CHG17 v Minister for Immigration

[2018] FCCA 2153

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHG17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2153

Catchwords:
MIGRATION – Tribunal having no jurisdiction – tribunal found that applicant was correctly notified of delegate’s decision in accordance with s 494C of the Migration Act – application to the tribunal incompetent for being filed out of time – application dismissed.

Legislation:

Migration Act 1958, ss.494C, 494C (4)(a)

Cases cited:

BMU16 v Minister for Immigration and Border Protection [2018] FCA 880

DZAFH v Minister for Immigration and Border Protection [2017] FCA 984

SZULH v Minister for Immigration and Border Protection [2015] FCA 835

Applicant: CHG17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1116 of 2017

Judgment of: His Honour Judge Wilson

Hearing date: 6 August 2018

Date of Last Submission: 6 August 2018

Delivered at: Melbourne

Delivered on: 9 August 2018

REPRESENTATION

Applicant: In person

Solicitors for the Applicant: None

Counsel for the First Respondent:

Solicitors for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: None

Solicitors for the Second Respondent: Australian Government Solicitor

ORDERS

1. The application filed on 29 May 2017 is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $3, 606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1116 of 2017

CHG17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By application filed 29 May 2017 the applicant sought judicial review of a decision of the Administrative Appeals Tribunal made 18 May 2017. Pursuant to that decision the tribunal decided it did not have jurisdiction in this matter.  The applicant contends that she is entitled to the issue of constitutional writs.

2. In essence, the delegate refused to grant the applicant a protection (subclass 866) visa. The department sent notification of that refusal to the applicant by registered post on 18 March 2016.  The applicant had 28 days within which to apply for merits review before the tribunal.  That meant that the applicant should have applied to the tribunal a little earlier than 18 April 2016.  Instead she applied to the tribunal on 13 April 2017, that is to say, the following year.  She was more than 365 days late in filing her application for a merits review.

3. The applicant wrote to the tribunal on 28 April 2017 stating that she was not aware of the delegate’s refusal until March 2017.  On 21 March 2017 the applicant informed the department of her change of address.

4. In its reasons the tribunal considered whether the delegate’s reasons and decision had been properly served on the applicant.  The tribunal concluded that the delegate’s decision was properly served in the correct manner and that the applicant did not file the application to the tribunal within the prescribed period.  The tribunal referred to a proposition advanced by the applicant for not applying for a merits review earlier, namely, that the applicant was awaiting the response to her freedom of information request.  The tribunal decided to not delay in the provision of its reasons.

5. In my view the tribunal’s finding that the applicant had been correctly notified of the delegate’s decision was in accordance with ss. 494C of the Migration Act and that finding was correct.  The tribunal found that the applicant should have filed an application for merits review by the end of April 2016.  The tribunal stated that it had no jurisdiction as the application to it in this case was made outside of the prescribed period.

6. I detected no error in that conclusion.

7. The minister submitted that the tribunal was bound to find that it had no jurisdiction, relying on SZULH v Minister for Immigration and Border Protection.[1] I agree.

   [1] [2015] FCA 835

8. The minister also submitted that pursuant to s. 494C (4)(a) of the Migration Act, the applicant was deemed to have been notified seven working days after the date of the delegate’s decision.  Two public holidays and four non-working days fell immediately after

   
   

   18 March 2016 meaning that seven working days after 18 March 2016 brought the relevant calculation to 31 March 2016.  Come what may, the calculation was seriously contravened by the applicant who filed her application to the tribunal on 13 April 2017, over a year later.

9. The application to the tribunal was incompetent for being filed out of time. The tribunal correctly so found, as do I.

10. My decision has the support of Perry J in BMU16 v Minister for Immigration and Border Protection[2] and Davies J in DZAFH v Minister for Immigration and Border Protection.[3] I have no discretion.

    [2] [2018] FCA 880

    [3] [2017] FCA 984

11. I dismiss this application to this court and order the applicant to pay the minister’s costs.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson

Date: 9 August 2018