DFQ17 v Minister for Immigration

[2018] FCCA 635

FEDERAL CIRCUIT COURT OF AUSTRALIA

DFQ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 635

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a permanent protection visa –whether the Tribunal made a mistake about its jurisdiction – whether the applicant had been notified of the delegate’s decision – no jurisdictional error made out – application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 476, 494B, 494C

Migration Regulations1994 (Cth) r. 4.31

Cases cited:

CWL17 v Minister for Immigration & Anor [2017] FCCA 2664

Applicant: DFQ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2273 of 2017

Judgment of: Judge Street

Hearing date: 7 March 2018

Date of Last Submission: 7 March 2018

Delivered at: Sydney

Delivered on: 7 March 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms J Strugnell
MinterEllison

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2273 of 2017

DFQ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 12 July 2017 holding that the Tribunal did not have jurisdiction to review a decision of the delegate made on 3 February 2017 refusing to grant the applicant a protection visa.

2. The applicant, who was found to be a citizen of China, was granted a subclass FA 600 tourist visa on 26 June 2016. The applicant arrived in Australia on 28 June 2016. On 7 July 2016, the applicant applied for a permanent protection visa (subclass XA-866).

3. On 3 February 2017, a delegate found the applicant failed to meet the criteria for the grant of a protection visa. It was not until 28 March 2017 that the applicant lodged an application for review. The application for review was lodged outside the 28-day period identified under r 4.31(2) of the Migration Regulations1994 (Cth), which commences on the day the applicant was taken to have been notified. In the present case, the Tribunal found the applicant had been notified on 3 February 2017.

4. The Tribunal wrote to the applicant on 9 June 2017, identifying that the application appeared to have been lodged outside the relevant period and identified that the delegate’s decision was posted to the applicant on 3 February 2017, which meant the applicant was taken to have been notified on 14 February 2017 under the statutory regime.

5. The applicant was given an opportunity to respond in relation to the validity of the application for review. The Tribunal noted that no further material was received from the applicant in response to that application. The Tribunal made findings that the applicant had been notified by the letter dated 3 February 2017 sent to the PO Box on the applicant’s originating application and found the applicant had been notified of the decision on 14 February 2017, consistent with s 494C of the Act and found that the Tribunal had no jurisdiction.

Before the Court

1. At the commencement of the proceedings the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision that it had no jurisdiction was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further review. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair the application would be dismissed with costs.

2. The Court explained that it would first have identified the evidence and then hear submissions from the applicant and then hear submissions from the solicitor for the first respondent and then give the applicant an opportunity to put submissions in reply. The applicant confirmed that she understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant maintained that she had never received the notification and that she checked her mailbox once a week. There was no evidence put on by the applicant in support of those assertions, notwithstanding that a direction was made by the registry on 19 October 2017, giving the applicant an opportunity to file an amended application, affidavit evidence and submissions.

4. Nonetheless, even accepting the applicant’s assertions that she did not observe the receipt of the letter, under the statutory regime the applicant had identified an address in the application for a protection visa as a postal address and on the evidence before the Court the decision of the Tribunal was sent to that post office box address on 3 February 2017 and accordingly, the applicant was taken to have been notified under s 494C of the Act as found by the Tribunal on 14 February 2017.

5. From the bar table, the applicant also asserted that there was a decision of this Court in CWL17 v Minister for Immigration & Anor [2017] FCCA 2664 that supported the applicant as being entitled to relief. That case is clearly distinguishable from the present case as it refers to circumstances in which the Court found that there was a communication sent to an address for service provided by the applicant otherwise than in accordance with s 494B(4)(c)(i) of the Act.

6. In the present case, the applicant identified the postal address in the application and it was that postal address to which the decision was sent. Nothing said by the applicant identified any jurisdictional error.

7. The grounds of the application are as follows:

   1. AAT is making a mistake about jurisdiction.

   2. AAT didn’t correct the mistake made by the immigration department.

   3. The immigration department didn’t send the letter to my po box.

8. In relation to ground 1, the Tribunal did not make a mistake about its jurisdiction and correctly identified the relevant issues in respect of whether the applicant had been notified of the delegate’s decision. It was open to the Tribunal to find that the applicant had been notified in accordance with the statutory regime for reasons given by the Tribunal. No jurisdictional error is made out by ground 1.

9. In relation to ground 2, this assumes the existence of a mistake which has not been identified. Ground 2 fails to make out any jurisdictional error.

10. In relation to ground 3, this Court has received evidence that demonstrates that the letter was sent to the post office box identified by the applicant. In those circumstances the assumption underlying ground 3 is flawed and the Court finds the applicant was notified in accordance with the statutory regime and was taken to have received the letter. Accordingly, ground 3 fails to make out any jurisdictional error.

11. As the application fails to make out any jurisdictional error the application is dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 30 April 2018