BMY18 v Minister for Home Affairs [2019] FCAFC 189

BMY18 v Minister for Home Affairs [2019] FCAFC 189

BOQ15's appeal failed because the cumulative evidence established that the delegate's decision was sent by registered post and deemed received, and the notification letter clearly and accurately stated the review timeframe. BMY18's appeal succeeded because the notification placed the information about deemed receipt on page 3 under the incorrect heading 'Financial or case worker assistance', away from the review rights section, making the statement of the review time confusing and misleading and therefore non-compliant with s 66(2)(d)(ii). Because the review period was not validly stated, the Tribunal was wrong to conclude it lacked jurisdiction.

Jurisdiction
Australia
Judgment Date
31 October 2019
Procedural Posture
Migration Appeals From Federal Circuit Court Decisions Dismissing Applications for Judicial Review of Administrative Appeals Tribunal Jurisdiction Decisions / Appeal; Application for Leave to Appeal Out of Time in NSD 1025 of 2019
Outcome
BMY18 appeal allowed with costs; BOQ15 granted leave to appeal out of time but appeal dismissed with costs.
Legal Topics
['protection Visa Refusal' 'notification of Visa Refusal Decisions' 'time Limits for Merits Review' 'administrative Appeals Tribunal Jurisdiction' 'extension of Time' 'procedural Fairness']
['migration Law' 'administrative Law' 'judicial Review'] ['protection Visa Refusal' 'notification of Visa Refusal Decisions' 'time Limits for Merits Review' 'administrative Appeals Tribunal Jurisdiction' 'extension of Time' 'procedural Fairness']

Case Brief

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Procedural Posture

Migration Appeals From Federal Circuit Court Decisions Dismissing Applications for Judicial Review of Administrative Appeals Tribunal Jurisdiction Decisions / Appeal; Application for Leave to Appeal Out of Time in NSD 1025 of 2019

Legal Issues

  1. 1 ["In BOQ15, whether the evidence established that the appellant was notified of the delegate's decision refusing a protection visa." 'In BOQ15, whether the notification letter sufficiently stated the time within which an application for Tribunal review could be made as required by s 66(2)(d)(ii) of the Migration Act 1958 (Cth).' "In BMY18, whether the notification letter clearly stated the time within which an application for Tribunal review could be made where the deemed receipt information appeared under the heading 'Financial or case worker assistance'." 'In BMY18, whether it was necessary to determine grounds concerning receipt of the notification and procedural fairness before the primary judge.']

Ratio Decidendi

BOQ15's appeal failed because the cumulative evidence established that the delegate's decision was sent by registered post and deemed received, and the notification letter clearly and accurately stated the review timeframe. BMY18's appeal succeeded because the notification placed the information about deemed receipt on page 3 under the incorrect heading 'Financial or case worker assistance', away from the review rights section, making the statement of the review time confusing and misleading and therefore non-compliant with s 66(2)(d)(ii). Because the review period was not validly stated, the Tribunal was wrong to conclude it lacked jurisdiction.

Court Disposition

BMY18 appeal allowed with costs; BOQ15 granted leave to appeal out of time but appeal dismissed with costs.

Orders

  • ['In NSD 946 of 2019, the appeal be allowed.' 'In NSD 946 of 2019, the orders made by the Federal Circuit Court on 23 May 2019 be set aside.' 'In NSD 946 of 2019, the decision of the Second Respondent made on 19 March 2018 be quashed.' "In NSD 946 of 2019, the Second Respondent determine the Applicant's review...