Edh17 v Minister for Immigration - [2018] FCCA 3287

FEDERAL CIRCUIT COURT OF AUSTRALIA

EDH17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 3287

Catchwords:
MIGRATION – Application for judicial review – Protection (Class XA) visa – application filed out of time – whether the Tribunal made a jurisdictional error – no error demonstrated – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Cases cited:

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6

Applicant:

EDH17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2069 of 2017

Judgment of:

Judge McNab

Hearing date:

1 November 2018

Date of Last Submission:

1 November 2018

Delivered at:

Melbourne

Delivered on:

14 November 2018

REPRESENTATION

The Applicant in person

Solicitors for the Respondents:

Mills Oakley (Ms K Evans)

ORDERS

The application filed 25 September 2017 be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2069 of 2017

EDH17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This matter comes before the Court by way of an application for judicial review, in order to show cause pursuant to s 476 of the Migration Act 1958 (‘the Act’) filed on 25 September 2017. The Applicant seeks review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 22 August 2017. The Tribunal found that it did not have jurisdiction to review a decision of the delegate of the First Respondent, dated 27 June 2017, because the review application was lodged outside the prescribed time period.
The First Respondent asserts that the application ought to be dismissed pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) on the grounds that the Applicant has not raised unarguable claim for the relief sought.

Background

On 27 June 2017, the delegate refused to grant the Applicant a Protection Visa (‘Visa’). The delegate was at the view that the country information did not support the Applicant's claims[1] and the delegate stated by way of summary of the evidence and material canvassed in the decision:
Overall, the information before me does not indicate that the applicant will be subject to societal or official discrimination amounting to serious harm on account of her race, political opinion, or any other reason. Based on the applicant’s lack of supporting evidence, delay in seeking protection and the country information outlined above, I do not find the applicant has a well-founded fear of being persecuted in Malaysia.[2]
[1] Court Book 69.
[2] Ibid.
Notification of the delegate’s decision to refuse the application was sent by a letter dated 27 June 2017 and via email to the Applicant’s nominated email address.[3] The refusal notification letter states that an application for merits review of a refusal decision must be given to the AAT within the prescribed time frame. This timeframe commences on the day on which the Applicant is taken to have been…

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: [2018] FCCA 3287
Decision Date: 14 November 2018

CaseChat Overview and Summary

The applicant, Edh17, sought judicial review of a decision by the Minister for Immigration. The dispute concerned an application for a Protection (Class XA) visa, which had been filed out of time. The matter was heard in the Federal Circuit and Family Court of Australia before Judge McNab.

The central legal issue before the Court was whether the Administrative Appeals Tribunal (the Tribunal) had made a jurisdictional error in its handling of the applicant's out-of-time visa application. Specifically, the Court was required to determine if the Tribunal's decision to proceed with the application, despite it being lodged after the prescribed time limit, constituted a failure to exercise its jurisdiction or an exercise of jurisdiction it did not possess.

Judge McNab found that no jurisdictional error had been demonstrated by the applicant. The Court's reasoning focused on the Tribunal's procedural steps and the applicant's failure to establish that the Tribunal had acted outside its legal powers or failed to perform a required duty. The principles applied revolved around the established legal tests for jurisdictional error in administrative law, requiring a clear demonstration of such error by the applicant.

The application for judicial review was accordingly dismissed.

Orders