CAV18 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judge: FOSTER J
• Judgment Date: 20 February 2020
• Neutral Citation: [2020] FCA 173
• Date: 20 February 2020
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

CAV18 v Minister for Home Affairs [2020] FCA 173

Appeal from:	CAV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 1921
File number:	NSD 1208 of 2019
Judge:	FOSTER J
Date of judgment:	20 February 2020
Catchwords:	MIGRATION – whether the Full Court decision in BMY18 v Minister for Home Affairs [2019] FCAFC 189 in which the Full Court followed relevant aspects of the reasoning of an earlier Full Court in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 was correctly decided – whether, in the event that a single judge sitting in the appellate jurisdiction of the Federal Court is of the opinion that an earlier decision of the Full Court was not correctly decided, that judge is entitled not to follow the Full Court decision – whether the correct interpretation of s 66(2)(d)(ii) of the Migration Act 1958 (Cth) was raised in the court below in the present case and is raised before the Federal Court on appeal – whether the primary judge correctly applied the true interpretation of s 66(2)(d)(ii) in the circumstances of the present case
Legislation:	Federal Court of Australia Act 1976 (Cth), s 25(1AA) Migration Act 1958 (Cth), s 65, s 66(2) Migration Regulations 1994 (Cth), r 4.31(2)
Cases cited:	Ali v Minister for Home Affairs [2019] FCA 1102 BMY18 v Minister for Home Affairs [2019] FCAFC 189 DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 EUQ17 v Minister for Home Affairs [2018] FCA 1645 FPL17 v Minister for Home Affairs [2018] FCA 1766 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486 SZECD v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 53 SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487 SZNPT v Minister for Immigration and Citizenship (2009) FCA 1408 Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495 Zhan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 469
Date of hearing:	12 February 2020
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	49
Counsel for the Appellant:	The Appellant appeared in person with the aid of an interpreter
Counsel for the First Respondent:	Mr N Swan
Solicitor for the First Respondent:	Sparke Helmore
Solicitor for the Second Respondent:	The Second Respondent submitted save as to costs

ORDERS

		NSD 1208 of 2019
BETWEEN:	CAV18 Appellant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	FOSTER J
DATE OF ORDER:	20 FEBRUARY 2020

BY CONSENT, THE COURT ORDERS THAT:

1. The appeal be allowed.

2. Orders 2 and 3 made by the Federal Circuit Court of Australia on 11 July 2019 be set aside and in lieu thereof:

   1. The decision of the second respondent made on 27 March 2018 (AAT case number 1732691) be quashed.

   2. The matter be remitted to the second respondent requiring it to determine according to law the Application for Review made by the appellant on 22 December 2017 upon the basis that it has jurisdiction to do so.

   3. The first respondent pay such costs as the appellant is entitled to as a self-represented litigant.

3. The first respondent pay such costs of the Appeal to this Court as the appellant is entitled to as a self-represented litigant.

AND THE COURT ORDERS THAT:

4. The copy letter dated 3 February 2017 from the Department of Immigration and Border Protection to the visa applicant later identified as DFQ17 be marked as Exhibit 1.

5. The copy letter dated 21 April 2017 from the Department of Immigration and Border Protection to the visa applicant Gohar Ali be marked as Exhibit 2.

6. The copy letter dated 9 January 2018 from the Department of Immigration and Border Protection to the visa applicant later identified as BMY18 be marked as Exhibit 3.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FOSTER J:

1. The appellant appeals from a judgment of the Federal Circuit Court of Australia (the Circuit Court) dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal): CAV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 1921. The Tribunal had determined that it did not have jurisdiction in relation to the appellant’s Application for Review.

2. The appellant is a Chinese national who was born in July 1970. He first arrived in Australia on 27 December 2016 on a Visitor (Class 600) visa. On 23 February 2017, the appellant applied for a Protection (subclass XA866) Permanent Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). On 9 May 2017, a delegate of the Minister for Immigration (the Minister), who is the first respondent in this proceeding, refused that visa application.

3. On 22 December 2017, the appellant applied to the Tribunal for a review of the delegate’s decision. On 19 February 2018, the Tribunal wrote to the appellant advising him that his Review Application did not appear to have been lodged within the relevant time period. The appellant was asked to comment by 5 March 2018. No response to that invitation to comment was ever received by the Tribunal.

4. On 27 March 2018, the Tribunal concluded that it did not have jurisdiction to conduct the review sought by the appellant because his Review Application had not been lodged within the requisite 28 day time period from 9 May 2017 as specified in r 4.31(2) of the Migration Regulations 1994 (Cth). The 28 day time period had actually expired on 5 June 2017. Accordingly, the Tribunal held that it had no jurisdiction to hear the matter.

5. By Application for Judicial Review dated 23 April 2018 and filed by the appellant in the Circuit Court on 9 May 2018, the appellant sought judicial review of the Tribunal’s decision. The grounds which the appellant set out in his Application in the Circuit Court were expressed as follows:

1. I was not notified of the decision for my application for protection visa.

2. I didn’t received the letter by post.

3. AAT made a mistake to say it has no jurisdiction in this matter.

6. On 6 January 2020, the Minister’s solicitor emailed to the Court proposed Consent Orders (Proposed Orders) that had the effect of allowing the appeal and granting consequential relief upon the basis that the notification letter dated 9 May 2017 sent by the Department of Immigration and Border Protection to...