COD17 v Minister for Immigration and Border Protection [2018] FCA 835

COD17 v Minister for Immigration and Border Protection [2018] FCA 835

Leave to appeal was refused because the proposed grounds lacked sufficient prospects of success. The delegate's decision was sent by email to the last email address provided by the applicant for receiving documents, so the applicant was taken to have been notified on 21 March 2017. The 28 day period for Tribunal review expired on 17 April 2017, but the application was not lodged until 25 April 2017. The Tribunal therefore lacked jurisdiction and had no discretion to extend time, and the Federal Circuit Court did not err in dismissing the judicial review application as not raising an arguable case.

Jurisdiction
Australia
Judgment Date
05 June 2018
Procedural Posture
Application for Leave to Appeal From Federal Circuit Court Dismissal of Judicial Review Application in a Migration Matter / Leave to Appeal
Outcome
Application for leave to appeal dismissed with costs payable by the applicant to the first respondent as agreed or assessed.
Legal Topics
['protection Visa Refusal' 'tribunal Jurisdiction' 'out of Time Review Application' 'notification by Email' 'leave to Appeal' 'show Cause Dismissal' 'procedural Fairness']
['migration' 'administrative Law' 'judicial Review' 'appellate Procedure'] ['protection Visa Refusal' 'tribunal Jurisdiction' 'out of Time Review Application' 'notification by Email' 'leave to Appeal' 'show Cause Dismissal' 'procedural Fairness']

Case Brief

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Procedural Posture

Application for Leave to Appeal From Federal Circuit Court Dismissal of Judicial Review Application in a Migration Matter / Leave to Appeal

Legal Issues

  1. 1 ['Whether the proposed appeal had sufficient prospects of success to justify leave to appeal.' "Whether the Tribunal lacked jurisdiction because the application for review was lodged outside the prescribed 28 day period after notification of the delegate's decision." "Whether notification of the delegate's decision by email to the last email address provided by the applicant was effective under the Migration Act 1958 (Cth)." 'Whether the delegate or Tribunal was required to provide an interview or hearing before refusing the visa application or declining review.' 'Whether proposed grounds alleging bias and denial of procedural fairness should be permitted despite not being raised below.']

Ratio Decidendi

Leave to appeal was refused because the proposed grounds lacked sufficient prospects of success. The delegate's decision was sent by email to the last email address provided by the applicant for receiving documents, so the applicant was taken to have been notified on 21 March 2017. The 28 day period for Tribunal review expired on 17 April 2017, but the application was not lodged until 25 April 2017. The Tribunal therefore lacked jurisdiction and had no discretion to extend time, and the Federal Circuit Court did not err in dismissing the judicial review application as not raising an arguable case.

Court Disposition

Application for leave to appeal dismissed with costs payable by the applicant to the first respondent as agreed or assessed.

Orders

  • ['The application for leave to appeal is dismissed.' "The applicant is to pay the first respondent's costs as agreed or assessed."]