Epi17 v Minister for Immigration

[2018] FCCA 3661

FEDERAL CIRCUIT COURT OF AUSTRALIA

EPI17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3661

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Permanent Protection (XA 866) visa – where the application for review was filed out of time – whether the applicant was notified in accordance with the statutory regime – whether the Tribunal complied with the requirements of procedural fairness – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Applicant: EPI17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3190 of 2017

Judgment of: Judge Street

Hearing date: 11 December 2018

Date of Last Submission: 11 December 2018

Delivered at: Sydney

Delivered on: 11 December 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr J Pinder
Minter Ellison

ORDERS

1. The application is dismissed.

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

DATE OF ORDER: 11 December 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3190 of 2017

EPI17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 21 September 2017 holding that the Tribunal did not have jurisdiction in respect of a decision of the delegate made on 21 October 2016 refusing to grant the applicant a Permanent Protection (XA 866) visa.

2. The applicant is a citizen of China and arrived in Australia on 7 June 2014 on a subclass 573 (Higher Education Sector) visa. The applicant lodged the application for protection on 1 February 2016. The delegate found the applicant did not meet the criteria for the grant of the protection visa.

3. On 21 October 2016, the delegate wrote to the applicant notifying the applicant of the decision and the notification was sent to the address being the last known address given by the applicant to the Department at the interview that occurred between the delegate and the applicant. A copy of that extract of the interview has been tendered into evidence identifying the same address as identified on the letter of notification sent to the applicant’s address.

4. The applicant applied for review on 29 November 2016. The Tribunal wrote to the applicant on 27 June 2017 identifying that the application appeared to have been lodged outside the time period required, being 28 days, and that the notification was one posted to the applicant and, accordingly, the applicant was taken to have been notified under the statutory regime on 1 November 2016, and the application for review was not lodged until 29 November 2016, one day outside the time period required under the legislation.

5. The applicant responded to the notification and contended in that regard that the decision was wrong and the Department had given him misleading information. The Tribunal referred to the communication sent to the applicant and the applicant’s response. The Tribunal found the applicant had been sent the notification to his last known address and that it was, accordingly, deemed to have been received on 1 November 2017.

6. The Tribunal referred to the statutory provisions and found the applicant had to make the application for review ending on 28 November 2016. The Tribunal found the application was not lodged until 29 November 2016. The Tribunal referred to the mandatory period identified in respect of the requirement for a valid application for review and found that the application was not made in accordance with the mandatory requirement and that the Tribunal had no jurisdiction.

Before this Court

1. These proceedings were commenced on 16 October 2017. On 20 November 2017, a Registrar of the Court 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 the nature of the hearing and the applicant confirmed he understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant acknowledged that it was his fault but said that he had notified the Department. It is apparent from the Court file that the review application by the applicant occurred the day after the time period expired in respect of the requirements for review. No earlier notification of a change of address had been given. The Tribunal had no power to extend time or to determine the matter on compassionate or discretionary grounds.

4. On the face of the material before the Court, the Tribunal complied with its requirements of procedural fairness by giving the applicant an opportunity to respond to the issue of whether it had jurisdiction. The applicant’s disagreement with the Tribunal’s decision does not identify any jurisdictional error. Nothing said by the applicant identified any jurisdictional error.

The grounds

1. The grounds of the application are as follows:

   Tribunal made Jurisdictional errors in my case.

   1. Tribunal does not treat my case fairly.

   Immigration office sent my refusal decision to wrong place. Although the Tribunal was aware that the Minister may have made an error in the notification of the primary decision, the Tribunal did not consider this issue.

   2. Tribunal avoided considering my concern that the Minister gave wrong information on the Vevo regarding the expiration date of my visa, which should be consistent with expiration date for lodging review application. Such wrong information caused my delay in lodging review application.

Ground 1

1. Contrary to the contention advanced in paragraph 1, the Tribunal correctly identified that the applicant had been notified in accordance with the statutory regime and found it did not have jurisdiction. There is no apparent error in the reasoning of the Tribunal in respect of the notification given to the applicant and the review application being outside the mandatory time period. The assertion that the applicant’s case was not treated fairly does not identify any relevant error. The Tribunal complied with the requirements of procedural fairness in determining that it did not have jurisdiction as identified above.

2. The proposition that the notification was sent to the wrong place is inconsistent with the address provided by the applicant to the delegate. There is no substance in the contention that there was an error in the notification made by the Department. The applicant’s acknowledgement it was his fault is actually correct. No jurisdictional error arises by reason of ground 1.

Ground 2

1. In relation to ground 2, the assertion in respect of there being wrong information provided is not wrong information that emanated from the Department or the Minister. On the face of the material before the Court, the delegate correctly identified the address from the information provided by the applicant and the notification by the Department of the decision was in accordance with the statutory regime. The assertion of wrong information causing the applicant delay is incorrect.

2. It is apparent from the history recited above that the applicant did, in fact, notify the Department of a change in address but only after the time period had expired for the application for review. No jurisdictional error is made out by ground 2.

Conclusion

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

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  20 February 2019