DQC18 v Minister for Home Affairs

[2019] FCCA 1113

FEDERAL CIRCUIT COURT OF AUSTRALIA

DQC18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1113

Catchwords:
MIGRATION – Application for review filed out of time – finding by tribunal that it lacked jurisdiction – no error established – application dismissed.

Legislation:

Migration Regulations 1994 (Cth), r.4.31(2)

Cases cited:

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

Applicant: DQC18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 704 of 2018

Judgment of: Judge Egan

Hearing date: 11 April 2019

Date of Last Submission: 11 April 2019

Delivered at: Brisbane

Delivered on: 11 April 2019

REPRESENTATION

Applicant: In Person

Solicitors for the First Respondent: Mr Gardener (MinterEllison)

IT IS ORDERED THAT:

1. The application for review filed on 9 July 2018 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 704 of 2018

DQC18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Taiwan.  On 8 September 2017, the applicant applied for a protection (class XA) 866 visa.  That application appears at court book page 8.  On that page, there appears an email address for the receipt of correspondence. That email address relevantly was: “[email protected]”.

2. On 11 April 2018, a delegate of the Minister refused to grant the applicant a protection visa.  On that day, the department sent a copy of the delegate’s decision to the applicant by email to the said email address referred to on page 8 of the court book.  Reliance by the first respondent, in that regard is placed upon the affidavit of Kate Mann filed on 14 March 2019, by which an annexure to that affidavit confirmed that an email had relevantly been sent notifying the applicant of the refusal of his visa application.  Annexure KEM1 to the affidavit of Ms Mann confirms that that was the case.

3. On 14 May 2018, the applicant sought review of the delegate’s decision before the Tribunal.

4. By letter dated 1 June 2018 sent to the applicant by email, the applicant was invited to make any comments to the Tribunal about whether a valid application had been made. A response was sought by 15 June 2018.

5. On 14 June 2018, by email from the applicant’s said email address, the applicant provided a written response to that request.  The applicant claimed that he had never received the notification letter by email or by post.  He said that he hoped the Tribunal could investigate the matter so that he would not lose his rights.

6. On 19 June 2018, the Tribunal found that it did not have jurisdiction to review the delegate’s decision.  At [4] of its reasons, the Tribunal noted that the applicant was duly notified of the refusal decision, finding that the applicant was taken to have been notified of the decision on 11 April 2018, the day that the notification email was sent to the applicant.  At [5] of its reasons, the Tribunal noted that the applicant was required to make application for review of any such decision within 28 days of deemed notice of such decision being received by him pursuant to the provisions of r. 4.31(2) of the Migration Regulations 1994 (Cth) (‘the Regulations’). The relevant period for the filing of an application for review was noted as having ended on 8 May 2018.

7. At [7] of its reasons, the Tribunal noted that in his application for review form, the applicant had attached the delegate’s decision, which act indicated that he had, indeed, received the original delegate’s decision.

8. In those circumstances, including the applicant’s response to the Tribunal letter regarding the jurisdictional issue, the Tribunal found that it was satisfied that the applicant had been notified of the decision on 11 April 2018 by letter dispatched by email to the email address nominated by the applicant. 

9. At [8] of its reasons, it was noted by the Tribunal that the application for review had not been received within time and that the Tribunal had no jurisdiction to review the delegate’s decision. 

10. It cannot be said that no other rational or logical decision-maker could not have made the same decision as the Tribunal.  As was said by Crennan and Bell JJ in the Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]:

    “130. In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.  The same applies in the case of an opinion that a mandated state of satisfaction has not been reached.  Not every lapse in logic will give rise to jurisdictional error.  A court should be slow, although not unwilling, to interfere in an appropriate case.”

11. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification as such respective concepts were considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] per Hayne, Kiefel and Crennan JJ where it was said:

    “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

    …

    [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

12. No jurisdictional error has been demonstrated on the part of the Tribunal.

13. The application for review is without merit and is dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 29 April 2019