Ayutthaya v Minister for Immigration
[2017] FCCA 1577
•11 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AYUTTHAYA v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1577 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for a sixth student visa – assertion of jurisdictional error on the part of Administrative Appeals Tribunal in finding it had no jurisdiction because application for review out of time – no jurisdictional error – application for judicial review dismissed. |
| Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.5, 11 Migration Act 1958 (Cth), ss.347, 412, 476, 494B, 494C Migration Regulations 1994 (Cth) |
| Cases cited: Cheng v Minister for Immigration and Citizenship [2011] FCA 1290 Edwards v Santos Ltd (2011) 242 CLR 421 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 |
| Applicant: | SUPAWADEE PALAKAWONG NA AYUTTHAYA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1666 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 14 September 2016 |
| Delivered at: | Sydney |
| Delivered on: | 11 July 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Saenphoumy |
| Solicitors for the Applicant: | VCD Lawyers |
| Counsel for the Respondents: | Mr N Buck |
| Solicitors for the Respondents: | Sparke Helmore |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 29 June 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1666 of 2016
| SUPAWADEE PALAKAWONG NA AYUTTHAYA |
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 female citizen of Thailand aged 43 years, having been born on 18 August 1973.
On 17 March 2016 a Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) refused the grant of a Student (Temporary) (Class TU) Vocational Education and Training Sector (Subclass 572) visa (Student visa) to the Applicant due to the Delegate not being satisfied that the Applicant was a genuine applicant for entry and stay as a student for the purposes of cl.572.223 of Sch.2 to the Migration Regulations 1994 (Cth) (Regulations).
By Application filed in this Court on 29 June 2016 she seeks to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 2 June 2016 which found that it had no jurisdiction to review the decision of the Delegate.
I note that a mistaken denial of jurisdiction by a Court is a jurisdictional error attracting a writ of certiorari: Edwards v Santos Ltd (2011) 242 CLR 421. In my view, in the present circumstances the Tribunal was in an analogous position to a Court.
Decision of Delegate
The Delegate found that the Applicant had made application for, and had been granted, five previous student visas before making an application for her sixth such visa on 8 October 2015. The Delegate recorded that the Applicant had first been granted a student visa offshore on 26 February 2008 and had arrived in Australia on 10 March 2009.
The Delegate found that the Applicant had been in Australia for an extended period of time and had undertaken only short and inexpensive Vocational Education & Training courses. The Delegate was not satisfied that the Applicant was not using the student visa program as a means of maintaining ongoing residence in Australia.
In the result, the Delegate was not satisfied that the Applicant was a genuine applicant for entry and stay as a student because she was not satisfied that the Applicant intended to genuinely stay in Australia temporarily, having regard to the Applicant’s circumstances and immigration history and other relevant matters and accordingly refused to grant a Student visa to the Applicant.
Tribunal Decision
The Applicant lodged her application for merits review of the Delegate’s decision with the Tribunal on 20 April 2016.
The Tribunal in its Decision Record of 2 June 2016 found that for a Part 5-reviewable decision (such as was the decision of the Delegate) the combined effect of s.347(1)(b) of the Migration Act 1958 (Cth) (Act) and reg.4.10 of the Regulations was that the Applicant’s application had to be made within 21 days after the Applicant had been notified of the Delegate’s decision in accordance with the statutory requirements.
The Tribunal found on the material before it that the Applicant had been notified of the Delegate’s decision by letter dated 17 March 2016 sent by email and therefore that the Applicant was taken to have been notified of the Delegate’s decision on 17 March 2016 which meant that the Applicant’s application for review had to be lodged with the Tribunal on or before 7 April 2016.
As the application for review had not been lodged until 20 April 2016 the Tribunal found that it had no jurisdiction.
Grounds for Judicial Review in this Court
In her Application filed in this Court the Applicant relied on the following Grounds:
1.Section 474(4) of Migration Act 1958, the decision under review is a “privative clause decision” and that it is a decision that can be reviewed by the Court.
2.The Administrative Appeal Tribunal has made an error in law in strictly applying Section 347 (l)(b) of MigrationAct 1958 and r.4.10 of Migration Regulation (sic) 1994 (the Regulations) in stating that it has no jurisdiction to hear in this appeal for reason that the appeal was lodged outside 21 days appeal period.
3.Due to serious illness suffered by visa applicant during the period of closing of appealable period which had prevented visa applicant from lodging the appeal within 21 days and for reason, that such illness was of a serious and it was beyond visa's applicant's control, visa applicant should be allowed to lodge the appeal against the decision of Department of Immigration and Border Protection to refuse her student visa, outside 21 days period.
4.It is in the interest of justice that the applicant should be allowed to lodge her appeal against the decision outside 21 days period.
5.Due to her illness, visa applicant should be granted procedure fairness by being allowed to lodge her appeal at Migration Review Tribunal outside 21 days period.
At the hearing Mr Saenphoumy appeared for the Applicant and Mr Buck appeared for the Minister.
Relevant Facts and Circumstances
Mr Saenphoumy accepted at the hearing and it was common ground in this proceeding that:
a)for the purposes of s.347(1) of the Act and reg.4.10 of the Regulations, the Applicant had received notice of the Delegate’s decision on 17 March 2016, as found by the Tribunal;
b)for the purposes of s.347(1) of the Act and reg.4.10 of the Regulations, the Applicant had 21 days after 17 March 2016 to give to the Tribunal her application for review of the Delegate’s decision;
c)as found by the Tribunal, that 21 day period ended on 7 April 2016;
d)as found by the Tribunal, the Applicant did not lodge her application for review until 20 April 2016; and
e)the Applicant lodged her application for review to the Tribunal “outside the time as required by law”.
I further note that during her cross-examination, the Applicant agreed that at the time she received notice of the Delegate’s decision she knew that she had 21 days to lodge an application for review with the Tribunal.
Notwithstanding the agreed facts and admissions recorded in [14]-[15] above, Mr Saenphoumy submitted that this Court had a discretion to grant an extension of time to the Applicant to lodge her application for review with the Tribunal if it was satisfied that it was necessary in the interests of the administration of justice to do so and that in deciding whether or not to grant an extension it could take into account fair and equitable considerations.
Mr Saenphoumy further submitted that the factual basis which this Court should rely upon in granting an extension of time was the illness of the Applicant for a 5 day period during the 21 day period after 17 March 2016.
The evidence of the Applicant’s illness during this period comprised:
a)a statutory declaration of the Applicant declared on 19 April 2016 and forwarded to the Tribunal as part of her application for review which asserted that she had been gravely ill between 4 April 2016 and 8 April 2016 and she had been confined to her bed suffering from a high fever and vomiting and that this had prevented her from giving instructions to her migration agent to lodge her application to the Tribunal;
b)a Medical Certificate from a Dr Vandebona dated 14 April 2016 which was 6 days after her claimed period of illness, also forwarded to the Tribunal with the application for review, which certified that on 14 April 2016 the Applicant had “stated that she was unwell, fever, vomiting… unfit to continue her usual occupation from 4/04/2016 to 8/04/2016 inclusive”;
c)an affidavit dated 11 September 2016 of Ms Khuwatchanakul, who was a co-sharer of the Applicant’s home unit, who gave evidence of observing that the Applicant had been sick and vomiting and had high fever between 4 April 2016 and 8 April 2016.
Consideration
Ground 1
No submissions were made in support of this Ground either in Mr Saenphoumy’s Written Submissions or at the hearing and it has not been made clear on behalf of the Applicant how this Ground could lead to a decision that the Tribunal’s decision was affected by jurisdictional error. It is not contended on behalf of the Minister that this Court is not entitled to exercise the jurisdiction vested in it under s.476 of the Act to review the Tribunal’s decision that it lacked jurisdiction.
Grounds 2-5
These Grounds may be dealt with together because they are based on the contention that this Court could and should extend the time for the Applicant to lodge with the Tribunal her application for review beyond the prescribed 21 day period because of the illness of the Applicant during that period.
However, there is an authoritative body of law against that submission, which I must follow. The following paragraph from the judgment of Flick J in Cheng v Minister for Immigration and Citizenship [2011] FCA 1290 succinctly summarises the law relating to the “prescribed period” provided for by s.347(1) of the Act in the present context:-
[16]Section 347(1) provides the manner in which and the time within which an application for review is to be made to the Migration Review Tribunal. That subsection provides in part as follows:
(1) An application for review of an MRT-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 MRT-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A) – 28 days after the notification of the decision; or
…
The provision of present relevance is s 338(2). Section 347(1)(b) refers to a “period ending not later than” 28 days after the notification of a decision, including one “covered by” s 338(2). Regulation 4.10(1)(a) of the Migration Regulations specifies a 21 day period. That regulation relevantly provides:
(1) For paragraph 347 (1) (b) of the Act, the period in which an application for review of an MRT-reviewable decision must be given to the Tribunal:
(a) if the MRT-reviewable decision is mentioned in subsection 338 (2) or (7A) of the Act – starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received; or
…
An application received outside the time limit prescribed has been held not to be a valid application and one that the Tribunal does not have jurisdiction to review: e.g., Keo v Minister for Immigration and Citizenship [2009] FCA 676, 177 FCR 479. See also: Lee v Minister for Immigration and Multicultural Affairs [2002] FCA 303. The time limits imposed have been described as “stringent”: Han v Minister for Immigration and Multicultural Affairs [2000] FCA 1071 at [21], 103 FCR 517 at 521 per Sackville J.
The same stringency applies to s.412(1) of the Act which is the mirror image of s.347(1) applicable to Part 7-reviewable decisions. Consistently with what Flick J stated of s.347(1), Robertson J in SZULH v Minister for Immigration and Border Protection [2015] FCA 835 at [17] stated as follows:
For completeness, I note that in Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324; (2000) 97 FCR 407, Heerey J at [31] construed s 412 as making plain that if an application is not made in accordance with s 412, the application is not a valid one and the Tribunal has no jurisdiction to review the primary decision under s 414. See also Finkelstein J at [44 ff] and Dowsett J at [55]. That view was affirmed by a Full Court in VEAN v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 311; 133 FCR 570 at [33] per Gray, Whitlam and Mansfield JJ. Fernando and VEAN have been applied in a number of decisions, for example, SZJMY v Minister for Immigration and Citizenship [2008] FCA 708 at [9]–[10] per Flick J and SZQVV v Minister for Immigration and Citizenship [2012] FCA 1471 at [10] per Flick J.
Unfortunately for the Applicant, this means that the alleged 5-day period of sickness from 4 April 2016 to 8 April 2016 is legally irrelevant. The application for review lodged by the Applicant was not received within the prescribed time limit and was therefore not a valid application for review. The Tribunal correctly held that it did not have jurisdiction to review the Delegate’s decision in this case.
I record that Mr Saenphoumy relied in support of his submissions on the decision of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (Hunter Valley Developments) and the decision of the Full Court of the Federal Court in Jess v Scott (1986) 12 FCR 187 (Jess).
Those cases do not assist Mr Saenphoumy’s argument in this context. They involve different statutory regimes and the consideration of specific powers granted to the Federal Court to enlarge relevant prescribed periods for the commencement of proceedings. In Hunter Valley Developments, Wilcox J was considering s.11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) which gave the Federal Court an express power to enlarge the prescribed period for an application for review under s.5 of that Act to be brought in the Federal Court. Jess involved consideration of the existence of “special reasons” justifying the grant of leave to appeal out of time from a decision of a primary judge to the Full Court of the Federal Court of Australia. Neither of those cases are relevant to the proper construction of s.347(1)(b) of the Act and reg.4.10 of the Regulations in this case.
The Tribunal had no discretion to extend time beyond the prescribed 21 day limit but even if it had possessed such a discretion, any claim for that discretion to be exercised in favour of the Applicant, based on the specific circumstances of this case, would appear to have been weak on any view of the matter. At the date she received the Delegate’s decision, the Applicant knew that she had a 21 day period to lodge an application for review with the Tribunal. She has never explained why she did not lodge her application for review between receipt of the Delegate’s decision on 17 March 2016 and 3 April 2016. She has only claimed illness for 5 days of the 21 day period in which she had to lodge an application for review.
In SZKUO v Minister for Immigration and Citizenship (2009) 107 ALD 80 Flick J was considering an exercise of discretion in relation to an application for an extension of time to appeal from the Federal Magistrates Court to the Federal Court, where the applicant for extension of time had only explained part of the delay. At 84 [20] his Honour stated as follows:
Notwithstanding the calling of further oral evidence, there remains an absence of any real explanation for the whole of the delay. Any discretion, it is considered, should be exercised against the applicant. Any explanation which is put forward as an explanation for delay must set forth an explanation for the entirety of the delay; an explanation for only part of the delay may normally be regarded as insufficient: QAAH at [7]; SZKSM v Minister for Immigration and Citizenship [2008] FCA 632 at [20]; SZGND v Minister for Immigration and Citizenship [2008] FCA 680 at [22]. There must be an explanation “for the whole of the delay”: SZKTN v Minister for Immigration and Citizenship [2008] FCA 633 at [19] .
In this case, the Applicant has only explained a delay of 5 days out of the 21 days she had to lodge her application for review to the Tribunal. Further, she has not led any probative evidence to establish how or in what way her sickness during the 5 day period rendered her incapable of giving instructions to her migration agent. The Medical Certificate from Dr Vandebona seems studious in merely recording that the Applicant “stated that she was unwell, fever, vomiting”. The affidavit evidence of Ms Khuwatchanakul does also not satisfactorily explain why instructions to lodge an application for review could not have been given to the Applicant’s migration agent.
Nevertheless, it is unnecessary to further consider this evidence, which might have gone to the exercise of a discretion if such had existed.
Typographical Error in Tribunal Decision
At [3] of its Decision Record the Tribunal correctly found that the combined effect of s.347(1)(b) of the Act and reg.4.10 of the Regulations meant that the application for review of the Delegate’s decision in this case had to be given to the Tribunal within 21 days.
At [5] the Tribunal correctly found that the prescribed period within which the application for review could be given to the Tribunal ended on 7 April 2016.
However, [5] also erroneously and inaptly referred to reg.2.55 (which concerns the giving of documents relating to the cancellation or revocation of cancellation of visas) as providing the basis for when the Applicant was deemed to have received the Delegate’s decision for the purpose of calculating the 21 day period after notification of the Delegate’s decision to the Applicant.
The Tribunal should have referred to reg.2.16 of the Regulations, which relevantly provided that the Applicant must be notified of the Delegate’s decision by one of the methods specified in s.494B of the Act, which in this instance meant that s.494B(5) permitted notification of the Delegate’s decision by email and with s.494C(5) deeming the Applicant to have received the Delegate’s decision at the end of the day on which the Delegate’s decision was emailed, being in this case on 17 March 2016.
The matter was raised in the Minister’s Written Submissions as a model litigant. The Applicant did not submit or argue that the erroneous reference in [5] of the Decision Record constituted jurisdictional error and in my view it could not properly do so.
The Tribunal’s reference to reg.2.55 rather than reg.2.16 is a mere clerical or typographical error which is not jurisdictional in nature. In any event, erroneous reference to reg.2.55 did not affect the outcome of the Tribunal’s decision that it lacked jurisdiction. On any basis, the application for review was outside the prescribed time limit of 21 days: Pokharel v Minister for Immigration and Border Protection [2016] FCAFC 34 at [48]-[50] per Buchanan, Perram and Rangiah JJ.
Disposition
The Applicant has failed to show that the Tribunal’s decision was affected by jurisdictional error and the Application filed in this Court on 29 June 2016 must be dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 11 July 2017
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