DGL21 v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 819

Federal Circuit and Family Court of Australia

(DIVISION 2)

DGL21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 819  

File number(s):

BRG 425 of 2021

Judgment of:

JUDGE EGAN

Date of judgment:

6 October 2022

Catchwords:

MIGRATION – Application for Review by the Administrative Appeals Tribunal filed out of time – no power on the part of the Tribunal to extend time – finding by Tribunal that it did not have jurisdiction to hear and determine an application filed out of time – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1954 (Cth) ss 66(2), 347, 347(1)(b)(i)

Migration Regulation 1994 (Cth) sub-regulation 2.16(3)

Cases cited:

Patel v Minister for Immigration and Citizenship [2012] FCA 145

Division:

Division 2 General Federal Law

Number of paragraphs:

12

Date of last submission/s:

5 October 2022

Date of hearing:

5 October 2022

Place:

Brisbane

Applicants:

The First Applicant appearing on behalf of the Applicants

Solicitor for the First Respondent:

MinterEllison

Second Respondent:

Submitting appearance save as to costs

ORDERS

BRG 425 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DGL21

First Applicant

DGM21

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE EGAN
DATE OF ORDER:	6 October 2022

THE COURT ORDERS THAT:

1.The Originating Application for Review filed on 20 September 2021 be dismissed.

2.The First Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $5,900.00.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

Judge Egan

Introduction

1. The first applicant is a citizen of Malaysia who arrived in Australia with her child, the second applicant, on 26 December 2018. The applicants entered Australia on valid Malaysian passports.

2. On 16 June 2020, the first applicant made application for a protection visa. The second applicant was included in that application as a member of the first applicant’s family unit.

3. On 17 December 2020, a delegate of the Minister refused the application for a protection visa. On the same day, the department notified the applicant of the delegate’s decision by sending an email to the first applicant’s nominated email address. [1]

   [1]           Annexure ATT 1 to the affidavit of Ms Tinlin filed on 22 July 2022 and sub-regulation 2.16(3) of the

4. By the sending of the email to the first applicant on 17 December 2020, the applicants were taken to have duly been given notice of the delegate’s decision on that day pursuant to the provisions of s. 66(2) of the Migration Act 1954 (Cth) (the Act). [2]

   [2]           Exhibit 1 - Court Book (CB) pp. 71 - 81. 

5. Any application for review of the decision of the delegate by the Administrative Appeals Tribunal (the Tribunal) was required to be made within 28 days of 17 December 2020 pursuant to the provisions of s. 347(1)(b)(i) of the Act, namely by 14 January 2021. The Tribunal did not have power, under either the Act or the Regulations, to extend the prescribed period as set out in s. 347 of the Act. [3]

   [3]           Patel v Minister for Immigration and Citizenship [2012] FCA 145 at [7] per Marshall J.

6. The application for review of the decision of the delegate was not made to the Tribunal until 20 January 2021. There was no dispute that the purported application for review of the decision of the delegate was made out of time. An application for extension of time was erroneously made on the basis that the date to which an extension of time was sought was 20 January 2021.

7. When considering the filing of the application for review by the Tribunal out of time, the Tribunal at [4] of its reasons found as follows:

   “[4]On 20 January 2021, the Tribunal invited the applicants to comment on the validity of the application for review. The letter outlined:

   a. It appears that your application is not a valid application as it was not lodged within the relevant time limit. Pursuant to r.4.31(2) of the Migration Regulations 1994, the period in which an application for review of a Part 7- reviewable decision must be given to the Tribunal is 28 days, commencing on the day the applicant is notified of the decision. In DZAFH v Minister for Immigration [2017] FCCA 387, the Federal Circuit Court held that the prescribed period in r.4.31 commences on, and includes, the day the applicant is taken to have been notified of the decision: at [44] – [46].

   b.    The primary decision was emailed to you on 17 December 2020 meaning that 17 December 2020 was the date on which you are taken to have been notified. In accordance with DZAFH, the last day for lodging the application for review was 13 January 2021. As the application was not received until 20 January 2021, it appears to be out of time.”

8. The Court finds that the Tribunal did no err when it found that it did not have jurisdiction to review the decision of the delegate by reason of the fact that the application for review was made out of time. The Court further finds that the Tribunal did not err when it found that the Tribunal had no power to extend the time for the making of a valid application for review of the delegate’s decision.

9. The grounds of review are in each respect without merit, and would only be arguable if the Tribunal relevantly had jurisdiction to hear and determine the applicants’ application for review. The Tribunal was only required to give notice to an applicant of a Tribunal hearing in respect of a valid application for review made to it. The Tribunal did not err in declining to exercise jurisdiction.

10. No jurisdictional error has been established on the part of the Tribunal.

11. The Originating Application for Review is without merit and is dismissed.

12. The Court will hear the parties as to costs.  

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate: AO

Dated:       6 October 2022

            Migration Regulation 1994 (Cth) (the Regulations).