BLF15 v Minister for Immigration & Anor [2016] FCCA 251 (19 January 2016)

Last Updated: 16 February 2016

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLF15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 251

Catchwords: MIGRATION –Application for extension of time – whether tribunal’s decision affected by jurisdictional error – where no error in tribunal’s decision – application dismissed

Legislation: Migration Act 1958 (Cth): ss.412(1), 476, 494C

N/A

Applicant:

BLF15

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 662 of 2015

Judgment of:

Judge Vasta

Hearing date:

19 January 2016

Date of Last Submission:

19 January 2016

Delivered at:

Brisbane

Delivered on:

19 January 2016

REPRESENTATION

The Applicant appearing on his own behalf

Counsel for the First Respondent:

Ms Noble

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

(1) That the application for leave for extension of time in which to file this application is refused.
(2) That there be no order for costs.

FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE

BRG 662 of 2015

BLF15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. This is an application for an extension of time to apply for judicial review under s.476 of the Migration Act 1958 (Cth) (“the Act”)of a decision of the Administrative Appeals Tribunal (“AAT”), which was then the Refugee Review Tribunal (“RRT”), dated 30 March 2015.
2. The background to this matter is that the Applicant made an application for a protection visa on 20 December 2013. In short compass, he claimed that if he were removed to India, he would be targeted for death or serious harm. The Applicant claimed that his brother married his wife in an unarranged marriage. The wife was from a Hindu family of a different caste to the Applicant and his brother. As a result of these differences in the caste, the wife’s family did not approve of the marriage, whereas the Applicant supported his brother’s marriage.
3. He says, because of this support, he was targeted by the family of the wife. He said that the family of the wife were well-connected to the police and politicians and would use their power to cause him harm such as having him convicted for a crime he didn’t do or having him killed by an assassin. He claims that, a few days before his brother’s marriage, he was taken into custody for questioning over his brother’s whereabouts. He said that, whilst in custody, he was cut with a knife on his arm and had salt put in his wound. He said that police also attempted to sexually assault him.
4. He then travelled to Australia with his wife to escape the family of his brother’s wife. In 2010, he said his wife divorced him in connivance with the family of his brother’s wife. Since that time that he has been in Australia, his brother and his wife have since divorced.
5. The Applicant also says that he worked in the Malwa Magic Show and Public Welfare Society as a social activist and was involved in cases against police corruption and brutality in the Punjab in the 1990s. He said that police officers were sentenced to jail for those crimes. Those police blame the Applicant and want to kill him.
6. So, in summary, the Applicant says that he was being targeted due to his support of inter-caste marriage and because he challenged and complained about the behaviour of police officials towards his family and himself. He says that all people from the opposition party have been looking for him as they believe he is solely responsible for all those matters.
7. Not surprisingly, the delegate did not accept those claims and did not grant a visa.
8. Notwithstanding the merits, or what one may think of the merits, of those claims, the Applicant was entitled to make the application and to make his claims.
9. Having been rejected by the delegate, as is anyone wanting to cavil with the decision of the then RRT, he was entitled to take his matter to the then Refugee Review Tribunal.
10. However, the method by which one comes before the RRT is extremely strict. The section in the Act that deals with this is s.412(1) of the Act. It reads that:
    • “(1) An application for review of a Part 7reviewable 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).”
11. The Regulation 4.31 dictates the prescribed period as follows:
    • “4.31Time for lodgement of application with Tribunal
    • (1) For paragraph 412(1)(b) of the Act, if an applicant is in immigration detention on the day the applicant is notified of a Part 7reviewable decision, the period in which an application for review of the decision must be given to the Tribunal by or for the applicant is 7 working days, commencing on:
      • (a) the day the applicant is notified of the decision; or
      • (b) if that day is not a working day—the first working day after that day.
    • (2) For paragraph 412(1)(b) of the Act, if an applicant is not in immigration detention on the day the applicant is notified of a Part 7reviewable decision, the period in which an application for review of the decision must be given to the Tribunal by or for the applicant is 28 days, commencing on the day the applicant is notified of the decision.
    • Note: If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.”
12. The delegate of the Minister gave his decision on 9 January 2015. It was then sent to the Applicant’s then representative. Section 494C deems that the Applicant received that notification on 20 January 2015. Now, that deeming provision has no discretion about it. There is no rebuttal presumption of fact and so it is irrelevant as to whether or not the document is actually received by that date. Under the legislation, it is deemed that he has received that document.
13. Therefore, from 20 January 2015, there was a period of 28 days in which the Applicant had to make his application to the RRT. That date was 17 February 2015.
14. It is an uncontroverted fact in this case that Australia Post did not deliver the document properly. It was delivered to the wrong address, notwithstanding that it had been correctly addressed by the RRT. Australia Post did not deliver the document until 20 February 2015. The Applicant did not receive the notice of the delegate until 25 February 2015 and he then made his application to the RRT on 27 February 2015.
15. However, the legislation is very strict and unless there has been compliance with the legislation, the RRT has no jurisdiction. On 30 March 2015, the RRT published a one-page decision which summarised exactly what I have just said and it concluded that the Tribunal did not have jurisdiction to hear the matter.
16. I have already remarked in the course of this hearing that I feel that an injustice has been done to Mr BLF15. I have already remarked that another government agency has subverted the will of this government agency; that is the Department of Immigration, in notifying a person of its decision within a timely manner.
17. But, as I have also noted, I am not, in accordance with my oath, able to simply replace the law as it is with the law that I would think it ought to be. That is not the job of the Courts. If there is to be a change in the law, it is a matter for the legislature and not the Courts. I can, however, say that, in my view, the way in which the legislation has been applied, as it must be applied to the facts in this case, has led to an injustice to Mr BLF15.
18. Notwithstanding that, if the Applicant were to have the matter put before this Court, the Applicant then had 35 days from that time the decision was made to do so. The RRT decision was made on 30 March 2015. Therefore, the application to this Court to review the matter ought to have been made by 4 May 2015. It was not made until 17 July 2015, some 74 days out of time. It is for this reason that the application before me is an application for extension of time.
19. In looking at whether I ought grant the application for extension of time, I need to look at a number of things, but most importantly,
    1. the reason for the delay and;
    2. the overall prospects or merits of the application itself.
20. With regard to the first aspect, there is no material before me that adequately explains why the application was made 74 days out of time. The Applicant submitted to me that his then lawyer, upon receipt of the RRT decision, took his case to the Minister. The Applicant does not know what happened, but that the lawyer consequently told him that there was nothing he could do.
21. It was after this that the Applicant learned that he could put the matter before this Court. I remarked to the Applicant that there was no material that backed up this claim at all before me. The Applicant said that, if he were given 24 hours, he could produce such material. Even if such material could be discovered within 24 hours, it still does not overcome the merits aspect of what I have to consider.
22. In my view, whilst the result has been an injustice, there was, according to the legislation, nothing more that the Tribunal could have done. If it were within my power, I would have ordered that the Tribunal assess the claim of the Applicant, but it is not within my power and it was not within the power of the Refugee Review Tribunal, as it was then known, to do anything other than what it did. For those reasons, I do not see that there is actually any merit in the application, notwithstanding how I feel about the injustice of the situation.
23. I refuse the application. As this result comes about because of the fault of Australia Post, I decline to make a costs order.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:11 February 2016