Brar v Minister for Immigration
[2018] FCCA 2272
•2 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRAR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2272 |
| Catchwords: MIGRATION – Application for judicial review of decision of decision of Administrative Appeals Tribunal that it did not have jurisdiction to review decision because it was made more than 21 days after decision notified to the applicant – application dismissed. |
| Legislation: Evidence Act 1995 (Cth) ss.59, 71 Migration Act 1958 (Cth), ss.66(1), 67(1), 338, 347, 348(1), s.494B, s.494C, 494D Migration Regulations 1994 (Cth) regs.2.16, 4.10 |
| Cases cited: Romero v Minister for Home Affairs [2018] FCCA 1116 SZIUK v Minister for Immigration and Citizenship [2007] FCA 226 SZQVV v Minister for Immigration and Citizenship [2012] FCA 871 |
| Applicant: | BHAGWAN SINGH BRAR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 670 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 2 August 2018 |
| Date of Last Submission: | 2 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 2 August 2018 |
REPRESENTATION
| Applicant in person |
| Solicitor for the First Respondent: | Ms S Sangha |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 670 of 2017
| BHAGWAN SINGH BRAR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore – revised from transcript)
The applicant seeks judicial review of a decision made by the second respondent (Tribunal) that it did not have jurisdiction to review a decision made by a delegate of the first respondent (Minister) not to grant the applicant a Student (Temporary) Class TU visa (Student visa). The delegate’s decision is recorded in a document titled “Decision Record” and dated 6 December 2016 (Decision).
The applicant lodged his application to the Tribunal for review of the Decision on 5 January 2017. The Tribunal was of the view that its jurisdiction to review the Decision could arise only if the applicant applied for review of the Decision within 21 days after the applicant was notified of the Decision; but, so the Tribunal found, the applicant was notified of the decision more than 21 days before the applicant applied to the Tribunal for review. Before I consider the grounds stated in the application, it will be necessary to identify particular provisions of the Migration Act 1958 (Cth) (Act) and the Migration Regulations 1994 (Cth) (Regulations) because the right to apply for review of a delegate’s decision refusing the grant of a visa is one conferred by the Act, and the time by which such applications can be made to the Tribunal is determined by the Act and the Regulations.
The Decision is a “Part 5 – Reviewable Decision” as that expression is defined in s.338 of the Act. That means the Tribunal would have come under an obligation to review the Decision under s.348(1) of the Act if the application the applicant made to the Tribunal on 5 January 2017 could be said to have been “properly made under” s.347 of the Act. In Romero v Minister for Home Affairs[1] I identified and considered the provisions of the Act and Regulations that are relevant to determining when an application to the Tribunal is properly made under s.347 of the Act. I there said as follows:
[1] [2018] FCCA 1116
[4] An essential element of an application’s being “properly made under” s.347 of the Act is the requirement prescribed by s.347(1)(b) of the Act, namely, that an application for review of a Part 5-reviewable decision must be made within the “prescribed period”.[2] The period for making an application for review of the class of Part 5-reviewable decisions of which the Decision is a member has been prescribed by reg.4.10(1)(a) of the Migration Regulations 1994 (Cth) (Regulations). It is the period that “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”.
[2] SZQVV v Minister for Immigration and Citizenship [2012] FCA 871, at [55] where Greenwood J, speaking of s.414 of the Act (being equivalent to s.348 of the Act), said: “The enlivening of the jurisdiction is dependent upon the jurisdictional fact of whether the application was given to the Tribunal within the prescribed statutory time.”
[5] The word “receives notice of the decision” directs attention to s.66(1) of the Act. That subsection provides that when the Minister grants or refuses to grant a visa he or she is to notify the applicant of the decision “in the prescribed way”. Section 66 must be read with s.67(1) of the Act which provides, among other things, that a decision to refuse to grant a visa is taken to be made by the Minister causing a record to be made of the decision. The effect of s.67(1) of the Act, therefore, is to require a decision made by the Minister not to grant a visa to be recorded in a document; and that the requirement under s.66(1) of the Act that the Minister notify the applicant of the Minister’s decision not to grant a visa necessarily implies that the notification is to be effected by the Minister giving the applicant the document recording the Minister’s decision.
[6] This is borne out by reg.2.16(1) of the Regulations. It provides that, for the purposes of s.66(1) of the Act, reg.2.16 of the Regulations “sets out the way of notifying a person of a decision to grant or refuse to grant a visa”. Paragraph 3 of reg.2.16 provides that the “Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act”. Section 494B specifies the methods by which the Minister, where required or permitted by the Act or the Regulations to do so, must give a document to a recipient. The effect of these provisions, therefore, is that the Minister must notify the applicant of his or her decision refusing to grant the visa by recording the decision in a document and giving the document to the applicant by one of the methods prescribed by s.494B of the Act.
[7] Section 494B of the Act specifies a number of methods, two of which are relevant to the application before me. . . .
[8] The second method is that specified by s.494B(5) of the Act which (relevantly):
consists of the Minister transmitting the document by:
(a)fax; or
(b)email; or
(c)other electronic means;
to:
(d)the last fax number, email address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents . . .
[9] Section 494C of the Act specifies the time by which the person to whom notification of the decision refusing to grant a visa has been given using the methods prescribed by s.494B of the Act is to be taken to have received the notification. . . . Where notification has been given by the method prescribed by s.494B(5) of the Act then, under s.494C(5), the person is taken to have received the document at the end of the day on which the document is transmitted.
These provisions assume notification to an applicant. Section 494D of the Act, however, deals with communications with an applicant who notifies the Minister that another person is authorised to receive documents. Subsections (1) and (2) of s.494D of the Act provide as follows:
(1) If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to receive documents in connection with specified matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents in connection with those matters that the Minister would otherwise have given to the first person.
(2) If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. However, this does not prevent the Minister giving the first person a copy of the document.
From this summary of the relevant provisions it will be seen that whether or not the applicant in the case before me made his application for review by the Tribunal within 21 days of his being notified of the decision depends on what the evidence before me reveals about whether the Decision was notified to the applicant or any authorised recipient, whether it was notified to the applicant or authorised recipient using one or more of the methods specified in s.494B of the Act, and, if so, when, as a result of the application of the deeming provisions specified by s.494C of the Act, the applicant is to be taken to have been notified of the decision.
The starting point is the form by which the applicant applied for the Student visa. In the application the applicant authorised another person to receive communications on his behalf. That person is the applicant’s migration agent. In that section in which the applicant or his agent provided details of the applicant’s authorised recipient, there was included an email address immediately after the words “email address” appearing in the following set of words:
The department prefers to communicate electronically. By providing an email address below, the authorised recipient agrees correspondence will be sent to: email address: [email address specified].
There is in evidence, a copy of a letter dated 6 December 2016 informing the applicant that he did not “satisfy the provisions of the Migration Regulations 1994”, and which attached a decision record. The decision record is the document that records the Decision. On the first page of the letter the following is stated:
Transmission method email sent to [email address specified]
The email address specified is that provided in the application for the student visa to which I have already referred. There is no dispute, on the evidence before me, that the decision and the letter were sent to and received by the applicant on 6 December 2016. The Minister, however, also relies on an affidavit directed to proving that the email was sent. The affidavit deposes to the existence of the “Enterprise Correspondence Portal” (ECP) that is used by the Department of Home Affairs (Department), and deposes to a belief that the ECP is used by the Department to send correspondence to visa applicants. The affidavit annexes a screenshot from the ECP. The screenshot relevantly contains the following information:
Recipient
Channel
Address
Recipient Type
[Name of agent]
[email address]
Send to
Business Context
Student (Temporary)
Address To
[Name of applicant]
Subject
IMMI Refusal Notification with Decision Record
Sender
[reference]
Sender’s email
[email address]
Date sent:
14:1:06 06 December 2016
The screenshot is, in my opinion, a “document recording an electronic communication” as that expression is used in s.71 of the Evidence Act 1995 (Cth) (Evidence Act), being both a “document” as defined in the Dictionary to the Evidence Act and an “electronic communication” as that expression is defined in the Dictionary. That means that the hearsay rule as provided for by s.59 of the Evidence Act does not apply to representations contained in the screenshot insofar as any representation in that document is a representation as to the identity of the person from whom or on whose behalf the communication was sent or the date on which or the time at which the communication was sent or the destination of the communication or the identity of the person to whom the communication was addressed. I am satisfied, therefore, that the letter attaching the Decision dated 6 December 2016 was sent on that day to the email address of the applicant’s authorised recipient. It follows, therefore, that the applicant was required to make his application to the Tribunal within 21 days after 6 December 2016, that day being 28 December 2016.
The Tribunal responded to the applicant’s lodging the application for review on 5 January 2017 by a letter sent on 17 January 2017. In that letter it was stated that the author of the letter, who wrote on behalf of the Registrar, was of the view that the application the applicant lodged was not a valid application because it was not lodged within the relevant time limit. The letter stated that the time limit is 21 days from the day on which the applicant was taken to have been notified of the primary decision. After setting out further matters relevant to the time the Decision was said to have been given to the applicant, the letter invited the applicant to make any comments on whether a valid application had been made, and he was invited to do so in writing by 31 January 2017. The letter stated that any comments the applicant might make will be referred to a member of the Tribunal to make a decision on the applicant’s application; and that if the member decides that the applicant did not make a valid application, the applicant would be given a written statement of decision and reasons.
The applicant accepted the offer made by the Tribunal in its letter of 17 January 2017 by sending an email on 28 January 2017. In that email the applicant stated as follows:
I am writing in relation to my application for reviewing by the Migration and Refugee Division of the AAT. I apologise that I did not lodge my application before 28 December 2016, this is because I couldn’t arrange the fees of application and fees of my migration agent until 24 December and after that there were holidays of Christmas and New Year till 3rd January 2017. I couldn’t follow up with migration agent who was out of Sydney at that time. And I was also misguided by my migration agent that I have time till 6th January 2017 for my application. I really apologise for lodge my application out of time. I was misunderstanding between me and my migration agent and it was also some financial issues. Please make it a valid application.
The next thing that occurred was that the Tribunal, on 3 February 2017, sent to the applicant a decision record recording a decision made on 2 February 2017 by the Tribunal. In that decision the Tribunal concluded it did not have jurisdiction in the matter, that matter being, of course, the applicant’s application for review which he lodged on 5 January 2017. That decision was supported by a short statement of reasons.
The reasons of the Tribunal recounted the fact that a decision had been made by the delegate to refuse to grant the applicant a student visa, that the applicant lodged an application for review on 5 January 2017, that under s.347(1)(b) of the Act and reg.4.10 of the Regulations, an application for review of that decision had to be made within 21 days after the applicant was notified of the Decision, that the material before the Tribunal indicated the applicant was notified of the Decision on 6 December 2016 and that, therefore, the prescribed period within which the review had to be made “ended on 30 December 2016”. That is an error. As I have already noted the period by which the applicant was required to make his application was 28 December, rather than 30 December 2016. That error, which appears to be either a typographical error or a simple miscalculation, has no legal relevance because whether or not the Tribunal had jurisdiction in this case is a jurisdictional fact which is a matter which this Court can determine.
The Tribunal’s reasons also referred to the Tribunal having invited the applicant to make comment on whether the application that he had made was a valid application. And it referred to the applicant’s response on 28 January 2017 stating that he could not arrange the fees and his migration agent misinformed him of the date.
That then leads me to the application that is before me. The application was commenced by an application filed on 7 March 2017. The application contains two grounds and they are as follows:
Ground 1
1. The Tribunal committed jurisdictional error when it denied the Applicant a procedural fairness and constructively failed to exercise jurisdiction and / or misconstrued the criteria that I had compelling grounds due to misguidance and negligence of migration agent about the time to apply Administration Appeal Tribunal ‘AAT’ application of the decision made by Department of Immigration and Border protection ‘DIBP’.
Particulars
1.1 The compelling reasons were exists due to misguidance of time to apply for AAT application by my previous migration agent, ‘Study international’ on Kent Street, Sydney 2000.
1.2 The Tribunal failed to take into account the previous education and migration consultant I have applied through was so negligent that has deprived me of successful AAT application.
1.3 The Tribunal failed to consider the circumstances in deciding jurisdiction surrounding my appeal due to Christmas holidays and wrong deadline given by migration agent.
Ground 2
1. The Tribunal committed jurisdictional error when it failed to consider the reasons of refusal by DIBP and ignored relevant considerations and constructively failed to exercise jurisdiction and / or misconstruted the criteria or applied wrong test regarding refusal of student visa application.
Particulars
1.1 The AAT overlooked that the DIBP failed to take into account about my previous study completion in Australia.
1.2 The AAT failed to consider the issue raised by DIBP about the process of reissuing of current COE by course provider.
1.3 The AAT also failed to take into consideration of reason of refusal that DIBP wrongly interpreted the Genuine Temporary Entrant criteria
The first ground complains of denial of procedural fairness, a failure to exercise jurisdiction, and also refers to the applicant’s having compelling grounds due to the misguidance and negligence of his migration agent. The ground also refers to the Tribunal’s failing to take into account the applicant’s previous education and the fact that Christmas holidays intervened during the time by which he may have been required to file an application for review.
Ground one assumes that the Tribunal has power to extend the 21 day period prescribed by the combined operation of s.347 of the Act and reg.4.10 of the Regulations. But the Tribunal does not have any such discretion. This has been confirmed in the case law. I need only refer to the judgment of Tracey J in SZIUK v Minister for Immigration and Citizenship [2007] FCA 226 where at paragraph 26 of his Honour’s reasons, his Honour said as follows:
Although the appellant claims that his late application occurred because of the negligent conduct of his migration agent, it is notable that he did not notify the department that he had an agent acting for him. In any event, as the Tribunal and the learned Magistrate have held, the application was lodged a week late. The Tribunal did not have power to enlarge time or jurisdiction to entertain the application.
This passage was directed to different provisions of the Act, being provisions that regulated applications to the Refugee Review Tribunal. Those provisions, however, are not materially different from s.347 of the Act and reg.4.10. In my opinion the Tribunal was correct to conclude that the applicant was required to lodge his application for review within 21 days after the day on which the applicant was notified of the decision. That means that the applicant was required to lodge an application by 28 December 2016; and his failing to do so, has had the consequence that the Tribunal has and could have no jurisdiction in relation to the application for review which the applicant lodged on 5 January 2017.
In broad terms ground two claims the Tribunal failed to consider the reasons of the delegate, and in particular the delegate’s failing to take into account or consider a number of matters. It is true that the Tribunal did not do any of the things ground two says the Tribunal failed to do. But the Tribunal did not do so, because it could not do so because it concluded it had no jurisdiction to consider the applicant’s application for review. As I have already concluded, the Tribunal was correct in so concluding.
The applicant, who is not legally represented, made some submissions to me. The submissions went no further than the applicant referring to the fact that he had been misguided by his migration agent. There is no formal evidence to that effect. I’m prepared to accept that what the applicant has said to me is true. And if it is true, and that has contributed to the applicant’s not taking advantage of rights that would otherwise have been available to him, that is a matter of regret. That the applicant failed to lodge his application within 21 days due to negligent advice by his agent, however, does not alter and cannot alter the fact that the application was not lodged within the prescribed period of 21 days. And that does not alter the fact that neither the Tribunal nor this Court has any jurisdiction to extend the 21 day period.
For these reasons I propose to dismiss the application and will do so by making a formal order to that effect in a moment.
After having delivered these reasons, Ms Sangha, who appears for the Minister, has applied that I make an order for costs against the applicant, and that I should set those costs in the amount of $5,400. I informed the applicant that the usual rule is that a party who succeeds in litigation is entitled to an order for costs. I asked the applicant whether he had any submissions to make about that and the applicant made no submissions against my making an order for costs or my making an order for costs set in the amount of $5,400.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 17 August 2018
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