FMK18 v Minister for Home Affairs
[2018] FCCA 3758
•17 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FMK18 v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 3758 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – Tribunal finding that it lacked jurisdiction due to late lodgement of the review application – refusal of an extension of time for a show cause application – the Tribunal had no discretion to extend the time limit on review applications. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.5H, 36, 477, 494C Migration Regulations 1994 (Cth) |
| Cases cited: Beni v Minister for Immigration [2018] FCAFC 228 Brown v Minister for Home Affairs [2018] FCA 1643 |
| Applicant: | FMK18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2926 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 17 December 2018 |
| Delivered at: | Sydney |
| Delivered on: | 17 December 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms S Given of HWL Ebsworth |
INTERLOCUTORY ORDERS
Pursuant to s.477(2) of the Migration Act 1958 (Cth), the application for an extension of time is refused.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,737, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2926 of 2018
| FMK18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Introduction
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 21 May 2018. The Tribunal found that it did not have jurisdiction in the matter because the merits review application was lodged out of time.
The present proceeding
The judicial review application to this Court was filed on 18 October 2018, having been lodged the previous day. That application was filed some 114 days outside the period prescribed in s.477(1) of the Migration Act 1958 (Cth) (Migration Act).
The applicant seeks an extension of time under s.477(2). The application is supported by a short affidavit filed with it which annexes the decision of the Tribunal. I also have before me as evidence the court book filed on 12 November 2018. Only the Minister filed written submissions in advance of today’s hearing.
I invited oral submissions from the applicant this morning. He confirmed what is said in the application: that there was a delay in him obtaining the Tribunal decision. That is his explanation for the delay in coming to court.
The court book confirms[1] that the Tribunal decision was sent to the applicant at his nominated email address on 22 May 2018. The applicant conceded in oral argument that he does not check his email address regularly. He also conceded that it was his fault that he did not make a review application to the Tribunal within time.
[1] Court Book (CB) 76
I am not persuaded that the applicant has advanced a satisfactory explanation for his significant delay in coming to court.
Perhaps more importantly in this case, the proposed judicial review application is, in my view, doomed to fail. The Tribunal found that it lacked jurisdiction to entertain that application because it was lodged late. Following the decision last Friday of the Full Federal Court in Beni v Minister for Immigration,[2] the correctness of the Tribunal’s finding is not open to doubt.
[2] [2018] FCAFC 228
In other respects I agree with the Minister’s submissions, which were prepared prior to the decision of the Full Federal Court in Beni, in relation to the extension of time issue.
Relevant factual background
The applicant is a male citizen of the People's Republic of China who arrived in Australia on 14 October 2016 as the holder of a subclass FA600 (Visitor) visa.[3]
[3] CB 49
On 28 November 2017, the applicant lodged an application for a protection (subclass 866) visa (protection visa).[4]
[4] CB 57 to 58
The applicant's claims for protection are as follows:
a)the applicant worked at a state owned factory located near water, and was purportedly threatened by his manager after making a complaint that the factory was causing health problems for the locals in the area and by asserting that his own health condition was also worsening;[5]
b)following the making of the complaint to his manager, he was "kicked by gangsters" sent by the head of the factory;[6] and
c)the gangsters purportedly smashed the windows of his home, kicked and threatened him, and told him that he would be killed if he continued to make complaints.[7]
[5] CB 50
[6] CB 50
[7] CB 50
The applicant also claims the following:
a)that he may be tortured and killed by the gangsters and "factory officers" if he returns to China;[8]
b)the Chinese authorities will not protect him as they receive financial benefits from the factory;[9] and
c)he cannot relocate given that he will be found by the gangsters.[10]
[8] CB 50
[9] CB 50
[10] CB 50
On 19 March 2018, a delegate of the Minister (delegate) refused to grant the applicant a protection visa.[11] In his reasons, the delegate noted that the applicant failed to attend a scheduled protection visa interview and failed to provide reasons to the Minister’s Department for his non-attendance.[12] Accordingly, the delegate made his decision based on the information in the applicant's written claims.[13]
[11] CB 49 to 52
[12] CB 50
[13] CB 51
The delegate concluded that the written material provided by the applicant was not sufficient to establish that the applicant had been subjected to harassment, threats or harm by gangsters.[14] The delegate concluded that the applicant was not a refugee as defined in s.5H of the Migration Act and did not satisfy the criterion in s.36(2)(a) of the Migration Act, as there was no real chance that the applicant would face serious harm or persecution for the reasons claimed.[15] The delegate was not satisfied that the applicant fulfilled the complementary protection criterion pursuant to s.36(2)(aa) of the Migration Act, given that there is no real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed to China.[16]
[14] CB 51
[15] CB 51
[16] CB 52
On 27 April 2018, the applicant applied to the Tribunal for review of the delegate's decision, attaching a copy of the delegate's decision.[17]
[17] CB 57 to 69
On 2 May 2018, the Tribunal sent a letter to the applicant notifying him that his application to the Tribunal for review was not valid as it was not lodged within the 28 day time limit required by regulation 4.31(2) of the Migration Regulations 1994 (Cth) (Regulations).[18] In the same letter, the Tribunal informed the applicant that he could make comments in relation to the validity of his application.[19]
[18] CB 71 to 72
[19] CB 71
On 15 May 2018, the applicant sent the Tribunal an email providing comments about the validity of his application.[20] The applicant asserted that he failed to check his computer due to suffering from temporary loss of sight, and subsequently learned that the deadline for lodging his application to the Tribunal had passed.[21]
[20] CB 73
[21] CB 73
Tribunal decision
On 22 May 2018, the Tribunal sent an email to the applicant, attaching a letter notifying the applicant of the Tribunal's decision made on 21 May 2018.[22] The Tribunal noted that the Minister’s Department had complied with s.494C of the Migration Act as it had properly notified the applicant on 19 March 2018 of the delegate's decision to refuse to grant the protection visa.[23]
[22] CB 76 to 79
[23] CB 79
The Tribunal found that the applicant did not make his application for review to the Tribunal within 28 days of receiving notification of the delegate's decision, and therefore the Tribunal had no discretion to accept the applicant's application out of time.[24] Accordingly, the Tribunal concluded that it did not have jurisdiction to review the delegate's decision.[25]
[24] CB 79
[25] CB 79
At [5] the Tribunal specifically found the following:[26]
The Tribunal finds that the applicant is taken to have been notified of the decision on 19 March 2018: s.494C of the Act. Therefore the prescribed period to apply for review ended on 15 April 2018. As the application for review was not received by the Tribunal until 27 April 2018 the application for review was not made in accordance with the relevant legislation and the Tribunal has no discretion to accept an application out of time. Accordingly, the Tribunal has no jurisdiction in this matter.
[26] CB 79
Application to this Court
By an application to show cause filed with this Court on 17 October 2018 the applicant seeks judicial review of the Tribunal's decision, in addition to an extension of time pursuant to s.477 of the Migration Act.
The application asserts that it is necessary in the interests of the administration of justice to extend time for the following reason:
1.I havn't received any letter from tribunal until right now. So I missed the time frame to appeal to Federal Circuit Court.
(errors in original)
The application also advances the following substantive grounds:
1.The Tribunal made jurisdictional error when making its decision to dismiss my application.
2.The Tribunal ignored the fact of the serious harm I would suffer after I return to China.
3.The Tribunal ignored the material documents about the harm what I had suffer in China.
(errors in original)
Ground in relation to extension of time
The Court may grant an extension of time if it is satisfied that it is necessary in the interests of the administration of justice to make the order.[27]
[27] Section 477(2)(b) of the Migration Act
In SZRIQ v Federal Magistrates Court of Australia,[28] Foster J explained at [46] that there is no particular criteria specified in s.477 which must be satisfied as part of the concept of the "interests of the administration of justice". Rather, Foster J noted the following at [46]:
Matters which might be taken into account by the [Court] are at large although they must logically and sensibly relate to the interests of the administration of justice.
[28] (2013) 139 ALD 252
Nevertheless, the courts have developed guidelines as to the factors which might be taken into account in considering the "interests of the administration of justice" in this context.[29] These factors include:
a)whether there has been a reasonable and adequate explanation for the applicant's delay;
b)whether there is any prejudice to the Minister; and
c)whether the applicant's substantive case for judicial review is sufficiently arguable to justify the extension of time.
[29] SZRIQ at [47]
The above factors were reiterated in SZNJG v Minister for Immigration[30] at [24] and Hunter Valley Developments Pty Limited v Cohen[31] at [348] to [349]. However, as was recently found in EXU17 v Minister for Immigration[32] per Griffith J, this Court is not confined in its consideration to those factors and should give meaning to the language of s.477(2) of the Migration Act and have regard to the interests of the administration of justice.
[30] [2018] FCA 334
[31] (1984) 3 FCR 344
[32] [2018] FCA 1675
The applicant claimed that he missed the due date for filing his application with the Court as he did not receive a letter from the Tribunal until "right now". Precisely what is meant by the term "right now" is unclear. There is no evidence before the Court to indicate that the applicant only received the letter recently, and the applicant’s concession during oral argument that he does not regularly check his email renders the assertion dubious.
The applicant was notified of the Tribunal's decision by email to the email address he gave in connection with the review,[33] attaching a letter and the Tribunal's decision on 22 May 2018.[34] By operation of s.494C(5) of the Migration Act, the applicant is deemed to have received the document on the same day it was transmitted, namely 22 May 2018.
[33] CB 58
[34] CB 76 to 79
Accordingly, there is no reasonable and adequate explanation for the applicant's delay in filing his application with the Court.
The Minister does not claim to suffer any specific prejudice if the application for extension of time were granted.
However, on the basis of the length of delay, the lack of an adequate explanation and the lack of merit in the grounds discussed below, overall it is not in the interests of the administration of justice to grant an extension of time to the applicant.
Ground 1
The applicant asserts that the Tribunal fell into jurisdictional error by dismissing the applicant's application for review.
Pursuant to regulation 4.31(2) of the Regulations, the applicant was required to lodge his application for review to the Tribunal within a 28 day period of receiving notice from the Minister’s Department about the refusal of his protection visa. The applicant failed to comply with regulation 4.31(2). Accordingly, the Tribunal was correct in finding that it did not have jurisdiction to review the delegate's decision, and it had no discretion to find otherwise.
Given the correctness of the Tribunal’s finding that it lacked jurisdiction, Grounds 2 and 3 in the proposed judicial review application fall away. The argument in those grounds would depend upon the Tribunal having jurisdiction to entertain the review application.
Conclusion
I conclude that the interests of the administration of justice do not require an extension of time in this case. I will order that, pursuant to s.477(2) of the Migration Act, the application for an extension of time be refused.
In consequence of the refusal of the extension of time, the Minister seeks an order for costs in accordance with the Court scale. The applicant did not wish to be heard on costs.
I will order that applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,737, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 19 December 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Jurisdiction
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Procedural Fairness
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Appeal
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Statutory Construction
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