tribunal’s letter dated 11 April 2017 (see [11] above) invited the Applicant to comment on the validity of his merits review application, and he did so, and these comments were expressly considered by the Tribunal in its Decision Record at [4] and [5]. In my view, to the extent that the Tribunal was required to afford the Applicant common law procedural fairness, it did so by inviting him to comment on the validity of his application.
Ground 3 fails to establish jurisdictional error.
Conclusion
The Applicant has failed to establish that the decision of the Tribunal that it had no jurisdiction suffers from jurisdictional error and accordingly the Application filed in this Court is to be dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 11 March 2019
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