DZE17 v Minister for Immigration

[2018] FCCA 430

FEDERAL CIRCUIT COURT OF AUSTRALIA

DZE17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 430

Catchwords:
MIGRATION – Administrative Appeals Tribunal – the Tribunal found the applicant had been notified of the delegate’s decision by email sent to him on 13 February 2017 – the Tribunal did not have jurisdiction to hear the matter as the application was filed outside the 28 day period – the Tribunal complied with the requirements of procedural fairness by notifying the applicant of the jurisdictional error issue and giving the applicant an opportunity to respond – the Tribunal complied with its statutory requirements in determining that it had no jurisdiction in the present matter – no jurisdictional error identified – application dismissed.

Legislation:

Federal Circuit Court Rules 2001, r 44.12

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

Migration Regulations 1994, 4.31(2)

Applicant: DZE17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2766 of 2017

Judgment of: Judge Street

Hearing date: 26 February 2018

Date of Last Submission: 26 February 2018

Delivered at: Sydney

Delivered on: 26 February 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms K Underwood
MinterEllison

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2766 of 2017

DZE17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 1 September 2017 holding that the Tribunal did not have jurisdiction to review the decision of the delegate made on 10 February 2017. The application for review was lodged with the Tribunal on 23 June 2017.

2. The decision of the delegate was found by the Tribunal to have been notified to the applicant at the applicant’s address provided on the visa application on 13 February 2017. The Tribunal found it was sent to the email address identified in the application provided by the applicant.  Relevantly, question 40 on the applicant’s application asked the applicant:

   Do you have an email address?

3. Question 41 on the applicant’s application asked the applicant:

   Do you agree to the department communicating with you by fax, email, or other electronic means?

4. The applicant ticked yes and filled in his email address. It was that email address to which the notification of the decision was sent on 13 February 2017.

5. The Tribunal identified the requirements under the Act that the application for review had to be made within 28 days pursuant to reg 4.31(2) of the Migration Regulations 1994 (“the Regulations”). The Tribunal identified sending the applicant a letter on 21 July 2017 giving the applicant an opportunity to comment on the validity of the application. The Tribunal noted that it received a response on 25 July 2017 saying that he had found the notification in his junk mail folder, that it was too late and that he would still like a chance.

6. The Tribunal correctly identified however, that it has no discretion in relation to the requirement for the lodgement of the application for review within the 28 day period. It was in those circumstances the Tribunal found that the applicant had been taken to be notified on 13 February 2017 pursuant to s 494C of the Act. Accordingly, the application had not been made within the prescribed period and the Tribunal found it had no jurisdiction.

Before this Court

1. These proceedings were commenced on 5 September 2017 and on 9 October 2017, a Registrar made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed. 

2. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in this regard, the Court was considering whether the Tribunal’s decision that it had no jurisdiction was unlawful or unfair. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further review. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs.

3. The Court explained that it would have identified the evidence, then give the applicant an opportunity to put submissions and provided the applicant put submissions, the Court would then call upon the solicitor for the first respondent to put submissions and then give the applicant an opportunity to put submissions in reply. The applicant confirmed that he understood the nature of the hearing as explained by the court.

4. The applicant confirmed that he had the submissions of the first respondent read to him. The Court explained to the applicant that those submissions explained why the first respondent submitted that the grounds in his application failed to make out any relevant jurisdictional error and why the first respondent submitted that the decision of the Tribunal was not unlawful or unfair.

5. When invited to put submissions, the applicant declined to do so. The Court reminded the applicant that unless the applicant put submissions as to why the Tribunal’s decision was unlawful or unfair or in support of the grounds in his application, the Court would not call upon the solicitor for the first respondent. The applicant indicated that he did not wish to put submissions. 

6. The grounds in the application are as follows:

   1, I disagree with DIBP and AAT's decision. They did not well consider that I have provided with the department with correct email address for all their correspondence.

   2, I never received their final decision in my email in box, however DIBP send me their decision into my junk mail box which l could not open it.

   3. AAT did not well consider and verify the mistake from DIBP.

   1, I am a Taiwan citizen and applied for protection due to fears of being persecuted by the government. I cannot return to my home country. If I am forced to leave, I will be in danger.

   2, AAT did not give good consideration for my case, AAT should well check it and I am totally a victim of this incident.

   3, It is unfair not to accept my review application. I need protection from Australian government.

The Court’s reasoning

Paragraph 1 of the orders sought

1. In relation to paragraph 1 of the orders sought, the disagreement with the Tribunal’s decision does not identify any jurisdictional error. The Tribunal did not have jurisdiction because of the circumstances in which the Tribunal found the applicant had been notified of the delegate’s decision by email sent to him on 13 February 2017. This meant the applicant’s application had been lodged outside the 28 day period and therefore the Tribunal had no jurisdiction.

2. The Tribunal had no power to consider the merits of the application. The disagreement with the delegate’s decision does not enliven any jurisdiction before this Court. Paragraph 1 of the orders sought fails to identify any jurisdictional error. 

Paragraph 2 of the orders sought

1. In relation to paragraph 2 of the orders sought, the applicant seeks to take issue with the notification of the decision by email.  Evidence has been adduced before this Court identifying the sending of the email to the applicant on 13 February 2017. The email address is the same email address as identified in the application in the questions referred to in that application identified above.

2. I am satisfied on the evidence, that the applicant was notified in accordance with the statutory regime in respect of the email address provided by the applicant to the Tribunal. The applicant’s acknowledgement that it was found in his junk mail contradicts his assertion that he never received the email. Paragraph 2 of the orders sought fails to make out any jurisdictional error. 

Paragraph 3 of the orders sought

1. In relation to paragraph 3 of the orders sought, the proposition that the Tribunal did not consider and verify the mistake assumes that there was a mistake made by the delegate in the sending of the decision. There is no apparent mistake.

2. On the face of the Tribunal’s findings, the Tribunal was correct to hold that the applicant was notified on 13 February 2017 by the sending of the email to the applicant. The Tribunal had no discretion to exercise in relation to the criteria for the lodging of the application within the 28 day period. No jurisdictional error is made out by paragraph 3 of the orders sought.

Paragraph 1 of the grounds of the application

1. In relation to paragraph 1 of the grounds of the application, the applicant’s danger and his reference to having applied for protection do not enliven any power for the Tribunal to find that it had jurisdiction.

2. It was a mandatory requirement that the application for review be lodged within the identified period of 28 days. The applicant did not do so and was notified, as was correctly found by the Tribunal on 13 February 2017, by email of the decision of the delegate. 

3. The applicant’s alleged fear and/or alleged danger do not enliven any jurisdiction before this Court to interfere with the decision of the Tribunal that it had no jurisdiction.  Paragraph 1 of the grounds of the application fails to make out any jurisdictional error.

Paragraph 2 of the grounds of the application

1. In relation to paragraph 2 of the grounds of the application, the Tribunal was required to be satisfied that it had jurisdiction before it could embark upon the consideration of the merits of the application. 

2. In the present case, the Tribunal was correct to find that it had no jurisdiction. The Tribunal was not required in those circumstances to give further consideration, and in fact, had no power to give further consideration to the merits of the application. Paragraph 2 of the grounds of the application fails to make out any jurisdictional error.

Paragraph 3 of the grounds of the application

1. In relation to paragraph 3 of the grounds of the application, this in substance reflects a disagreement with the legislative regime in respect to the 28 day period. The Tribunal was correct in holding it had no jurisdiction.

2. On the face of the material before the Court, the Tribunal complied with its statutory requirements in determining that it had no jurisdiction in the present matter. Further, the Tribunal complied with the requirements of procedural fairness by notifying the applicant of the jurisdictional error issue and giving the applicant an opportunity to respond to the same. The applicant’s response did not identify any basis upon which the Tribunal could find that there was jurisdiction.  No jurisdictional error is made out by paragraph 3 of the grounds of the application.

The application

1. This is an application which on its face was doomed to failure. It should have been the subject of an application for summary dismissal and/or for a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001.

2. These proceedings are one in respect of which the applicant had on the face of the decision of the Tribunal no real prospect of success. On the face of the material before the Court, this application was vexatious and should have been the subject of an application in a case for an earlier hearing. 

3. As the application fails to make out any jurisdictional error, the application is dismissed. 

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 1 March 2018