DWM20 v Minister for Immigration - [2020] FCCA 2950

FEDERAL CIRCUIT COURT OF AUSTRALIA

DWM20 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 2950

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – Tribunal finding it lacked jurisdiction due to late lodgement of review application – applicant properly notified of delegate’s decision – review in fact lodged late – no arguable case of jurisdictional error.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), ss.24Z, 25, 29

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.66, 411, 412, 476, 494C

Migration Regulations 1994 (Cth)

Cases cited:

ALN19 v Minister for Home Affairs [2019] FCCA 3726

BAQ18 v Minister For Home Affairs [2018] FCCA 1900

Beni v Minister for Immigration (2018) 267 FCR 15

Calimoso v Minister for Immigration (2016) 70 AAR 503

DFQ17 v Minister for Immigration (2019) 270 FCR 492

EHF17 v Minister for Immigration [2019] FCA 168

Koro v Minister For Home Affairs [2018] FCCA 3106

Minister for Immigration v DZU16 (2018) 253 FCR 526

NBKT v Minister for Immigration (2006) 156 FCR 419; [2006] FCAFC 195

Serroukh v Minister for Immigration [2017] FCCA 3241

SZEYK v Minister for Immigration [2008] FCA 1940

Applicant:

DWM20

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1993 of 2020

Judgment of:

Judge Driver

Hearing date:

29 October 2020

Delivered at:

Sydney

Delivered on:

29 October 2020

REPRESENTATION

The Applicant appeared in person by telephone

Solicitors for the Respondents:

Mr S Valliappan of Minter Ellison

INTERLOCUTORY ORDERS

Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1993 of 2020

DWM20

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 10 August 2020. The Tribunal found that it did not have jurisdiction in the matter. That was because the applicant’s review application to the Tribunal had been lodged two days late.
Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 21 October 2020, which I adopt.
The applicant is a citizen of Tonga who arrived in Australia on 23 August 2017 as the holder of a visitor (Class FA) (subclass 600).[1]
[1] Court Book (CB) 39 and 161
On 7 April 2020, the applicant was detained in Villawood Immigration Detention Centre (Villawood).[2]
[2] CB 42
On 23 April 2020, the applicant lodged an application for a protection visa.[3] On 14 May 2020, a delegate of the Minister (delegate) made a decision to refuse to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 2950
Decision Date: 29 October 2020

CaseChat Overview and Summary

The applicant, DWM20, sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT). The AAT had found that it lacked jurisdiction to consider the applicant's review application because it had been lodged outside the prescribed time limits. The applicant contended that the AAT had erred in law by failing to find that it had jurisdiction. The matter came before Judge Driver of the Federal Circuit Court of Australia.

The central legal issue before the Court was whether the AAT had made a jurisdictional error by concluding it lacked jurisdiction to hear the applicant's review application due to its late lodgement. This required the Court to determine if the applicant had been properly notified of the delegate's decision and whether the review application was indeed lodged late, thereby precluding the AAT from exercising its review powers.

Judge Driver found that the applicant had been properly notified of the delegate's decision. The Court accepted that the review application had been lodged after the statutory time limit had expired. Consequently, the AAT correctly determined that it did not have jurisdiction to entertain the application. There was no arguable case of jurisdictional error on the part of the Tribunal.

The application was dismissed. The applicant was ordered to pay the first respondent's costs and disbursements in the sum of $3,737.

Orders

Orders of the court

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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