Adhikari v Minister for Immigration

[2018] FCCA 1459

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADHIKARI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1459

Catchwords:

MIGRATION – Migration Act 1958 (Cth) – application for judicial review of decision of Administrative Appeals Tribunal – Tribunal found that it had no jurisdiction to review the decision of the Delegate of the Minister for Immigration to cancel the applicant’s student visa under s.116(1)(b) of the Migration Act 1958 (Cth) as the application for review was made out of time – statutory construction of reg.2.55(9) of the Migration Regulations 1994 (Cth) – no conflict between s.347(1)(b)(i) of the Migration Act 1958 (Cth) and reg.4.10(1)(b) of the Migration Regulations 1994 (Cth) – applicant needed an 8 day extension of time under s.477(2) of the Migration Act 1958 (Cth) to make his application to this Court – no adequate explanation for delay and no reasonable prospects of success for any proposed substantive ground – application for extension refused and dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116, 338, 347, 477

Migration Regulations 1994 (Cth)

Cases cited:

Bechara v Bates [2018] FCA 460

Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86

Applicant: ABHISHEK ADHIKARI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1199 of 2016

Judgment of: Judge Dowdy

Hearing dates: 8 June 2017 and 4 August 2017

Delivered at: Sydney

Delivered on: 8 June 2018

REPRESENTATION

Counsel for the Applicant: Mr M. Newman

Solicitors for the Applicant: Newman and Associates

Counsel for the First Respondent: Ms. C. Tipene and Ms. G. Doyle

Solicitors for the First Respondent: Sparke Helmore

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 13 May 2016 for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1199 of 2016

ABHISHEK ADHIKARI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant in this proceeding is a male citizen of Nepal aged 24 years, having been born on 4 October 1993.

2. On 20 July 2013 the Applicant was granted a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa (Student visa) for a stay period up to 13 August 2016.

3. By Notice of Intention to Consider Cancellation of the Student visa dated 8 January 2016 (NOICC) the Department of the Minister gave notice to the Applicant that it appeared that he had not been enrolled in a registered course of study since 31 May 2015 and therefore appeared to be in breach of a condition imposed on his Student visa. The Applicant did not respond to the NOICC.

4. By Decision Record of 2 February 2016 (Decision Record) a Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) cancelled the Student visa under s.116(1)(b) of the Migration Act 1958 (Cth) (Act) because the Applicant was in breach of and had not complied with cond.8202(2)(a) of Sch.8 to the Migration Regulations 1994 (Cth) (Regulations) in that he had not been enrolled in a full-time registered course of study since 31 May 2015.

5. By Application filed in this Court on 13 May 2016 he seeks to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 31 March 2016, which found that it lacked jurisdiction to review the decision of the Delegate to cancel the Student visa.

6. I note that the Applicant needs, under s.477(2) of the Act, an extension of time of some 8 days to file his Application in this Court outside the 35-day time limit prescribed under s.477(1).

Relevant Background

1. I find on the evidence that as at 2 February 2016 the correct residential and email addresses of the Applicant last known to the Minister were respectively:

   a)17/14 Roberts Street, Strathfield, NSW, 2135; and

   b)[email protected]

2. Further, the evidence establishes that the Minister on 2 February 2016:

   a)dispatched the Notification of Cancellation of Student visa (as required by s.127 of the Act) and the Decision Record cancelling the Student visa (each dated 2 February 2016) in an envelope by registered pre-paid post to 17/14 Robert Street, Strathfield, NSW, 2134; and

   b)transmitted copies of the Notification of Cancellation of Student visa and the Decision Record cancelling the Student visa by email to the Applicant’s email address. 

3. It will be observed that the residential address on the envelope to which the Notification of Cancellation and the Decision Record were sent by registered pre-paid post left the “s” off “Robert Street” and gave the postcode of Strathfield as “NSW 2134”, which is actually the postcode of Burwood / Burwood North (the typographical errors). Subject to any issue about the typographical errors, the Minister complied with reg.2.55(3)(c) of the Regulations as to pre-paid post and reg.2.55(3)(d)(ii) as to the email. Accordingly, pursuant to reg.2.55(7)(a) the Applicant was taken to have received the Notification of Cancellation and the Decision Record by registered pre-paid post 7 working days after 2 February 2016, namely on 11 February 2016 and pursuant to reg.2.55(8) the copies emailed were taken to have been received by the Applicant at the end of 2 February 2016.

4. I further find based on the evidence comprised in the affidavit of Ms Hailey Musgrove affirmed 11 May 2017 that:

   a)Australia Post on 5 February 2016 attempted to deliver the Notice of Cancellation and the Decision Record contained in an envelope at 17/14 Roberts Street, Strathfield but that the Applicant did not appear to be in attendance at that address at the time of attempted delivery;

   b)on 5 February 2016 a card was left by Australia Post at 17/14 Roberts Street, Strathfield advising the Applicant that the envelope could be collected at Strathfield Post Office;

   c)on 5 February 2016 the envelope was transferred to Strathfield Post Office awaiting collection; and

   d)the envelope was not collected at Strathfield Post Office by 13 February 2016 and on or about 25 February 2016 was returned by Australia Post to the Minister as sender.  

5. The Minister’s decision to cancel the Student visa was a Part 5-reviewable decision by force of s.338(3) of the Act. Pursuant to s.347(1)(b)(i) an application to the Tribunal for review of the Minister’s decision to cancel a Student visa had to be given within a prescribed period which was not more than 28 days after notice of the cancellation had been given to the relevant applicant for review. Under reg.4.10(1)(b) of the Regulations the prescribed period in which the Applicant in this proceeding had to lodge his application for review was within 7 working days after 11 February 2016, namely by 22 February 2016.

Tribunal Decision

1. The Applicant applied through his registered migration agent to the Tribunal for review of the Delegate’s decision to cancel his Student visa on 3 March 2016.

2. By letter dated 7 March 2016 the Tribunal advised the Applicant that it was of the view that his application for review was not valid and invited him to respond. He did so by his Statement dated 21 March 2016 which claimed to the following effect:

   a)he came to Australia in September 2013 to study for a Diploma and Bachelor in Business and continued his studies until May / June 2015;

   b)he had then become addicted to tablets and a powder substance for which addiction he sought medical help;

   c)in relation to the cancellation of his Student visa:

   When immigration sent me the decision to cancel my visa, I was bedridden. I was not able to check correspondences from the department. I did not open email for weeks. Once I was able to get out of bed, I went to the college that is where I found that I had problems with immigration.

   When I opened finally, I saw the letters. Invitation to comment and cancellation of the visa.

   The entire situation was out of my control therefore I could not response and apply for review in time.

   He attached to his Statement a letter dated 18 March 2016 from a pharmacist which simply stated:

   This is to certify that according to our records the [Applicant] has attended Clinic 36 Regent House regularly for her [sic] ongoing medical treatment and medication from 03/10/2015 – 10/03/2016.

3. In its Decision Record the Tribunal found that it did not have jurisdiction to hear and determine the application for review because it was not lodged in accordance with the time prescribed under the Act and the Regulations. It found that in accordance with reg.2.55 of the Regulations the Applicant had been taken to have been notified of the decision to cancel by the Delegate on 11 February 2016 and that the prescribed period within which the Application for review could be lodged had ended on 22 February 2016. It therefore followed that as the application for review was not lodged with the Tribunal until 3 March 2016 the Tribunal had no jurisdiction in the matter.

4. I note that it is clear that the Tribunal was not aware of the typographical errors and did not consider them in its Decision Record. The omission of the “s” from “Roberts Street” first came to light when pointed out by Ms Tipene who appeared for the Minister at the hearing in this Court on 8 June 2017 when Mr Newman had been unable to be present. I noticed later in the day, after the hearing, the incorrect post code. This all led to the matter being further listed on 4 August 2017 when Mr Newman appeared for the Applicant and Ms Doyle appeared for the Minister.

Grounds of Extension Application

1. The delay in this case is short, being 8 days outside the 35 day time limit for seeking judicial review in this Court. Nevertheless, the Minister submitted that the Applicant has not provided an adequate explanation for the delay. I agree with that submission. The only basis put before the Court for an extension is the following evidence from the affidavit of Mr Newman in his affidavit sworn on 13 May 2016 in the following terms:

   1.      I am the solicitor for the applicant.

   2. The applicant consulted me on 6 May 2016. He brought with him a medical certificate from his GP. He consulted me a week before but had no adequate evidence of any illness.

   3.      I needed some little time to consider the matter.

2. The relevant principles applicable to an application for an extension of time have been conveniently stated recently by Perry J in Bechara v Bates [2018] FCA 460 at [17] – [18] in the following terms:

   [17]The principles relevant to the exercise of discretion to grant an extension of time within which to appeal are well established: see e.g. BAO15 v Minister for Immigration and Border Protection [2016] FCA 214 at [19] (Perry J); Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–349 (Wilcox J). These may be summarised as follows.

   (1) An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so.

   (2) The length of the delay is a relevant factor.

   (3) The applicant must show an acceptable explanation for the delay, and that it is fair and equitable in the circumstances to extend time.

   (4) Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time.

   (5) The merits of the substantive appeal, if leave were granted, are properly to be taken into account.

   [18]As to the last of these matters, I recently explained in Jamal v Secretary, Department of Social Services [2017] FCA 916 that:

   12.    ... it will seldom be in the interests of justice to grant an extension of time where an appeal would have little or no prospects of success, given the additional resources that would impose upon the parties and Court, and impact on other Court users: see by analogy in MZABP v Minister for Immigration and Border Protection[2015] FCA 1391 (MZABP (FCA)) at [62] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection[2016] FCAFC 110 at [38]). In turn, in considering the applicant’s prospects of success on an appeal, the Court should not conduct a summary hearing of the appeal but is to “assess the merits in a fairly rough and ready way” (Jackamarra v Krakouer[1998] HCA 27; (1998) 195 CLR 516 at [9]). In other words, the grounds should be considered on their face and examined at a “reasonably impressionistic level”; the Court should not descend into a fuller consideration of the arguments for and against each ground (see MZABP (FCA) at [62]).

   (emphasis removed)

3. I now turn to consider the most important factor in considering whether or not to extend time by considering the merits of the substantive Grounds proposed in the Application filed in this Court on 13 May 2016.

Proposed Grounds of Attack on Tribunal Decision in this Court

1. The Grounds proposed in the Application are as follows:

   1. The Applicant, a former student visa holder first learned of his visa cancellation on 29 February 2016 when he was seeking enrolment at a RTO. The applicant acknowledges that the Department had emailed him earlier about a NOICC and the cancellation itself, but says he was too unwell to attend to his matters being under the influence of a prescription medication. The applicant sought a review on 3 March 2016, the first day after he became aware of the earlier notice(s).

   2. The applicant says that his incapacity ought to have been considered at the tribunal and that it was not caused the tribunal to fall into error by not exercising its duty to review.

   1. The applicant received a decision from the 1st respondent refusing him a grant of a student visa on 10 December 2015. The applicant then lodged a review application with the 2nd respondent on 4 January 2015.

   2. The application was heard on 11 February 2016 with the Tribunal deciding that it did not have jurisdiction as the application was lodged out of time, the Tribunal citing 347(1)(b) of the Migration Act and r.4.10 of the Migration Regulations.

   3. The applicant says that 347(1)(b) of the Migration Act provides as follows:

   Application for review of Part 5-reviewable decisions

   (1) An application for review of a Part 5-reviewable decision must:

   (a) be made in the approved form; and

   (b) be given to the Tribunal within the prescribed period, being a period ending not later than:

   (i) if the Part 5-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)--28 days after the notification of the decision;

   4. The applicant says that r.4.10 is in conflict with that provision of the parent Act and is ultra vires the parent Act.

   5. Accordingly, the applicant says that the Tribunal erred in law and in its jurisdiction by not finding that the applicant was within time and was not statute barred from making his review application.

Consideration

Ground 1

1. This Ground does not meaningfully assert any jurisdictional error and would fail. Insofar as it makes an assertion about the Applicant being “unwell” this is dealt with under Ground 2.

Ground 2

1. Ground 2 appears to be based on two contentions, namely:

   a)that the Tribunal should have had regard to the Applicant’s alleged “incapacity” in deciding whether or not it had jurisdiction to hear and determine his application for review of the Delegate’s decision to cancel his Student visa; and

   b)that there is a conflict between s.347(1)(b)(i) of the Act which provides that an application for review by the Tribunal of a cancellation of Student visa must be given to the Tribunal within a prescribed period not ending later than a period of 28 days after receipt of notice of cancellation and reg.4.10(1)(b) of the Regulations which provides that for the purposes of s.347(1)(b)(i) the prescribed period ended 7 working days after the day on which the notice of cancellation of Student visa is received.

2. In my view, neither argument comprised within this Ground would succeed in establishing that the decision of the Tribunal is affected by jurisdictional error.

3. First, this is not an area of law where the Tribunal is entitled to take into account what might be called exceptional circumstances, compelling circumstances, humanitarian circumstances, sympathetic circumstances or any “incapacity” or “unwellness” of an applicant based on such circumstances. The purpose of the legislative scheme here under discussion is to achieve administrative certainty in respect of the notification of decisions and the time frame for merits review of such decisions. As Jacobson J said in Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86 at 94 [58]:

   [58]The purpose of provisions such as these is to achieve administrative certainty as to whether a document has been given to a person, and as to the time at which this has occurred. It affects time limits for review of administrative decisions and may, in some instances, foreclose that possibility.

4. Further, there was no probative medical or other evidence provided to the Tribunal or tendered in this Court which went anywhere near establishing that the Applicant lacked the capacity to attend the Strathfield Post Office or open his emails during the relevant period: see [13] above.

5. Second, there is no inconsistency between s.347(1)(b)(i) of the Act and reg.4.10(1)(b) of the Regulations. Section 347(1)(b)(i) merely dictates that any relevant period prescribed by the Regulations must not be any later than 28 days after notification of the decision to be reviewed by the Tribunal. The section does not foreclose or preclude the prescription of a shorter time frame and indeed s.347(5) specifically provides that “Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of Part 5-reviewable decisions…”.

6. Proposed Ground 2 would also fail to establish that the decision of the Tribunal is affected by jurisdictional error.

The Typographical Errors

1. The Applicant had not relied upon any Ground based on the typographical errors but their tendency to establish jurisdictional error, if any, should be considered.

2. In my view the typographical errors do not establish jurisdictional error. Notwithstanding the typographical errors, the envelope enclosing the Notice of Cancellation and Decision Record was dispatched by the Minister and then Australia Post attempted to deliver the envelope to the Applicant’s correct residential address at 17/14 Roberts Street, Strathfield. No prejudice, procedural unfairness or practical injustice has been occasioned to the Applicant by the typographical errors. The envelope was then transferred to the Strathfield Post Office but not collected by the Applicant and thereafter returned to the Minister as sender.

3. The Minister further contended that even if the Court were to hold that there was a defect or error as a result of the typographical errors in his giving the Notice of Cancellation and Decision Record to the Applicant by pre-paid post, that reg.2.55(9) of the Regulations rendered any such defect or error immaterial and ineffective for the purposes of establishing jurisdictional error. Regulation 2.55(9) provided as follows:

   (9) If:

   (a) the Minister purports to give a document to a person by a method specified in this regulation but makes an error in doing so; and

   (b) the person nonetheless receives the document or a copy of the document;

   the Minister is taken to have given the document to the person and the person is taken to have received the document:

   (c) at the time specified by this regulation for that method; or

   (d) if the person can show that he or she received the document at a later time--at that later time.

1. If it was necessary for the Minister to have recourse to reg.2.55(9) of the Regulations it would operate in the circumstances of this case in the following way. The “method” referred to in reg.2.55(9)(c) is the same “method” as referred to in reg.2.55(9)(a). The Minister here gave the Notice of Cancellation and Decision Record to the Applicant by pre-paid post but let it be assumed that he made an error in doing so. Nonetheless, the Applicant received copies of the Notice of Cancellation and Decision Record by email and he is by force of reg.2.55(9)(c) taken to have received those documents at the time specified with respect to the method of service by pre-paid post, namely 11 February 2016, or at a later time if he could show that he received the documents at a time later than that specified in relation to giving them to him by pre-paid post. However, in this case the Applicant received copies of the documents prior to 11 February 2016 by email on 2 February 2016. Accordingly, reg.2.55(9)(d) would have no work to do and the Tribunal would still have lacked jurisdiction because he did not lodge his application for review until 3 March 2016.

Conclusion

1. In my view the Applicant, on the basis of his substantive Grounds and the typographical errors, has no prospects of success in establishing that the decision of the Tribunal is affected by jurisdictional error and accordingly the Application for extension of time made by the Applicant pursuant to s.477(2) is refused.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  8 June 2018