Aulakh v Minister for Immigration

[2016] FCCA 2802

FEDERAL CIRCUIT COURT OF AUSTRALIA

AULAKH & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2802

Catchwords:
MIGRATION – Extension of time – whether reasonable and adequate explanation for the delay – whether substantive case is significantly arguable to justify an extension – extension refused.

Legislation:

Migration Act 1958 (Cth), ss.379A, 379G, 477

Cases cited:

Lee v Minister for Immigration and Citizenship [2007] FCAFC 61

Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391

First Applicant: GURINDER KAUR AULAKH

Second Applicant: RANBIR SINGH

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 959 of 2015

Judgment of: Judge McNab

Hearing date: 6 October 2016

Date of Last Submission: 6 October 2016

Delivered at: Melbourne

Delivered on: 6 October 2016

REPRESENTATION

Applicant  in person

Counsel for the Respondent: Ms Symons

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application filed 4 May 2015 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $7206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

No. MLG 959 of 2015

GURINDER KAUR AULAKH

Fist Applicant

RANBIR SINGH

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

DELIVERED EX-TEMPORE

1. I have before me an application filed on 4 May 2015 seeking an order that a decision of the Refugee Review Tribunal (as it was then) dated 27 November 2014 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas be quashed. The application was filed approximately five months out of time.

Grounds of Review

1. The applicants set out the grounds of review in the application filed

   
   

   4 May 2015 as follows:

   1.The member did not consider my application based on my circumstances at the time of my visa application along with applicable laws of the time and is therefore affected by jurisdictional errors.

   2.That my agent never provided any requested documents or informed me about the decision made by the Tribunal. Therefore, I was devoid of any opportunity for a fair opportunity to present my case.

   3.I request the honourable court to set aside the erroneous decision by the member and direct the Tribunal to consider the matter thoroughly and lawfully.

2. By orders of the court made on 19 August 2015, the applicants were given leave to file any further affidavit evidence in support of the application for an extension of time and other evidence in support of the application for an extension of time, if any. No affidavit or further evidence was provided or filed by the applicants and the first applicant said from the bar table that she was unable to afford a lawyer and, therefore, had not done so. The applicants appeared unrepresented before this court with the assistance of an interpreter from the Punjabi language. 

3. In comments made from the bar table which, with the consent of the first respondent, I am able to deal with as if it was given as evidence, the first applicant repeated in substance what she had set out in her affidavit which was filed on 4 May 2015, stating that she had not been made aware of the decision of the Tribunal. As a result of not being informed of the decision by her agent, she said that she had not been made aware of the decision of the Tribunal until about April 2015.

   
   

   She referred to an email from the Tribunal to her migration agent dated 13 November 2014 which was not directly relevant to the evidence that she gave that she had not been made aware of the decision until April 2015.[1] 

   [1] Court Book 197

4. In dealing with this matter, I must consider that an application to extend the period of time in which the application may be filed. Section 477(2) of the Migration Act 1958 (Cth) (“the Act”) provides that the court may, by order, extend the 35 day period prescribed under s.477(1) of the Act as the court considers appropriate, if:

   (a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

5. In considering whether it is in the interests of the administration of justice, there are numerous authorities to the effect that the factors to consider include:

   a)whether there has been a reasonable and adequate explanation for the applicants’ delay;

   b)whether there is any prejudice to the Minister; and

   c)whether the applicants’ substantive case for judicial review is sufficiently arguable to justify the extension of time.[2]

   [2] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [52];[50] and [63]

6. In relation to the first ground, the first respondent has submitted that the period of five months is not an insignificant time and that the explanation provided by the applicants is not a reasonable or adequate explanation for that delay. The reason asserted is that the applicants’ agent failed to inform her of the decision and that she only became aware of the decision in April 2015. There has been no suggestion that the agent has behaved fraudulently and there is no adequate explanation provided by the first applicant as to why the first named applicant has not made her own inquiries with the agent or with the Tribunal in circumstances when it was her application before the Tribunal to review a decision of the delegate. It was an application in which she was interested in and there’s no evidence that she took any adequate or sufficient interest in that application. Further ss.379A and 379G have the effect that sending documents to the applicant’s authorised representative will be sufficient for the Tribunal to have given the documents to the applicant.[3]

   [3] Lee v Minister for Immigration and Citizenship [2007] FCAFC 61

7. In my view, no reasonable or adequate explanation has been provided for the delay in filing this application.

8. No particular prejudice has been pointed to by the Minister. However, that of itself is not a ground for extending the time pursuant to s.477(2) of the Act.

9. In terms of whether the applicants’ substantive case for judicial review is sufficiently arguable, the principal issue is whether the Tribunal correctly applied the law.

The Tribunal’s Decision

1. Having been taken to the Tribunal’s decision in the Court Book, I am satisfied that the summary of the department’s records at [6] of that decision accurately reflected the record as follows:[4]

   [4] Court Book 227 to 235

   6. The Tribunal noted that its and the Department's records indicated that:

   •the applicants applied to the Department for subclass 485 (Skilled Graduate) visas on 9 December 2009 on the basis that the first named applicant was the primary applicant and the second named applicant was included as her family unit member (spouse);

   •in addition, the applicants applied to the Department for subclass 487 (Skilled Regional Sponsored) visas on 18 December 2009 again on the basis that the first named applicant was the primary applicant and the second named applicant was included as her family unit member (spouse);

   •the Department refused the applicants' subclass 485 visa applications on 28 December 2012 as it found that the first named applicant did not meet c1.485.224 on the basis that she failed to satisfy Public Interest Criterion (PIC) 4020( l) and there were no grounds to exercise the waiver in PIC 4020(4). The Department found that the first named applicant had provided a bogus document, in the form of a skill assessment from Trades Recognition Australia (TRA) for her nominated occupation that was based on a fraudulent work reference;

   •the second named applicant was also refused a visa as the Department found that he failed to satisfy cl.485.321 as he was not the family unit member of a person who held a subclass 485 visa;

   •the applicants applied to the Tribunal on 18 January 2013 for review of the Department's decision to refuse their subclass 485 (Skilled Graduate) visa applications;

   •on 6 August 2013, the Department refused their subclass 487 (Skilled-Regional Sponsored) visa applications on the basis that the first named applicant did not satisfy c1.487.228, which required her to meet (amongst other requirements) PIC 4020. TheDepartment found that she did not meet PIC 4020(2), which requires that she, and each family unit member, have not, during the period starting 3 years before making the subclass 487 visa application and ending when a decision is made to grant or refuse the subclass 487 visas, been previously refused visas on the basis of having provided a bogus document (or false and misleading information in a material particular) in relation to the previous visa applications. The Department found that the first named applicant had been refused a subclass 485 visa in the relevant period on the basis-of having provided a bogus document, and thus she did not satisfy PIC 4020(2). She had not provided any evidence addressing the waiver provision in PIC 4020(4) and thus this did not apply. She therefore failed PIC 4020 and did not meet c1.487.228;

   •the second named applicant was found not to meet the secondary subclass 487 visa criteria requiring him to be a family unit member of a person who- held a subclass 487 visa; and

   •the applicants applied to the Tribunal on 27 August 2013 for review of the Department's decision to refuse their subclass 487 (Skilled Regional Sponsored) visa applications.

2. It is noted that the applicants were aware of the grounds that were subsequently upheld by the Tribunal, as they were identified in the decision of a delegate of the Minister on 6 August 2013 and a copy of that decision was attached to the application to the Tribunal.

3. At the time of the application to the Tribunal for review of the delegate’s decision which was made on 27 August 2013, the applicants were represented by a registered migration agent who was authorised to be their representative and was the authorised recipient of the correspondence from the Tribunal.[5]

   [5] Tribunal’s decision at [4].

4. The decision of the Tribunal from [7] to [17] sets out the conduct of the Tribunal in seeking information from the applicants and inviting the applicants to make submissions to the Tribunal. At [12] the Tribunal noted that the applicant sought an extension of time to make submissions or to seek an extension of time to do so by 11 November 2014.

5. On 13 November 2014, the Tribunal sent an email to the applicants’ agent advising that the view of the presiding member was that as neither the applicants nor the agent had responded or requested an extension of time to respond to the request for information by

   
   

   11 November 2014. The applicants had lost their entitlement to a hearing.[6] The Tribunal had discharged its obligations to provide procedural fairness.

   [6] Citing Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413

6. The terms of that letter which are found at page 197 provides as follows:

   The Presiding Member does not intend to defer making a decision unless there are strong reasons as to why a submission on the waiver has not already been prepared, given that you and the review applicants have been aware of the issue in dispute since
   25 February 2013, when the Department of Immigration and Border Protection (DIBP) sent a natural justice letter in relation to this case.

7. The submission was made and I accept the submission that that correspondence did not foreclose the applicant from making any further submission on the waiver, however, no further submission was made. The Tribunal proceeded to make a decision on 27 November 2014. Paragraph 18 of the decision identifies the claims made by the applicant and correctly identifies the issue as whether the first named applicant meets the Public Interest Criteria 4020 as required by cl.487.228 for the grant of visa.

8. The Tribunal found that cl.4020(2) was not met by the applicants and did so on the basis for the reasons set out in [21] of the decision as follows:

   Based on the information contained in the Department and Tribunal's records, the Tribunal finds that:

   •   the second named applicant is the spouse of the first named applicant, and is therefore a member of his family unit (as defined in r.1.12);

   •   the first named applicant was born on 7 May 1987 and the second named applicant was born on 13 October 1981. They were both over 18 at the time of the relevant visa applications set out below;

   •   the applicants made applications for subclass 485 visas to the Department on 9 December 2009;

   •   the applicants made their applications for subclass 487 visas on 18 December 2009;

   •   the applicants were refused the subclass 485 visas by a delegate of the Minister on 28 December 2012, on the basis that the first named applicant did not satisfy c1.485.224 because she did not meet PIC 4020(1). The basis for that finding was that the delegate's conclusion that the first named applicant had provided a bogus document to the Department. The delegate found no reason to exercise the waiver provision in PIC 4020(4);

   •   on 21 October 2014, the Tribunal affirmed the decisions to refuse to grant the applicants subclass 485 visas on the basis that the first named applicant .did. not meet c1.485.224 because she did not satisfy PIC 4020(l) and there were no reasons to exercise the waiver in PIC 4020(4) and that the second named applicant did not meet the primary or secondary visa criteria; and

   •   therefore, the first named applicant has been refused a visa (the subclass 485 visa) in the relevant period because of a failure to satisfy c1.4020(1).

9. In my view, the Tribunal correctly identified the issues, gave the applicants the opportunity to make submissions to the Tribunal in relation to the matters that were under consideration and considered the matters before it which it was required to do and there is no error discernible in the decision of the Tribunal. On my review of the decision made for the purposes of determining whether the application discloses arguable grounds, the Tribunal’s finding that the applicant was unable to satisfy PIC 4020(2) was open to it on the evidence and no reasonably arguable ground is disclosed.

Conclusion

1. In those circumstances, I am of the view that the applicants have not satisfied the court that there are reasonably arguable grounds, such as it to be necessary in the interests of the administration of justice to extend time, or that there is a reasonable explanation for the delay in filing this application. In those circumstances, I dismiss the applicants’ application to extend time.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge McNab.

Date: 7 November 2016