Brar v Minister for Immigration - [2018] FCCA 2272

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 2272
Decision Date: 2 August 2018

CaseChat Overview and Summary

This matter concerned an application for judicial review of a decision by the Administrative Appeals Tribunal (AAT) that it lacked jurisdiction to review a migration decision. The applicant sought to challenge the AAT's determination that his application for review was lodged out of time.

The central legal issue before the court was whether the AAT had correctly determined that it did not have jurisdiction to hear the applicant's review application because it was filed more than 21 days after the applicant was taken to have been notified of the primary decision. This involved considering the date of notification and the validity of the application lodged with the Tribunal.

The court found that a screenshot of an electronic communication constituted a "document recording an electronic communication" under section 71 of the *Evidence Act 1995* (Cth). This meant that the hearsay rule did not apply to representations within the screenshot concerning the sender, date, time, destination, or addressee of the communication. Consequently, the court was satisfied that the letter containing the primary decision, dated 6 December 2016, was sent on that day to the applicant's authorised recipient. This established that the applicant was required to lodge his application for review by 28 December 2016. The AAT's subsequent letter of 17 January 2017 informed the applicant that his application appeared to be out of time, and invited comments by 31 January 2017. The applicant responded on 28 January 2017, explaining delays due to financial issues, holiday periods, and alleged misinformation from his migration agent, and requested that his application be considered valid. The court ultimately dismissed the application for judicial review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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