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:

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

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 1459
Decision Date: 8 June 2018

CaseChat Overview and Summary

The applicant, Mr. Adhikari, sought judicial review of a decision by the Administrative Appeals Tribunal (Tribunal) which found it lacked jurisdiction to review the Minister for Immigration and Border Protection's decision to cancel his student visa. The visa cancellation was based on the applicant's breach of a condition requiring full-time enrolment in a registered course. The applicant's application to the Tribunal was made out of time, and he also required an extension of time to file his application in the Federal Court.

The court was required to determine whether the applicant had made out a case for an extension of time to file his application in the Federal Court. This involved considering whether there was an adequate explanation for the delay in filing the application and whether there were reasonable prospects of success for any substantive grounds of review. The court also considered the applicant's argument regarding the construction of regulation 2.55(9) of the Migration Regulations 1994 (Cth) and whether there was a conflict between section 347(1)(b)(i) of the Migration Act 1958 (Cth) and regulation 4.10(1)(b) of the Migration Regulations 1994 (Cth).

The court reasoned that the applicant needed an approximately eight-day extension of time to file his application in the Federal Court. It found that the Minister had complied with the relevant regulations regarding notification of the visa cancellation, both by registered post and email, despite minor typographical errors in the postal address. Pursuant to regulation 2.55(7)(a), the applicant was deemed to have received the notification seven working days after dispatch, and by regulation 2.55(8), he was deemed to have received the email at the end of the day it was sent. Evidence showed that Australia Post attempted delivery, left a collection card, and the item was ultimately returned to the sender, indicating no adequate explanation for the delay in the applicant collecting the notification or otherwise becoming aware of it.

The court concluded that there was no adequate explanation for the delay and no reasonable prospects of success for any proposed substantive grounds of review. Accordingly, the application for an extension of time was refused, and the application was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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. 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. 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). 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; andb)abhishek_adhikari72@yahoo.com 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; andb)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. 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. 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; andd)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.

Ratio Decidendi

Legal Principle Established

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