LILIVA v Minister for Immigration

[2018] FCCA 1868

FEDERAL CIRCUIT COURT OF AUSTRALIA

LILIVA v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1868

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – where Tribunal found it did not have jurisdiction – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.116, 338, 347
Migration Regulations 1994 (Cth), regs.2.55, 4.10

Cases cited:
SZULH v Minister for Immigration and Border Protection [2015] FCA 835

Applicant: ALE LILIVA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 101 of 2018

Judgment of: Judge Hartnett

Hearing date: 27 June 2018

Delivered at: Melbourne

Delivered on: 27 June 2018

REPRESENTATION

The Applicant: In Person

Solicitor acting as Counsel for the First Respondent: Ms Jackson

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 101 of 2018

ALE LILIVA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application filed on 16 January 2018 by the Applicant wherein the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 21 December 2017 wherein the Tribunal found it did not have jurisdiction in the matter.

2. The grounds of application are as follows:-

   “(1) The reason I was late for my AAT was I was in the prison serving my sentencing time.  I came out on 24^th of November 2017.  I got the application in the prison and I could not have any access to any computer or e-mail.

   (2) I am not good in doing paperwork or using computer so I needed some assistance from someone in applying for my AAT.”

3. The First Respondent seeks dismissal of the application and costs.

4. On 7 March 2018 Registrar Luxton made orders which included, relevantly, that by 30 May 2018 the Applicant file and serve any amended application with proper particulars of the grounds of application and written submissions. The Applicant has filed no amended application and no written submissions.  Nevertheless, the Applicant was given an opportunity this day to make oral submissions to the Court and he did so.

5. The First Respondent relies upon written submissions filed 13 June 2018 and an affidavit of evidence by Mr Grant Nicholas affirmed on 13 June 2018.  There is also before the Court the evidence as contained in the Court Book filed by the First Respondent on 21 March 2018.

6. This day the Applicant had the First Respondent’s submissions translated to him.  The oral submissions made by him to the Court, in relation to his late lodgement of his application to the Tribunal, were, in essence that:-

   a)he did not know how to use a computer;

   b)he tried to get help in the detention centre but no one was available to help him;  and

   c)there was a filing fee of $850 which he did not have.

7. Otherwise the Applicant submitted to the Court that he wanted to stay in Australia and that he wished to be provided with the opportunity to work so that he could help support his family members which included three children.

Background

1. The Applicant is a male citizen of New Zealand.  He arrived in Australia as the holder of a (subclass TY-444) special category visa (‘the visa’) issued to New Zealand citizens upon arrival. The visa allows New Zealand citizens to reside in Australia for an indefinite period. A requirement for the issue of the visa is that the holder is of good character.

2. As set out in the delegate of the First Respondent’s record of decision made 17 November 2017, the Applicant, on his initial arrival to Australia on 30 September 2011, indicated on his incoming passenger card that his purpose of travel to Australia was to visit relatives. In the Applicant’s response to the notice of intention to consider cancellation, dated 3 November 2017, issued to the Applicant, the Applicant stated he had a partner and children in Australia for whom he works which the delegate noted would indicate that he provided financial support to them.

3. The delegate noted in the record of decision that the Applicant appeared in the Bendigo Magistrates’ Court on 21 July 2015 charged with various offences, being “contravene family violence intervention order;  unlawful assault;  contravene a family violence intervention order- harm/fear;  fail to answer bail”.  As a consequence of being charged with those offences, the Applicant was convicted and a community corrections order issued in respect of him for six months commencing on 21 January 2015.

4. Thereafter, and in the Bendigo Magistrates’ Court on 26 September 2017, in respect of offences which occurred on 4 July 2017, being “aggravated assault of female; wilfully damage property without auth/excuse; enter private place; contravene family violence intervention order”, the Applicant was convicted and ordered to serve two months of imprisonment with the imposition of a 12 month corrections order.

5. The delegate noted these to be “serious and violent charges committed in relation to domestic violence against an individual”.  The delegate further noted that the Applicant’s:

   “…repetitive nature of his offending against the same individual shows disregard to the Intervention Order in place to protect that individual weigh heavily against him in this case.”

6. The delegate’s decision, after considering all the available information before the delegate, was to be satisfied:-

   “…that the grounds for cancelling the visa outweigh the reasons not to cancel the visa.  I have therefore decided to cancel the visa holder’s visa.”

Visa under s.116(1)(e) of the Migration Act 1958 (Cth) (‘the Act’)

1. On 30 November 2017 the Applicant applied to the Tribunal for review of the delegate’s decision.

2. On 4 December 2017 the Tribunal wrote to the Applicant inviting him to comment on the validity of his application.  The Tribunal said, relevantly:-

   “I am of the view that your application is not a valid application as it was not lodged within the relevant time limit.  The time limit is 7 working days from the day on which you are taken to have been notified of the primary decision.  The primary decision was handed to you on 17 November 2017 and, on the basis that 17 November 2017 was the date on which you are taken to have been notified, the last date for lodging the application for review was 28 November 2017.  As the application was not received until 30 November 2017, it appears to be out of time.  However, this is a matter which must be determined by a Member.

   If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 18 December 2017.  Upon receipt of your response, your application, with any comments you make, will then be referred to a Member to make a decision on your application …”

3. In response, a Ms Renee Smith, the Applicant’s partner, sent an email on the Applicant’s behalf to the Tribunal on 4 December 2017 in which it was claimed that the Applicant had sent “3 appeals which have gone ‘missing’”.

4. In its decision dated 21 December 2017 the Tribunal noted in paragraph 3 of the Statement of Decision and Reasons (‘the Decision Record’) that, pursuant to s.347(1)(b) of the Act and reg.4.10 of the Migration Regulations 1994 (Cth) (‘the Regulations’), an application for review of the delegate’s decision had to be made within seven working days after the Applicant was notified of the decision in accordance with the statutory requirements.

5. The Tribunal noted that the material before it indicated that the Applicant was notified of the decision by letter dated 17 November 2017 and despatched by email to where the Applicant was detained within the Victorian criminal justice system.  The Tribunal was satisfied that the Applicant was notified in accordance with the statutory requirements as set out in paragraph 4 of the Decision Record.

6. The Tribunal was satisfied, based on the information provided by the Applicant, that he wished to lodge an application for review and wrote a letter which was addressed to the “Registries” of the Tribunal and sent by facsimile on 22 November 2017.  The Tribunal noted, again in paragraph 5 of the Decision Record, that it was satisfied that the cover sheet for the facsimile was addressed to the Tribunal and contained the correct facsimile numbers.  The Tribunal was satisfied the letter and cover sheet dated 22 November 2017 was sent by the prison authorities to the Immigration Department and was not sent to or received by the Tribunal.

7. The Tribunal noted in paragraph 6 of the Decision Record that it received the Applicant’s application for review form on 30 November 2017.  This application for review form was signed 29 November 2017 and was sent by facsimile from “Officewors Bendigo” on 30 November 2017.

8. The Tribunal found, as set out in paragraph 7 of the Decision Record, that it did not have jurisdiction in the matter. It found, in accordance with reg.2.55 of the Regulations that the Applicant was deemed to have been notified of the decision on 17 November 2017 and the prescribed period in which the Applicant could have made the application to the Tribunal ended on 28 November 2017. The Tribunal concluded that as the application for review was not lodged with the Tribunal until 30 November 2017 it did not have jurisdiction in the matter.

9. On 16 January 2018 the Applicant filed the application for judicial review within the statutory timeframe, that being the application before the Court this day.  The Applicant also filed a supporting affidavit in which he explained why he wished to remain in Australia.

Consideration

1. The law is such that a review application received by the Tribunal outside the prescribed time limit is invalid and an application that the Tribunal does not have jurisdiction in respect of.[1]

   [1] SZULH v Minister for Immigration and Border Protection [2015] FCA 835, 17.

2. The grounds of review as set out in the Applicant’s application provide no proper basis for finding that the Tribunal’s decision is affected by jurisdictional error. As pointed out by the First Respondent in submissions, although the Applicant wrote a letter addressed to the Tribunal and sent by facsimile on 22 November 2017 expressing his wish to apply for review, that letter was not received by the Tribunal as is evidenced from an examination of the Tribunal’s Decision Record and from the affidavit of Mr Nicholas, affirmed 13 June 2018. In any case, the Applicant’s letter of 22 November 2017 was not an application made in an approved form as required by s.347(1)(a) of the Act.

3. The Tribunal applied the correct law in determining the Applicant’s application for review was not made within the time prescribed by the Act and Regulations. When read together, s.347(1)(b)(i) of the Act and reg.4.10(1)(b) of the Regulations provide that an application for review of a Part 5 reviewable decision covered by s.338(3) of the Act must be made by the end of seven working days after the day on which notice of the decision is received. This requirement was correctly identified by the Tribunal in paragraph 3 of its Decision Record.

4. On the material before it, the Tribunal was correct to conclude that notice of the delegate’s decision was sent to and received by the Applicant by email on 17 November 2017. Pursuant to reg.2.55(8) of the Regulations, the Applicant is deemed to have received the document at the end of the day on which it is transmitted by email, being 17 November 2017. The Tribunal was correct in finding that the prescribed period within which the application for review could be made ended on 28 November 2017.

5. No jurisdictional error attends the decision of the Tribunal. Accordingly, the application is dismissed and a costs order shall be made against the Applicant.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  10 July 2018