ANEJA v Minister for Immigration

[2018] FCCA 567

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANEJA v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 567

Catchwords:
MIGRATION – Migration – Review of decisions – Judicial review – time limits for commencing review application – decision of Administrative Appeals Tribunal – where Tribunal found application not given to Tribunal within prescribed time period – no jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), s.65

Applicant: VIKRAM ANEJA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 799 of 2017

Judgment of: Judge Jarrett

Hearing date: 9 February 2018

Date of Last Submission: 9 February 2018

Delivered at: Brisbane

Delivered on: 9 February 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Clayton Utz

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed on 21 August 2017 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 799 of 2017

VIKRAM ANEJA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 30 March, 2017 the applicant applied for a medical treatment (visitor) (class UB) visa under s.65 of the Migration Act 1958 (Cth). On 7 April, 2017 a delegate of the Minister refused to grant the visa. The applicant subsequently applied to the Administrative Appeals Tribunal for a review of the delegate’s decision.

2. The material before me indicates that the applicant was notified of the delegate’s decision by way of a letter sent to the applicant’s email address on the date of the decision.  The delegate was entitled to notify the applicant of the decision in that way. 

3. On 11 May, 2017 the applicant applied to the Administrative Appeals Tribunal to review the delegate’s decision.  The review to the Tribunal needed to be given to the Tribunal within 28 days of the applicant being notified of the delegate’s decision.  11 May, 2017 is more than 28 days after 7 April, 2017.  The Tribunal determined that it did not have jurisdiction because the applicant did not give his application for review to the Tribunal within the requisite time. 

4. In paragraphs 3 and 4 of the Tribunal’s statement of decision and reasons the Tribunal set out the relevant parts of the Migration Act and the Migration Regulations that dealt with the period within which the application to the Tribunal needed to be made. The Tribunal correctly stated the law, in my view, about those matters. The Tribunal also correctly noted that there is no provision, at all, for an extension of time within which to apply to the Tribunal for a review of a delegate’s decision.

5. The Tribunal found that the applicant was notified of the decision on 7 April, 2017 and that he was notified of the decision in accordance with the statutory requirements.  Those two findings are unassailable, in my view. 

6. The applicant was given the opportunity to provide some comment on the Tribunal’s preliminary view that his application was not a valid application and the Tribunal was without jurisdiction because he had not lodged his application within the required period of time.  He provided a response to the Tribunal’s preliminary view, but the response was not particularly helpful in addressing the issue raised by the Tribunal. 

7. The Tribunal found that the review application to it had not been made within the prescribed time.  Additionally the Tribunal noted that the prescribed fee for the application had not been paid and there had been no determination that the fee should be reduced.  Accordingly, for both of those reasons the Tribunal concluded that it was bereft of jurisdiction in the matter.  It dismissed the application for review. 

8. In his application for review to this Court the applicant sets out three grounds.  They are:

   1. The Tribunal had no jurisdiction to make the said decision, because its reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act.

   2. The Tribunal failed to exercise its jurisdiction, it was error, for the Tribunal to assess the application without allowing applicant to present his arguments.

   3. The Tribunal fell into jurisdiction error by misinforming itself as to the true nature of the applicant’s evidence, thereby incorrectly dealt with the review application. 

9. Even a cursory glance at the grounds of review put forward by the applicant in his application for review demonstrates that this application is an abuse of process.  The grounds of review nominated by him seem to bear no relationship to the reasons given by the Tribunal for dismissing his application.  They seem to be pro-forma-type grounds that might have been used in other applications.  None of them identify with the reasons for decision given by the Tribunal. 

10. The first respondent argues that the grounds for review do not raise a jurisdictional error.  I agree – they do not.  But more than that, even looking at the Tribunal’s decision for myself, it is difficult, to see, indeed impossible, to see where there is any error at all in the Tribunal’s decision, let alone a jurisdictional error sufficient to warrant the setting aside of that decision and the remittal of the matter to the Tribunal. 

11. I am satisfied that no jurisdictional error is established.  The application for review to this Court must be dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate: 

Date:  9 March 2018