DLW17 v Minister for Immigration

The applicant, who arrived in Australia on 30 October 2016, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT). The applicant had applied for a Protection Visa, which was refused by a delegate on 14 March 2017. A copy of this decision was sent to the email address the applicant had provided to the Department. The applicant subsequently applied to the AAT for a review of the delegate's decision on 11 April 2017. The AAT, on 30 May 2017, wrote to the applicant indicating that his application appeared to be made out of time and invited him to comment, but received no response. The applicant, unrepresented and with the assistance of an interpreter, relied on the grounds of his initiating application, which asserted that the AAT was wrong about jurisdiction, that he should have had a fair chance, and that the AAT was not fair as he did not have a hearing.

The Federal Circuit Court was required to determine whether the applicant's grounds of review disclosed an arguable case for relief. Specifically, the court needed to consider whether the AAT had erred in its assessment of the timeliness of the applicant's review application and whether the applicant had been afforded procedural fairness. The applicant's submissions focused on the assertion that his application was only a day late and that the Tribunal should have exercised leniency.

Emmett J found that the applicant's grounds of review were bare assertions that did not disclose any error capable of review by the Court. The Court noted that section 66(1) of the Migration Act 1958 (Cth) requires notification of a decision in the prescribed way. Section 412 of the Act mandates that an application for review must be filed within the prescribed period, which is 28 days from the date of notification, as per regulation 4.31(2) of the Migration Regulations 1994 (Cth). Furthermore, section 494B(5) of the Act permits the Minister to send documents by email to an address provided by the applicant for that purpose. The applicant had provided an email address for communication with the Department, and the delegate's decision was sent to this address. The applicant's complaints misunderstood this legislative framework, and his assertion of being only a day late did not address the fundamental requirement of filing within the prescribed 28-day period.

The Court dismissed the application, finding that there was no arguable case for the relief claimed.