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

1. The application filed 25 September 2017 be dismissed.

2. 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

1. 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.

2. 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

1. 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.

2. 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 notified of this decision, and ends at the end of 28 days. Please note that this review period is prescribed in law and an application for merits review may not be accepted after that date.

   [3] Ibid 57 – 61.

3. By reason of s 494C(5) of the Act, the Applicant was deemed to have been notified of the delegate's decision on 27 June 2017, being the day on which the documents transmitted by email.

4. The Applicant lodged an application for review with the Tribunal on

   
   

   30 July 2017.[4]

   [4] Ibid 76 – 77.

5. By a letter dated 7 August 2017, sent to the Applicant via email and post, the Tribunal invited the Applicant to comment on its preliminary view that the application for review may not be valid because it was not lodged within the prescribed time frame. The invitation noted that the last day for filing the application for review was 24 July 2017.

6. On 20 August 2017 the Applicant responded to the invitation to comment[5] The Tribunal considered this response at [5] of its decision to affirm the decision of the delegate.[6]

   [5] Ibid 82.

   [6] Ibid 89.

7. The Tribunal noted that the Applicant considered that the final day she could apply for review would be the date of expiry of her bridging visa (1 August 2017). The Tribunal noted that the Applicant considered that the Department should have given her the exact date of the last day to apply for review because it was difficult to understand instructions as her English was not good.[7]

   [7] Ibid [5].

8. The Tribunal considered the Applicant's response, but found that the Applicant was taken to have been notified of the decision on

   
   

   27 June 2017 and that the prescribed period to apply for review ended on 24 July 2017.[8]

   [8] Ibid [6].

Grounds of review

1. The Applicant raised seven ground of review, extracted exactly below:

   1.The Application for Protection Visa was valid because the Applicant wasn't prevented by Section 48A of the Migration Act 1958, from lodging a Protection Visa Application. But it was refused by the delegate and missed the opportunity to lodge the Review within 35 days given by department of border protection. The Applicant in his Application relies on the following Grounds: The decision dated 22 August 2017 of the tribunal, asserting the invalidity of the review application filed, and tribunal has made "The Tribunal does not have jurisdiction in this Matter." Tribunal made a jurisdictional error by failing to exercise jurisdiction as tribunal did not see the exceptional circumstances beyond her control in lodging review application out of the time frame.

   2.Applicant has been married to lawful non-citizen […] of Australia, both have threat in Malaysia with present government. Both belongs to Christian religion. In this situation applicant wishes to apply for protection visa application. The Application would not be invalid because the Applicant is not prevented by Section 48A of the Migration Act 1958, from lodging such application. That is reason applicant has explained to Tribunal her exceptional circumstances but circumstances haven't been examined.

   3.As at time of lodgement, the Applicant never knew or understood the time frame to lodge the review application at tribunal but applicant has complementary claims deemed to exist by the Department. So that Federal circuit court may have jurisdiction in this matter if Tribunal doesn't have jurisdiction.

   4.Applicant has an opinion it may be substantive right seek Judicial Review at Federal Circuit court, where justice could deal this matter with in accordance with the law applicable under the Migration Act in delivering the Natural Justice.

   5.The Immigration did not accept that the applicant was a credible witness and did not accept that either the applicant or her family suffered the harm or difficulties in her country that she claims for the reasons that she claims, which would lead her to leave Malaysia and why she fears return. And further she has lost her opportunity to get these claims reviewed at Tribunal. So she hopes the court will do the natural justice in this matter.

   6.The Tribunal has the power to rectify administrative error that may contaminate a primary decision. However, due to my late submission, such power has not been utilized with mandatory legislative procedures which must be implemented in her situation. By determining the question of validity this has a direct bearing on the issue as to the validity of the Section 48B prohibition (Migration Act) relating to "repeat protection visa applications". So that Judicial Review is necessary for her.

   7.Also she believes that Immigration officer has taken the decision has a jurisdictional error by failing to exercise jurisdiction.

Consideration

1. The first ground asserts that the application for the protection visa was valid because the Applicant was not prevented by s.48A the Act from lodging a protection visa application. Section 48A provides:

   (1)Subject to section 48B, a non-citizen who, while in the migration zone, has made:

   (a)an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or

   (b)applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined);

   may not make a further application for a protection visa, or have a further application for a protection visa made on his or her behalf, while the non-citizen is in the migration zone.

2. The operation of s 48A is not relevant to the issues in this matter. I accept the submission from the First Respondent that the time limits imposed by the Act are stringent and filing an application with the Tribunal within the time limit is a prerequisite to the existence of the Tribunal's jurisdiction.

3. The balance of the grounds of application are misconceived or a challenge to the decision of the delegate in the sense that the Applicant is seeking merits review. The Applicant seeks that the Court make its own findings that there were compelling circumstances explaining the failure to lodge the application on time and the credibility of her protection claims. Inviting the Court to substitute its own factual findings for those of the Tribunal constitutes an impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6. Insofar as the Applicant asks the Court to review a decision of the delegate, it is unable to under s 476(2)(a) of the Act. The Court’s jurisdiction in this case is limited to reviewing the conduct of the Tribunal in making its decision that it did not have jurisdiction to review the decision of the delegate.

4. There is no error evident in the manner in which the Tribunal determined the matter and the Applicant has not demonstrated that there are any arguable grounds advanced for the relief claimed. Accordingly the Court orders that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules2001 (Cth).

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate: 

Date:  14 November 2018