EJU21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 874
Federal Circuit and Family Court of Australia
(DIVISION 2)
EJU21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 874
File number: BRG 551 of 2021 Judgment of: JUDGE EGAN Date of judgment: 30 November 2022 Catchwords: MIGRATION – Where applicant filed an application for review of a decision of a delegate to the Administrative Appeals Tribunal out of time – where Tribunal had no jurisdiction to extend the time for the bringing of the application for review – where applicant was some 147 days out of time in filing an application for review of the adverse decision of the Tribunal in the Registry of this Court – where no jurisdictional error on the part of the Tribunal has been demonstrated – application dismissed. Legislation: Migration Act 1954 (Cth) s. 477(1)
Migration Regulations 1994 (Cth) Reg. 4.31(2)
Cases cited: DZAFH v Minister for Immigration and Border Protection [2017] FCA 984
SZJQC v Minister for Immigration and Citizenship & Anor [2008] HCASL 66
Division: Division 2 General Federal Law Number of paragraphs: 13 Date of last submission/s: 10 October 2022 Date of hearing: 10 October 2022 Place: Brisbane The Applicant: Self-represented litigant Solicitor for the First Respondent: Ms Tinlin of MinterEllison The Second Respondent: Submitting appearance save as to costs. ORDERS
BRG 551 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EJU21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE EGAN
DATE OF ORDER:
30 November 2022
THE COURT ORDERS THAT:
1.The application for an extension of time filed on 8 December 2021 be dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $3,930.00.
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
Judge Egan
Introduction
The applicant is a citizen of the People’s Republic of China who made application for a Protection Visa (Class XA) (Subclass 866) on 9 September 2018.
On 3 December 2020, a delegate of the Minister refused the visa application. Notice of the refusal of the visa application was duly sent on 3 December 2020 to the Applicant’s nominated email address for correspondence. [1]
[1] See annexure ATT – 1 to affidavit of Abby Tinlin filed on 23 September 2022.
It was relevantly a requirement pursuant to reg. 4.31(2) of the Migration Regulations 1994 (Cth) (the Regulations) that an application for review of a decision of a delegate was to be lodged within 28 days of notice of the adverse decision being given to them.
At a time well outside the relevant 28 day limitation period, the applicant lodged an application for review of the decision of the delegate with the Administrative Appeals Tribunal (the Tribunal) on 3 June 2021.
On 13 July 2021, the Tribunal determined that it did not have jurisdiction to hear the application for review made to it by the applicant because such application was made well out of time.
In SZJQC v Minister for Immigration and Citizenship & Anor [2008] HCASL 66, Kirby and Heydon JJ said at [2] – [4] as follows:
“[2] Notification of that decision was sent to the applicant's nominated postal address on 3 May 2006. The applicant is taken to have received the notification by 12 May 2006. However, the application to the Tribunal, dated 12 June 2006, was not received until 13 June 2006. This meant that the application for review was outside the 28 days’ time limit expressed in s 412(1)(b) of the Migration Act 1958 (Cth) and Regulation 4.31(2)(b) of the Migration Regulations 1994 (Cth). At the very latest, on the foregoing chronology, the 28 day period would have expired on 9 June 2006.
[3]There is no statutory power for the Tribunal, or anyone else, to extend the time limit, whatever the reasons for the default. The applicant has asserted that at all times he acted promptly by approaching a registered migration agent and instructing her to ensure the protection of his rights. He states that he trusted the registered migration agent to help him "competently, diligently and fairly"; that he was very disappointed that this had not occurred; that it had involved a breach of duty to him; and that he did now not trust any migration agent. He contended that, if correct, the unchangeable time limit would deprive him of substantive rights without any judicial consideration of the "substantial justice and the merits of the case" as s 420 of the Act ordinarily requires. He complains that the delay "is not my fault" and that he had been unaware of the "time limit of my right to appeal".
[4]Upon the assumption that the mandatory time limit in this instance is a valid law of the Commonwealth, no error is shown in the reasoning of the Federal Court and the Federal Magistrate. Without a challenge to the constitutional validity of the time limit, there is no prospect that the decisions below could be altered. The applicant does not specifically challenge the validity of the subject law. On that footing, there is no prospect that an appeal to this Court would enjoy any prospect of success. The application for special leave must therefore be refused.”
In DZAFH v Minister for Immigration and Border Protection [2017] FCA 984 at [5], Davies J said as follows:
“[5]The FCC was correct to hold that the seventh working day commencing on the day when the appellant received notification of the delegate’s decision was 18 November 2014 and that as an application was not lodged with the Tribunal within the requisite time, the Tribunal had no jurisdiction to review the delegate’s decision. It is well established that an application that is not given to the Tribunal within the requisite period prescribed by s 412(1)(b) of the Act and regulation 4.31 of the Migration Regulations is not valid and the Tribunal has no jurisdiction to review an application given out of time: the authority is SZULH v Minister for Immigration and Border Protection [2015] FCA 835 and the cases cited at [17].”
The Court finds that the Tribunal did not err in finding that it had no jurisdiction to hear and determine the applicant’s application which had been filed out of time.
Compounding the applicant’s problem was the failure by the applicant to file in this Court an application for review of the decision of the Tribunal within 35 days of notice of that decision being given to the applicant, as was required pursuant to the provisions of s. 477(1) of the Act. The application for review filed in the Registry of this Court was so filed some 147 days outside the 35 day time limit so prescribed.
The Court finds that there is no utility in extending the time for the filing of the application for review in this Court in circumstances where the applicant has no prospects of success in his substantive application. The Tribunal had no jurisdiction to hear the review application made to it.
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The application for extension of time made on behalf of the applicant is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 29 November 2022
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