Fahme v Minister for Immigration

[2018] FCCA 1180

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAHME v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1180

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Medical Treatment (Visitor) (Class UB) visa – whether the Tribunal was correct in its conclusion that it had no jurisdiction – application to the Tribunal lodged out of time – the Tribunal had no discretionary power to extend time on compassionate circumstances – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.347, 476, 494C

Migration Regulations 1994, reg 4.10

Applicant: ADNAN FAHME

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3655 of 2017

Judgment of: Judge Street

Hearing date: 10 May 2018

Date of Last Submission: 10 May 2018

Delivered at: Sydney

Delivered on: 10 May 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms A Lucchese
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3655 of 2017

ADNAN FAHME

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 Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 20 October 2017 finding the Tribunal did not have jurisdiction in respect of a decision of the delegate refusing to grant the applicant a Medical Treatment (Visitor) (Class UB) visa made on 22 August 2017. 

2. The applicant it is a citizen of Lebanon and applied for the visa on 11 August 2017.  The delegate found the applicant failed to meet the criteria for the grant of the visa. The application for the medical treatment visa provided an email address with a box ticked by the applicant in relation to receiving communications. On 22 August 2017, the delegate’s decision was sent to the email address identified in the application filed by the applicant.

The Tribunal

1. The applicant lodged an application for review on 13 September 2017.   On 5 October 2017, the Tribunal wrote to the applicant identifying its concern that the application was not a valid application because it had not been lodged within the relevant time limit. The Tribunal explained that the relevant time limit in the letter was 21 days from the date on which the applicant was taken to be notified. The Tribunal referred to the decision having been emailed to applicant and on that basis, the applicant was taken to have been notified on 22 August, and the last day for lodging an application was 12 September 2017.  The Tribunal noted that the application had not been lodged until 13 September 2017, which was outside the 21-day period.

2. The applicant in response to the invitation contended that there were compelling circumstances as to why he had lodged it outside the time period. The Tribunal in its reasons on 20 October 2017 correctly identified that the requirements for the lodgement of a valid application for review were identified in s 347(1)(b) of the Act and reg 4.10 of the Migration Regulations 1994, which require the application to be made within 21 days after notification of the decision. 

3. The Tribunal correctly identified that the applicant had been notified of the decision on 22 August 2017 in accordance with s 494C of the Act.  The Tribunal find that the prescribed period within which the application had to be lodged was 12 September 2017. The Tribunal found the application was not made until 13 September 2017, and accordingly found that it had no jurisdiction. The Tribunal also referred to the sending of a letter to the applicant inviting the applicant to comment on the invalidity, and referred to the applicant’s response. 

4. Compelling reasons are not a discretionary consideration that the Tribunal could take into account to extend the time. There was no discretion or compassionate criteria that the Tribunal could apply to extend time. The Tribunal’s decision that the application was not lodged within time, on the material before the Court, was correct.

Before this Court

1. These proceedings were commenced on 24 November 2017. On 21 December 2017, a Registrar made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions.

2. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision that it had no jurisdiction was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness.  The Court explained that in summary this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that it would take into account the ground in the applicant’s application in considering whether or not the Tribunal had committed a relevant legal error.

3. The Court referred to that ground in which the applicant contended that the Tribunal had misapplied the law. The Court explained that if satisfied the Tribunal’s decision was affected by relevant legal error, the decision would be set aside and sent back for further review.  The Court explained that if not satisfied the Tribunal’s decision was affected by relevant legal error the application would be dismissed with costs.

4. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court. 

5. From the bar table the applicant acknowledged that he had not made the application within the 21 day period. The applicant, however, contended that he was sick and that he wanted to undertake further treatment and that there had been errors made by the delegate. The Court explained to the applicant four times that it did not have power to decide the matter on compassionate grounds, and nor did the Tribunal. 

6. The Court explained to the applicant that the 21 day period was a mandatory criterion that had to be met.  The applicant had acknowledged that it was not met. The applicant’s personal circumstances and criticisms of the decision of the delegate, or desire for ongoing treatment, do not identify any error by the Tribunal in finding that it did not have jurisdiction. Nor do those matters engage any power in this Court to grant the applicant relief.  The Court does not have power to do so. 

7. The ground in the application is as follows:

   1. The Tribunal misapplied the law in concluding that the review application was lodged out of time.

   Particulars

   The Tribunal formed it is view and declared that it has no jurisdiction to review on the basis that the Department of Immigration and Border Protection's notification of refusal is a valid notification on the basis that it was notified to the applicant by email and thus calculated the prescribed period to lodge the review application as 21 days. It should be noted that the applicant noted in his application that all the correspondence should be directed to him and further provided his postal address. Though he mentioned that DIBP could send notification via fax or email but failed to mention the fax number or email. Since the applicant clearly did not provide any email address in the form whatsoever to send any correspondence to him via email, the refusal notification should have been sent to the nominated postal address in Australia. It is submitted that failure of the legal obligation of the DIBP to send the refusal notification to the nominated postal address makes the notification null and void. If it is sent to the nominated postal address in Australia, then the applicant would have got an additional 7 working days which would make the review application as a valid review application.

8. For the reasons earlier given, there was no misapplication of the law by the Tribunal. As the applicant himself acknowledged, the application was lodged out of time. The Tribunal had no discretionary power to extend time on compassionate circumstances. On the face of the material before the Court, the Tribunal was correct in its conclusion that it had no jurisdiction. Ground 1 fails to make out any jurisdictional error. Nothing said by the applicant from the bar table identified any jurisdictional error. 

Conclusion

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

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

Date: 7 June 2018