Arshad v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs
[2019] FCCA 2075
•16 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ARSHAD v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2075 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Student visa cancellation – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a Delegate of the Minister to cancel a Student visa under s.116 of the Migration Act 1958 (Cth) for non-compliance with Condition 8202 – applicant was advised he had seven working days to lodge his merits review application with the Administrative Appeals Tribunal – applicant lodged his application for merits review with the Administrative Appeals Tribunal 17 working days outside the prescribed statutory time limit under s.347(1)(b) of the Migration Act 1958 (Cth) and reg.4.10 of the Migration Regulations 1994 (Cth) – Administrative Appeals Tribunal had no jurisdiction to review – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.66, 116, 338, 347, 494C Migration Regulations 1994 (Cth) |
| Cases cited: Calimoso v Minister for Immigration and Border Protection [2016] FCA 1335 |
| Applicant: | MUHAMAD SHOAIB ARSHAD |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3784 of 2017 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 16 July 2019 |
| Delivered at: | Sydney |
| Delivered on: | 16 July 2019 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Ms N. Milutinovic |
| Solicitors for the First Respondent: | Sparke Helmore |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The name of the First Respondent be amended from ‘Minister of Immigration and Border Protection’ to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
The Application filed in this Court on 6 December 2017 is dismissed.
The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $5,000.
Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 27 August 2019 to file any Notice of Appeal from orders 2 and 3 above in the Federal Court of Australia.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3784 of 2017
| MUHAMAD SHOAIB ARSHAD |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
The Applicant in this proceeding is a male citizen of Pakistan aged 26 years, having been on 31 December 1992.
By Application filed in this Court on 6 December 2017, he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 14 November 2017 which found that it lacked jurisdiction to review the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), dated 4 September 2017 cancelling the Applicant’s Student (Temporary) Higher Education Sector (Class TU) (Subclass 573) visa (Student visa).
Background
On 13 February 2015, the Applicant was granted a Student visa for a period of study ending on 9 September 2018, which Student visa was subject to Condition 8202(2)(a) of Sch.8 to the Migration Regulations 1994 (Cth) (Regulations) which required that he continue to be “enrolled in a registered course” of study.
By email dated 1 August 2017 the Applicant agreed with the Department of the Minister (Department) that it could communicate with him by his email address, being “[email protected]” (nominated email address).
Then by Notice of Intention to Consider Cancellation of the Student visa dated 16 August 2017, the Department gave notice to the Applicant that it appeared that he had not complied with Condition 8202(2)(a) of the Regulations in that he had not been enrolled in a registered course of study since 22 April 2016 and invited him to comment and give reasons why his Student visa should not be cancelled.
By email sent by the Applicant on 21 August 2017 from his nominated email address he informed the Department that at the end of 2015 he had become depressed, had suffered from health issues and there were problems back in Pakistan which adversely impacted on his parents sending him money for student course fees.
Decision of Delegate
By her Decision Record dated 4 September 2017, the Delegate cancelled the Student visa under s.116(1)(b) of the Migration Act 1958 (Cth) (the Act) because the Applicant was in breach of, and had not complied with, Condition 8202(2)(a) of the Regulations in that he had not been enrolled in a registered course of study for a period of one year and four months.
The evidence before me establishes that on the same date as the Decision Record of the Delegate, namely 4 September 2017, the Department emailed to the nominated email address the Decision Record itself and the Notification of Cancellation of the Student visa letter (Cancellation letter). The Cancellation letter advised the Applicant that he was entitled to apply to the Tribunal for merits review within seven working days after he was taken to have received the Delegate’s decision, which was also advised to be the end of that day, being 4 September 2017.
Tribunal Decision
On 27 September 2017, some 17 working days after receipt of the Decision Record of the Delegate, the Applicant lodged his merits review application with the Tribunal, to which application a copy of the Decision Record of the Delegate was attached. By letter dated 30 October 2017 the Tribunal wrote to the Applicant and invited his comment on whether his merits review application was a valid one.
By email dated 12 November 2017 the Applicant responded by advising the Tribunal that there were compelling and compassionate circumstances, being in substance that the reason he did not lodge his review application on time was financial hardship. Then by decision dated 14 November 2017, the Tribunal found that it had no jurisdiction in the matter and on 6 December 2017 the Applicant filed his Application in this Court.
At [1] – [4] of its Decision Record the Tribunal noted that the Delegate’s decision to cancel the Student visa was made on 4 September 2017 and the application for review was lodged with the Tribunal on 27 September 2017, and that pursuant to s.347(1)(b) of the Act and reg.4.10 of the Regulations an application for review was required to be made within seven working days after the Applicant was notified of the decision.
The Tribunal went on to find at [5] of its Decision Record that the Applicant was notified of the Delegate’s decision by the Cancellation letter, which was dispatched by email. The Tribunal further noted its letter to the Applicant dated 30 October 2017, in which it advised him that it appeared that his merits review application had not been made within the statutory time limit. The Tribunal summarised the Applicant’s response to that letter, in which he had given reasons for lodging the review application out of time, being “his father’s health”, “financial hardship” and “his own health”.
The Tribunal then found at [6] of its Decision Record that the Applicant was taken to have been notified of the Delegate’s decision on 4 September 2017 in accordance with s.494C of the Act and that accordingly the time period within which the Applicant was able to apply for review ended on 13 September 2017. As he did not apply for review until 27 September 2017 the review application was not made in accordance with the relevant legislation and the Tribunal had no jurisdiction to review the decision of the Delegate.
Grounds of Attack on Tribunal Decision in this Court
The Applicant relied on the following grounds:
1. The applicant states that he has a right to review the decision of the Delegate of the Minister and this right was deprived by the Tribunal. Therefore, the Tribunal’s decision that it had no jurisdiction to review the applicant’s application is an unreasonable application of the legislative policy which denied the applicant’s right for review and that breached rules of natural justice. The decision is therefore erroneous;
2. The Tribunal did not consider specific and relevant circumstances in relation to the applicant, and incurred a jurisdictional error by not acting within its scope of authority.
Consideration
Ground 1
This Ground asserts that the decision of the Tribunal to have had no jurisdiction is legally erroneous. However, in my view jurisdictional error is not made out. A decision to cancel a visa pursuant to s.116(1)(b) of the Act, such as the Delegate’s decision in this matter, is a Part 5 reviewable decision as defined in s.338(3).
When read together, s.347(1)(b)(i) of the Act and reg.4.10(1)(b) of the Regulations require that an application for merits review of the Delegate’s decision be lodged within seven working days of the date on which the Applicant was taken to have received the Delegate’s decision. As the Delegate’s decision was emailed to the Applicant at his nominated email address by which he agreed to be contacted by the Department, s.494C(5) operated so that the Applicant was taken to have received the decision at the end of the day on which it was sent, being 4 September 2017.
Accordingly, the prescribed period in which the Applicant could validly lodge his application for review with the Tribunal expired on 13 September 2017. As the application was not lodged until 27 September 2017, the Tribunal was correct to find that it did not have jurisdiction to review the Delegate’s decision.
I note for completeness that a matter raised by the Minister as a model litigant does not assist the Applicant.
In my view, the Cancellation letter of 4 September 2017, under the heading on page 2 of “Review Rights”, complied with the requirement of s.66(2)(d) of the Act in stating that the Delegate’s decision could be reviewed and the time in which an application for review could be made. The decision earlier this year of the Full Court of the Federal Court of Australia in DFQ17 v Minister for Immigration [2019] FCAFC 64 (DFQ17) does not avail the Applicant because there is nothing piecemeal, obscure or incomprehensible about the statement of the required information in the Cancellation letter. The relevant part of the Cancellation letter on page 2 stated as follows:
REVIEW RIGHTS
You are entitled to apply to the Administrative Appeals Tribunal for merits review of this decision. An application for merits review of this decision must be given to the AAT within seven working days after you are taken to have received this letter.
Please note this review period is prescribed in law and an application for merits review may not be accepted after that date.
As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.
In other words, by this section of the Cancellation letter the Applicant was informed that he had until 13 September 2017 to lodge his application for review, because that date was seven working days after 4 September 2017. I note that the Applicant in his review application form indicated that he was notified of the Delegate’s decision on 4 September 2017 by email.
Accordingly, as I have said, DFQ17 does not avail the Applicant. The content of the letter the subject of DFQ17 is distinguishable from the verbiage used by the Department in the Cancellation letter in this proceeding. I further note that Ms Milutinovic, who appeared for the Minister in this case, advised me from the bar table, and I accept, that in a recent case Nicholas J in the Federal Court of Australia distinguished DFQ17 on the basis that the verbiage in the case before him was similar to the verbiage in the case that I am here considering and quite different and distinguishable from the verbiage of the relevant letter which was under consideration by the Full Court in DFQ17.
I note that Nicholas J had on 12 July 2019 delivered his Reasons for Judgment in Ali v Minister for Home Affairs [2019] FCA 1102 in which relevantly at [24] – [26] and [29] his Honour had stated as follows:
[24] In the present case the Minister has submitted that the Full Court’s decision in DFQ17 is distinguishable. I accept that submission. In my view the facts of this case are different from DFQ17. In DFQ17 Perram J considered that the information as to the time within which the relevant application had to be made in that case was (at [62]) “… piecemeal, entirely obscure and essentially incomprehensible.”
[25] I am bound by DFQ17 and must follow it in so far as it concerns the proper construction of s 66(2)(d) of the Act. It is authority for the proposition that s 66(2)(d)(ii) requires that the relevant information (ie. the time in which the application for review may be made) must be clearly conveyed.
[26] The letter sent to the appellant on 21 April 2017 included the following (at pages 1-2):
Review rights
The decision can be reviewed.
The Department cannot consider your visa application any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision. An application for merits review of this decision must be given to the AAT within 21 calendar days after the day on which you are taken to have received this letter.
You may only seek merits review of this decision with the AAT if you are physically present in Australia at the time this application for merits review is made.
This review period is prescribed in law and an application for merits review may not be accepted after that date.
(emphasis added)
In my view, Ground 1 fails to establish that the decision of the Tribunal is affected by jurisdictional error.
Ground 2
This Ground presumably invokes the Applicant’s claim of compelling and compassionate circumstances, referred to in his email to the Tribunal of 12 November 2017 as a reason for lodging his review application out of time. However, unfortunately for the Applicant, there is no provision of the Act that allows the Tribunal or a Court to override or extend the time limit prescribed by s.347(1)(b) of the Act or grants any jurisdiction to entertain an application that was not made within that time limit. As Charlesworth J stated in Calimoso v Minister for Immigration and Border Protection [2016] FCA 1335 at [29]:
[29] The time period in which an application for review must be filed is absolute. The Tribunal has no discretion to extend the time in which an application may be made.
To similar effect, Marshall J had said in Patel v Minister for Immigration and Citizenship [2012] FCA 145 at [7] as follows:
[7] Section 347 of the Act permits a review of a decision of a delegate to the Tribunal. Under s 338(2) of the Act a decision to refuse to grant a Skilled Visa is reviewable in and by the Tribunal. Section 347(1)(b) provides that an application for a review must be made within the prescribed period. Regulation 4.10 of the Migration Regulations 1994 (Cth) (“the regulations”) prescribes a period of 21 days to bring an application to review a decision referred to in s 338(2) of the Act where, as here, the applicant is not in immigration detention. The Regulations do not provide for an extension of the 21 day time limit, even in special or exceptional circumstances. This appears to be a deliberate choice of the framers of the regulations. An application for review of a delegate’s decision is taken to be given to the Tribunal when it is received at the Tribunal’s registry. The appellants’ application was not received at the Tribunal’s registry until 29 March 2011.
Conclusion
In my view the Tribunal was correct for the reasons given by it to find that the application for review was lodged outside the statutory time limit and was therefore invalid. Accordingly, the Tribunal had no jurisdiction to hear the review application on its merits and it follows that the Application filed in this Court is to be dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 30 July 2019
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