DZH21 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)

[2024] FedCFamC2G 403

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DZH21 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 403

File number(s):	BRG 501 of 2021
Judgment of:	JUDGE VASTA
Date of judgment:	14 March 2024
Catchwords:	MIGRATION – Review of Registrar decision – where application to Administrative Appeal Tribunal for review is out of time - where application for review of Registrar Decision is out of time and no application for extension made - where no arguable case for the relief sought was made out – extension refused – application dismissed
Legislation:	Migration Act 1958 (Cth)
Division:	Division 2 General Federal Law
Number of paragraphs:	15
Date of hearing:	14 March 2024
Counsel for the Applicant:	Applicant with the assistance of an interpreter
Solicitor for the First Respondent:	Spark Helmore
Solicitor for the Second Respondent:	Submitting appearance, save as to costs

ORDERS

BRG 501 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DZH21

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	14 MARCH 2024

THE COURT ORDERS THAT:

1.The application for extension of time is refused.

2.The application for review of the Registrars decision filed on 21 December 2023 is otherwise dismissed.

3.The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $700.

IT IS NOTED THAT:

A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 14 October 2021, the Administrative Appeals Tribunal, or AAT, made a decision that they did not have jurisdiction to deal with an application made by the applicant, DZH21.  On 8 November 2021, the applicant asked this Court to review that decision.  On 13 December 2023, a Registrar of this Court summarily dismissed the applicant's application. 

2. On 21 December 2023, the applicant asked for the decision of the Registrar to be reviewed by a judge.  I do note that, for there to be a valid application for a review of a Registrar's decision, the application has to be filed within seven days.  This application was lodged eight days after that decision was made.  The applicant has not asked for an extension of time, but given the way in which today's hearing has progressed, I have acted as if he had actually asked the Court to extend the time for him to be able to have the matter heard by a judge. 

3. There are three aspects to such an application.  The first is what reason was there for the application to be filed one day late.  The second is what prejudice is there to the Minister if the Court were to allow an extension.  The third is whether there is an arguable case made for the relief that is sought in the application.  I have not even inquired as to the first two of those aspects.  That is because this application really turns on whether there is an arguable case for the relief sought. 

4. The background of this matter is that the applicant is a citizen of India.  On 16 December 2019, the applicant applied for a protection visa saying that he feared harm if he were returned to India.  I do not have to go into the detail of why it was that he claimed that he would be harmed in India; it is sufficient for these purposes to understand that on 22 April 2021, the delegate of the Minister made a decision that the applicant should not be given a protection visa.  That same day, the applicant was notified of the decision by email.  This meant that the applicant was deemed to have been notified of the decision on the day that the email was sent. 

5. The applicant did have review rights to the AAT, but only if he made an application to the AAT within 28 days of being notified of the decision of the delegate.  This meant that he could only utilise his review rights before the AAT if he made his application before 19 May 2021. 

6. The legislation does not allow for any extension of time, or compassionate consideration, if a person does not file the application within time.  In other words, it does not matter why it is that the application was not filed within 28 days.  The legislation is very clear that the AAT has no jurisdiction unless the application is filed within 28 days.  The applicant did not file his application to the AAT until 11 August 2021.  This is almost three months after the deadline had passed.

7. When the matter came to the AAT, the AAT could see that they had no jurisdiction.  The AAT contacted the applicant and asked why it was that he claimed that his application was still a valid application.  On 9 September 2021, the applicant responded to the AAT.  The applicant said that he had moved to a remote area of Queensland where no internet was available.  He said the decision had only been sent to his email but not to his residential address.  He asked the AAT to accept his application as a valid one. 

8. The AAT noted that when the applicant made his application for a protection visa on 16 December 2019, he used a particular email address.  From that time on, the department used that email address to correspond with the applicant, and he corresponded with the department using that same email address. 

9. The AAT said that it was the responsibility of the applicant to keep the Department of Immigration apprised of effective contact details for communication with him.  The AAT noted that the Department of Immigration discharges its responsibility to applicants when it correctly uses the contact details that are provided by that applicant.  The AAT said that, because the application for review was not received by the Tribunal until 11 August 2021, it was not a valid application, and, therefore, the AAT had no jurisdiction to deal with his application.

10. In the application made to this Court, the applicant did not even recognise that the decision was made because of an invalid application.  The applicant could not identify any error, and for that reason, the Registrar summarily dismissed the application.

11. The applicant appeared before me today unrepresented but assisted by an interpreter.  I asked the applicant why it was that he could submit to the Court that the AAT committed a legal error when they decided that they did not have jurisdiction to deal with his matter.  The applicant conceded that there was no legal error, but he did explain that his mobile internet had dropped out and that he was not able to get an internet connection. 

12. He said that he was working on a farm at Warra, which is outside Dalby, which is about an hour from Toowoomba in Queensland.  He said that he worked hard on the farm and it was difficult from there to get into town to be able to recharge his SIM card.  He said when he was finally able to do that, he saw the email and he made his application to the AAT.  He explained that it became difficult then to have any face-to-face appointments with lawyers because of COVID restrictions, and soon after that, he began living in Gatton and there were flood issues in that town. 

13. I reiterated to the applicant what I had said to him at the beginning of the hearing, and that was that the legislation does not allow for any relaxation of the deadline for applications to the AAT. 

14. It seems to me that the AAT acted in the only way possible in accordance with the law and adjudged that they did not have jurisdiction.  Therefore, it seems to me that there is no arguable case that has been made out for the relief sought in the application for review. 

15. I refuse the application for extension of time and generally dismiss the application for review of the Registrar's decision.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Associate:

Dated:       8 May 2024