EZO17 v Minister for Immigration
[2018] FCCA 1258
•17 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EZO17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1258 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – refusal of a protection visa – citizen of Malaysia – whether application to Tribunal made out of time – whether Tribunal had jurisdiction to hear application – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.46, 66, 412, 414, 476, 494B, 494C Migration Regulations 1994 (Cth), reg.2.16 |
| Cases cited: EBE17 v Minister for Immigration & Border Protection [2018] FCCA 45 Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398; (1911) 17 ALR 285 NACG v Minister for Immigration & Multicultural Affairs [2002] FCAFC 173 Re Boulton; Ex parte Construction, Forestry, Mining and Energy Union (1998) 85 IR 468; (1998) 73 ALJR 129 SZULH v Minister for Immigration & Border Protection [2015] FCA 835 |
| Applicant: | EZO17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 613 of 2017 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 17 May 2018 |
| Date of Last Submission: | 17 May 2018 |
| Delivered at: | Perth |
| Delivered on: | 17 May 2018 |
REPRESENTATION
| Applicant: | No appearance |
| Counsel for the First Respondent: | Ms K La |
| For the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
That the applicant pay the first respondent’s costs in the sum of $7328 by 17 June 2018.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 613 of 2017
| EZO17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(delivered ex tempore and later edited)
Introduction
By way of an application for judicial review (“Judicial Review Application”) filed on 7 November 2017 the applicant seeks review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively), pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”). The Tribunal Decision dated 10 October 2017 found that the Tribunal had no jurisdiction to consider the application for review of a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) whereby the Delegate’s Decision was to refuse the grant of a Class XA protection visa (“Protection Visa”) to the applicant. The Tribunal Decision appears in the Court Book (“CB”) at CB 146-147. The Court Book has been marked as Exhibit 1.
Background
The background to the Judicial Review Application is as follows:
a)the applicant is a Malaysian citizen who arrived in Australia on 22 January 2017 on a valid travel authority visa: CB 110;
b)on 18 April 2017 the applicant lodged an invalid Protection Visa application, the reason for the invalidity being his failure to provide personal identifiers as prescribed in s.46(2A) of the Migration Act: CB 61-62;
c)on 26 May 2017 the applicant again lodged a Protection Visa application and made the following claims:
i)near his house area there is a group of mafia called “Si Len” who are very bad, like to bully many people, and who have beaten the applicant many times and caused him to suffer as they come to the applicant’s house to disturb him and his family: CB 98;
ii)the Si Len are very violent and wanted to kill the applicant, and threatened his family, because he had made a police report, so if he returns they will continue to torture and beat him, sometimes this is with weapons, and they have damaged his house: CB 98-99; and
iii)as they are a large group of mafia people dare not help him, and he cannot be guaranteed that if he moves to another part of Malaysia he will be safe, further the police officers are very corrupt and they won’t help him, rather they release the Si Len after they receive money from them: CB 100;
d)on 16 August 2017 the Delegate’s Decision was to refuse to grant the applicant a Protection Visa, and by email sent the same day to the applicant’s nominated e-mail address he was advised of this refusal: CB 106-117;
e)on 15 September 2017 the applicant applied for review of the Delegate’s Decision by the Tribunal: CB 120-121;
f)on 20 September 2017 the applicant was sent a letter from the Tribunal inviting the applicant to comment on the validity of his application for review as it appeared he had not lodged the application within the prescribed time limit: CB 125-126; and
g)on 10 October 2017, the Tribunal Decision was that it did not have jurisdiction to review the Delegate’s Decision: CB 146-147.
Tribunal Decision
The Tribunal Decision is as follows:
1. This is an application for review of a decision of a delegate of the Minister for Immigration on 16 August 2017 to refuse to grant a protection visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 15 September 2017. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
2. As the applicant was not in immigration detention on the day the applicant was notified of the decision, an application for review of the decision had to be made within 28 days, commencing on that day: r.4.31(2) of the Migration Regulations 1994.
3. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 16 August 2017 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
4. The Tribunal wrote to the applicant expressing the initial view that his application may be out of time and seeking his response. He has not responded.
5. The Tribunal finds that the applicant is taken to have been notified of the decision on 16 August 2017: s.494C of the Act. Therefore the prescribed period to apply for review ended on 12 September 2017. As the application for review was not received by the Tribunal until 15 September 2017 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.
DECISION
6. The Tribunal does not have jurisdiction in this matter.
Judicial Review Application
The applicant’s Judicial Review Application contained the following grounds of review:
1. There exists jurisdictional error.
2. The tribunal wrongly applies the law. A 'real chance' is a substantial chance and it may be below a 50 percent chance.
3. The Tribunal does not properly consider my situation that there is real risk for me to suffer significant harm if I return to Malaysia
4. The tribunal treats my case unfairly
The applicant filed an affidavit affirmed on 7 November 2017 (“Applicant’s Affidavit”) in support of his Judicial Review Application whereby he stated the following:
1. I was been force by gangsters people to pay them protection fee
2. The malay people threatened me and treat me unfairly
3. My life are in danger and was harm by the gangsters for many times
On 8 December 2017, a Registrar of this Court made orders (“Registrar’s Orders”) whereby the applicant was entitled to file an amended Judicial Review Application, and any affidavit containing additional evidence relevant to the grounds of review, and written submissions. The applicant did not file any such documents before the matter was heard on 17 May 2018.
At hearing the applicant did not appear when the matter was first called in the courtroom, and did not appear after the matter was called three times outside the courtroom. In the circumstances, and given the nature of the issue to be determined the Court decided that it ought to proceed to hear the Judicial Review Application in the applicant’s absence.
The Minister filed written submissions in accordance with the Registrar’s Orders. Those submissions sought the application be dismissed with costs on the basis that none of the applicant’s grounds of review disclose jurisdictional error, because the applicant’s application for review of the Delegate’s Decision was not made within the prescribed time limit and that the Tribunal was therefore correct to find that it did not have jurisdiction to consider that application.
Consideration
Sections 412 and 414 of the Migration Act provide that:
412 Application for review of Part 7-reviewable decisions
(1) An application for review of a Part 7-reviewable decision must:
(a) be made in the approved form; and
(b) be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and
(c) be accompanied by the prescribed fee (if any).
(2) An application for review may only be made by the non-citizen who is the subject of the primary decision.
(3) An application for review may only be made by a non-citizen who is physically present in the migration zone when the application for review is made.
(4) Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of Part 7-reviewable decisions (which may be decisions that relate to non-citizens in a specified place).
414 Tribunal to review Part 7-reviewable decisions
(1) Subject to subsection (2), if a valid application is made under section 412 for review of a Part 7-reviewable decision, the Tribunal must review the decision.
(2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).
It is the first duty of every court and tribunal to determine whether or not it has jurisdiction: Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398; (1911) 17 ALR 285; CLR at 415 per Griffith CJ, 428 per Barton J and 454 per Isaacs J; Re Boulton; Ex parte Construction, Forestry, Mining and Energy Union (1998) 85 IR 468; (1998) 73 ALJR 129 at 133 per Kirby J, including in migration proceedings: KRJF v Minister for Immigration & Anor [2018] FCCA 150 at 14 per Judge Lucev.
The issue in these proceedings is whether the Tribunal was correct in determining it had no jurisdiction to review the Delegate’s Decision in circumstances where the applicant filed his review application with the Tribunal out of time.
It is a requirement for the applicant to make a valid application to enliven the Tribunal’s jurisdiction: Migration Act, s.414(1), and to do so the application must have been given to the Tribunal within the period prescribed, being a period not ending later than 28 days after notification of the Delegate’s Decision: Migration Act, s.412(1)(b).
The Minister was required to notify the applicant of the Delegate’s Decision: Migration Act, s.66, by one of the methods specified in s.494B of the Migration Act: Migration Regulations 1994 (Cth), reg.2.16(3); Migration Act, s.494B(1). An email sent to the last email address provided for the purposes of receiving documents is a specified method of notification: Migration Act, s.494B(5)(d). Pursuant to s.494C(5) of the Migration Act the applicant was deemed to have received the notification of refusal and the Delegate’s Decision at the end of the day it was transmitted, that being 16 August 2017.
The Minister properly notified the applicant of the Delegate’s Decision at the applicant’s nominated email address, and the Court further notes the applicant had expressly approved the sending of correspondence by the Minister to the applicant’s nominated email address: CB 78, 85 and 121. The Court notes that the same email address was supplied by the applicant to the Tribunal in the application to the Tribunal as was provided to this Court in the Judicial Review Application.
The 28 day period within which to apply to the Tribunal for merits review of the Delegate’s Decision ended on 12 September 2017. The review application was lodged with the Tribunal on 15 September 2017. The Tribunal has no power to extend the time within which to make a review application and this Court cannot compel the Tribunal to undertake a task it has no jurisdiction to do: Rana v Minister of Immigration & Border Protection [2014] FCA 1233 at [3] per Wigney J; EBE17 v Minister for Immigration & Border Protection [2018] FCCA 45 (“EBE17”) at [22]-[26] per Judge Lucev (and the Federal Court judgments there cited).
To the extent the applicant may have claimed (had he appeared) that he did not receive the Delegate’s Decision, s.494C(5) of the Migration Act is a deeming provision strictly applied, so that notification in this case is held to have been received by the applicant on 16 August 2017: NACG v Minister for Immigration & Multicultural Affairs [2002] FCAFC 173 at [8] per Stone J; EBE17 at [22(d)] per Judge Lucev. Because the Minister has complied with s.494C(5) of the Migration Act, the applicant, whether justifiably or not, cannot claim that because he did not actually receive the notification the Tribunal was wrong to find it had no jurisdiction: EBE17 at [22]-[24] per Judge Lucev. It is immaterial whether the failure to apply in the requisite time period was or was not the applicant’s fault: the Tribunal cannot review the Delegate’s Decision as mandated by statute: EBE17 at [23]-[24] per Judge Lucev.
The applicant simply did not file the review application with the Tribunal within the statutorily mandated time period, and the Tribunal was correct in determining it did not have jurisdiction: SZULH v Minister for Immigration & Border Protection [2015] FCA 835 at [17] per Robertson J. It follows that there was no jurisdictional error in the Tribunal Decision. The Judicial Review Application must be dismissed on that basis.
It is unnecessary for the Court to consider the actual grounds of review in the Judicial Review Application. Those grounds (which are unparticularised “template” grounds often appearing in judicial review applications by self-represented litigants in migration proceedings) do not engage with, and are not relevant to, what was actually decided by the Tribunal, namely that it lacked jurisdiction to hear the applicant’s application for review of the Delegate’s Decision.
Conclusion and Orders
The Tribunal was correct in determining it did not have jurisdiction to hear the applicant’s application for review of the Delegate’s Decision. There was, therefore, no jurisdictional error in the Tribunal Decision. The Judicial Review Application must be dismissed on that basis. There will be an order accordingly.
Costs must follow the event, and there will be a further order that the applicant pay the Minister’s costs in the sum of $7328 by 17 June 2018.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 17 May 2018
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