CGJ16 v Minister for Immigration - [2017] FCCA 2686

FEDERAL CIRCUIT COURT OF AUSTRALIA

CGJ16 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2686

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeal Tribunal (Tribunal) that it did not have jurisdiction to review decision of delegate of Minister for Immigration and Border Protection not to grant applicant a Protection (Class XA) visa because the applicant applied for review more than 28 days after the day on which the applicant was notified of the delegate’s decision – Tribunal correctly concluded it has no jurisdiction to consider application for review – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.66(1), 412, 412(1)(b), 414(1), 414(2), 438, 494B, 494B(4), 494C, 494C(4)

Migration Regulations 1994 (Cth), reg.2.16(3), 4.31, 4.31(2)

Cases cited:

Aneja v Minister for Immigration and Border Protection [2014] FCA 572
Minister for Immigration and Border Protection v ASE15 [2016] FCAFC 37

Rahman v Minister for Immigration and Border Protection [2016] FCA 662

SZVHE & Ors v Minister for Immigration & Anor [2016] FCCA 2332

Applicant:

CGJ16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2211 of 2016

Judgment of:

Judge Manousaridis

Hearing date:

26 October 2017

Date of Last Submission:

26 October 2017

Delivered at:

Sydney

Delivered on:

3 November 2017

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents:

Ms S Given of

HWL Ebsworth Lawyers

ORDERS

The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2211 of 2016

CGJ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, a citizen of the People’s Republic of China, seeks judicial review of a decision of the second respondent (Tribunal) that it did not have jurisdiction to review the decision of a delegate of the first respondent (Minister) not to grant to the applicant a Protection (Class XA) visa (Protection visa).

Background

On 6 April 2016 a delegate of the Minister refused to grant a Protection visa to the applicant. The delegate’s decision is notified in a letter dated 6 April 2016 from the Department of Immigration and Border Protection (Department) to the applicant. The letter is addressed to a Campsie address and encloses, amongst other things, a copy of the delegate’s “Protection Visa Assessment” dated 6 April 2016.[1]
[1] CB79-92
On 11 May 2016 the applicant telephoned the Department to inform it that he had changed his address. From the bar table the applicant, who is not legally represented, said he telephoned the Department after he returned to the address to which the letter dated 6 April 2016 had been sent, and was informed by a friend that a letter addressed to the applicant had been received, but the applicant’s friend told him that the letter had been returned. The applicant told me he sensed that the letter that was returned contained the delegate’s decision. The applicant also said that in his…

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: [2017] FCCA 2686
Decision Date: 3 November 2017

CaseChat Overview and Summary

This matter came before Judge Manousaridis of the Federal Court of Australia. The applicant, CGJ16, sought judicial review of a decision made by the Minister for Immigration. The central dispute concerned the validity of the Department's communication with the applicant regarding their Protection visa application, specifically whether the Department was restricted to communicating via electronic means as indicated by the applicant on the prescribed form.

The court was required to determine whether the applicant's agreement to electronic communication, as indicated on the visa application form, precluded the Department from using other methods of communication permitted under section 494B of the Migration Act 1958 (Cth). Additionally, the court considered a second claim that purported to challenge the merits of the applicant's protection claims, and the relevance of a certificate issued under section 438 of the Act, which the Minister conceded was invalid.

The court applied the reasoning from several previous Federal Court decisions, including *Rahman v Minister for Immigration and Border Protection*, *Minister for Immigration and Border Protection v Kim*, and *Haque v Minister for Immigration and Citizenship*. These authorities established that an applicant agreeing to electronic communication did not prevent the Department from utilising other statutory methods of communication, such as prepaid post to the last known residential address. The court found that the second claim disclosed no jurisdictional error as it sought to review the merits of the applicant's claims, which was outside the court's jurisdiction. The court admitted an inter-departmental email chain and a "Disclosure Decision Checklist" into evidence, noting the former contained a file note of a conversation with the applicant regarding a change of address.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The fourth matter the Minister addresses relates to the question contained in the prescribed form of application for a Protection visa whether the applicant agreed to the Department communicating with the applicant by fax, email, or other electronic means, and the statement that “[e]lectronic communication is the department’s preferred method of communication”.[21] The Minister referred to a number of authorities which have held that an applicant’s agreeing to the Department communicating by email did not prevent the Department from electing to communicate by the other methods provided for by s.494B of the Act.[22] One of the authorities on which the Minister relies is the judgment of Robertson J in Rahman v Minister for Immigration and Border Protection where his Honour said:[23]Although in the present case the appellant also gave an email address to the Department, this did not mean that the Minister did not effect the giving of the letter to the appellant when it was sent by prepaid post to the last residential address provided to the Minister by the recipient for the purposes of receiving documents: see s 494B. In Minister for Immigration and Border Protection v Kim [2014] FCA 390; 220 FCR 494 at [34]–[47], Buchanan J held that notification of the refusal of a visa by post under s 494B(4)(c) was effective despite the applicant having provided an email address when asked whether she agreed to the Department communicating with her by fax, e-mail or other electronic means. In so stating, Buchanan J followed Haque v Minister for Immigration and Citizenship [2010] FCA 346; 221 FCR 289 at [64]. Those decisions were followed in Radzi v Minister for Immigration and Border Protection [2014] FCA 626; 143 ALD 124 at [33]–[35] and, more recently, in Pathania v Minister for Immigration and Border Protection [2015] FCA 1262.[21] CB19[22] First Respondent’s Outline of Submissions, [25] [23] [2016] FCA 662 at [21] In my opinion, the reasoning of his Honour applies to the circumstances of the case before me. The second claim stated in the ground of application discloses no jurisdictional error by the Tribunal. The claim purports to take issue with the delegate’s decision on the merits of the applicant’s claims for Protection. The Minister has brought to the Court’s attention a certificate that had been issued purportedly pursuant to s.438 of the Act. The Minister accepts the certificate is invalid. Ms Given, who appeared for the Minister, informed me the Minister brought to the Court’s attention the certificate, not because it was relevant to the issue of whether the Tribunal had jurisdiction to consider the applicant’s application for review of the delegate’s decision – the Minister submitted the certificate was irrelevant – but because the certificate covered two documents which were relevant or, at least potentially relevant to the issues raised by the applicant’s claims. The first document is an inter-departmental email chain with a Service Centre post lodgement enquiry regarding the applicant's change of address in May 2016. It includes a file note of the conversation the applicant had with an officer of the Department on 11 May 2016 to which I have already referred. As should be apparent by now, I admitted the document into evidence. The other document is a “Disclosure Decision Checklist” which states it is “to be completed at the time of making the AAT reviewable decision”. That document is dated 6 April 2016.