DLW17 v Minister for Immigration

[2017] FCCA 2450

FEDERAL CIRCUIT COURT OF AUSTRALIA

DLW17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2450

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.66, 412, 476, 494B, 494C
Migrations Regulations 1994 (Cth), reg.4.31
Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

Cases cited:
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264

Applicant: DLW17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2148 of 2017

Judgment of: Judge Emmett

Hearing date: 9 October 2017

Date of Last Submission: 9 October 2017

Delivered at: Sydney

Delivered on: 9 October 2017

REPRESENTATION

Applicant appeared in person with the assistance of a Mandarin interpreter

Solicitors for the Respondents: Mr Dominic Eberl
AGS

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2148 of 2017

DLW17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 19 June 2017, in which the Tribunal found that it had no jurisdiction to review the decision of a delegate of the first respondent (“the Delegate”) refusing the applicant a Protection (Subclass 866) visa.

2. On 3 August 2017, the applicant attended a directions hearing before a registrar of this Court and on that occasion was given leave to file and serve an amended application, any further evidence and submissions in support of his application. The applicant was also provided with the contact details of legal services providers and translating and interpreting services in documents headed in the applicant’s own language.

3. No further documents were filed by or on behalf of the applicant.

4. At the directions hearing, at the request of the first respondent, the matter was listed for today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), on the basis that the applicant’s application did not raise an arguable case for the relief sought.

5. Rule 44.12 of the Rules provides as follows:

   “(1)  At a hearing of an application for an order to show cause, the Court may:

   (a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

6. Relevantly, r.44.13 of the Rules provides:

   “(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

7. The first respondent, in written submissions, accurately summarised the background of the applicant’s claims as follows:

   “PART I BACKGROUND

   3. The applicant arrived in Australia on 30 October 2016. On 10 January 2017, the applicant applied for the PV (Court Book (CB) at 1). In his application, he provided an email address to the Department for the purpose of receiving correspondence from the Department of Immigration and Border Protection (the Department) (CB at 17). In response to the question 'Do you agree to the department communicating with you by fax, email, or other electronic means?' the applicant respondent 'Yes' and provided his email address (CB at 17).

   4. On 14 March 2017, the delegate refused to grant the applicant the PV. A copy of the delegate's decision was sent to the email address provided by the applicant (CB 41).

   5. On 11 April 2017, the applicant applied to the Tribunal for review of the delegate's decision.

   6. On 30 May 2017, the Tribunal sent a letter to the applicant, inviting him to comment on the validity of his application for review. The Tribunal stated that the applicant's application appeared to be made out of time (CB at 61). No response was received by the Tribunal.”

8. The applicant was unrepresented before the Court this morning, although had the assistance of an interpreter.

9. The applicant confirmed that he relied on the grounds of his initiating application. Those grounds are as follows:

   “1. AAT IS WRONG ABOUT JURISDICTION.

   2. I SHOULD HAVE A FAIR CHANCE FOR MY CASE

   3. AAT IS NOT FAIR REGARDING MY CASE. I DIDN’T HAVE MY HEARING.”

10. The grounds were interpreted for the applicant and he was invited to say whatever he wished in support.

11. Plainly those grounds make bare assertions that do not disclose any error capable of review by this Court.

12. In support of the grounds, the applicant said that he was only a day late and that the Tribunal should have been lenient.

13. The applicant’s complaints misunderstand the legislative framework under which the Tribunal was operating. 

14. Section 66(1) of the Act provides that:

    “When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.”

15. Pursuant to s.412 of the Act the Tribunal must consider an application that is filed within the prescribed period and is otherwise in accordance with that section.

16. Section 412(1)(b) of the Act states that the application must be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision. Regulation 4.31(2) of the Migrations Regulations 1994 (Cth) provides that the prescribed period is 28 days from the date of notification.

17. Section 494B(5) of the Act provides that the Minister may send a document by email if it is addressed to the email address provided to the Minister for the purposes of receiving documents. In his protection visa application lodged on 10 January 2017, the applicant identified an email address for the purposes of communicating with the Department of Immigration and Border Protection (“the Department”).

18. On 14 March 2017, the Department notified the applicant by sending to the applicant’s email address, a copy of the Delegate’s decision to refuse the applicant a protection visa. 

19. Pursuant to s.494C(5) of the Act, the applicant is deemed to have received an email sent in those circumstances at the end of the day on which the document is transmitted. That date is 14 March 2017.

20. The applicant’s application for review by the Tribunal was lodged on 11 April 2017. The 28 day period from and including 14 March 2017 ended on 10 April 2017.

21. In the circumstances, the application was lodged outside the 28-day time limit and therefore purportedly was not a valid application.

22. On 30 May 2017, the Tribunal wrote to the applicant informing him that it appeared that his application was filed out of time and inviting the applicant to comment by 13 June 2017 on whether a valid application had been made. The Tribunal noted there was no response received from the applicant. The Tribunal’s decision was ultimately made on 19 June 2017.

23. In the circumstances, the Tribunal’s decision that it had no jurisdiction is correct. In such circumstances, it was under no obligation to invite the applicant to appear before it.

24. To the extent that the applicant’s complaints suggest that the Tribunal was biased, such an allegation is serious and requires evidence.

25. It is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J).

26. There is nothing on the face of the Tribunal’s decision to suggest that the Tribunal approached its task other than with a mind open to persuasion. (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32] per Gleeson CJ, Gaudron and Gummow JJ; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115] per Allsop J, with whom Moore and Tamberlin JJ agreed).

27. As stated above, on 30 May 2017, the Tribunal invited the applicant to provide comment about the validity of his application. The applicant provided no response. The Tribunal then did not make its decision until 19 June 2017. In the circumstances, the applicant had ample time to put anything to the Tribunal that he wished to suggest that his application was valid.

28. The Tribunal did no more than apply the legislative regime in concluding that it had no jurisdiction.  It did so correctly.

29. In the circumstances, none of the applicant’s complaints would appear to be made out.

30. Whilst I make no final decision as to whether or not the Tribunal’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the Tribunal that is capable of establishing jurisdictional error and none is apparent on the face of the Tribunal’s decision record. The Tribunal referred to the relevant law in affirming the decision under review. 

31. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed.

32. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court commenced by way of application filed on 10 July 2017 should be dismissed pursuant to r.44.12(1)(a) of the Rules, with costs.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  17 October 2017