Brundavanam v Minister for Immigration and Anor - [2013] FCCA 2298

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRUNDAVANAM v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 2298

Catchwords:
MIGRATION – Migration Review Tribunal – application for extension of time General Skilled visa – no reasonable prospects of success.

Legislation:

Migration Act 1958 (Cth), ss.347, 477

Migration Regulations 1994, rr.1.15C, 4.13

Migration Amendment Regulations 2011 (No. 3) Sch.1, item 2

Berenguel v Minister for Immigration and Citizenship (2010) 114 ALD 1; (2010) 264 ALR 417; (2010) 84 ALJR 251; [2010] HCA 8
Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364; (2001) 65 ALD 95; (2001) 183 ALR 123; [2001] FCA 318
Patel v Minister for Immigration and Citizenship (2009) 108 ALD 151; [2009] FCA 392

Applicant:

VAMSIKRISHNA BRUNDAVANAM

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 797 of 2013

Judgment of:

Judge Riley

Hearing date:

17 December 2013

Date of Last Submission:

17 December 2013

Delivered at:

Melbourne

Delivered on:

17 December 2013

REPRESENTATION

Advocate for the Applicant:

The applicant appeared in person

Solicitors for the Applicant:

The applicant was not represented

Advocate for the First Respondent:

Mr McDermott

Solicitors for the First Respondent:

Australian Government Solicitor

Advocate for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Australian Government Solicitor

ORDERS

The title of the proceeding be amended so that the name of the first respondent is “Minister for Immigration and Border Protection”.
The application filed on 3 June 2013 for an extension of time in which to file an application seeking review of a decision of the Migration Review Tribunal be refused.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $3,692.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 797 of 2013

VAMSIKRISHNA BRUNDAVANAM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for an extension of time in which to bring an application to review a decision of the Migration Review Tribunal.
The application to this court was filed on 3 June 2013 in respect of a decision of the Tribunal that was made on 14 February 2013.
Under section 477 of the Migration Act 1958, the application to this court should have been brought within 35 days of the Tribunal’s decision, subject to any extension of time this court may grant. The test for an extension of time is well known. It is:
a)whether there is a reasonable explanation for the delay;
b)whether there is any prejudice to the applicant in not granting the extension;
c)whether there is prejudice to the Minister or any other person in granting the extension; and
d)whether the substantive application has reasonable prospects of success.
The applicant acknowledged in his application that he did need an extension of time. He said that the grounds of application for the extension of time were that:
I was under severe depression due to my dad’s health. Medical certificate of my father is attached.
The affidavit in support of the application attached a medical certificate, which said that a certain person with the same surname as the applicant, aged 40 years, was suffering from hepatitis with jaundice, and required treatment and rest for one month from

18 December 2012 to 16 January 2013. The medical certificate was apparently signed by a doctor and was dated 18 December 2012.
The affidavit also has an attachment, which is a letter dated 29 April 2013. It says:
RE: Ministerial Intervention into the case of Mr. Vamsikrishna Brundavanam as detailed below.
To Whom It May Concern
I Vamsikrishna Brundavanam resident of 255 tucker road, Ormond Vic 3204 applied for MRT. Case number:1217950. Resulting in MRT refusal reason being couldn’t meet the payment criteria. My MRT was refused by the Tribunal. I was very much financially ill at the time.
The time has been very hard on me with brutality. I was in severe stress concerning my father’s brother health. My Uncle has been very sick from past few years. I have been on the phone to my family and friends regarding my Uncle's health. Several times I had to call doctor to verify my uncle’s progress and health condition.
I have been over volume with stress and fear. I started going to work late and started calling in sick. After few weeks my employer asked me reasons for being late and calling in sick. To which I could not justify over stress. My employer gave me final warning. These entire problems came together onto me. I started forgetting things. I have been going to doctor regarding my stress. My Uncle had a heart attack.
The date I had to make the payment of my fees for MRT skipped my mind because I was over flooded with work, stress and tensions all together.
I have secured 6.0 bands in each module of the IELTS test. I meet the criterion for the 485 Visa.
I humbly request federal court to look into my case and give me another chance to prove myself.
The applicant did not make it clear in that letter or to the court whether he was relying on the circumstances described in the letter to explain his delay in making the present application, or whether he was making that statement to explain his delay in paying the required fee to the Tribunal. In any event, it seems to me that the explanation that the applicant has given for his delay in bringing the present proceeding is at best somewhat vague and confusing, and not well-evidenced.
The next question is whether there is any, and if so, what, prejudice to the applicant. The applicant’s underlying application is for a general skilled migration visa. If the applicant is not given an extension of time, the applicant will suffer the prejudice of not being able to take that application any further.
The next question is whether there is any prejudice to the Minister or any other person. If an extension of time is granted, it will prolong a matter that has been outstanding for a considerable period of time. The Minister was entitled to consider that this matter was at an end 35 days after 14 February 2013. There is some inconvenience to the Minister in having to deal with the matter some 74 days after the date on which the applicant could have filed his application without leave of the court.
The next factor to consider is the merits of the substantive application. In the application filed in this court on 3 June 2013, the applicant stated that his grounds of application were:
“Ministerial=Attached…
Letter”
That might be a reference to the letter dated 29 April 2013 set out above which was attached to the applicant’s affidavit.
As I have indicated, the applicant has applied for a general skilled visa. That application was made on 14 March 2012. One of the requirements of that visa was that the applicant have competent English. That was defined at the relevant time by r.1.15C of the Migration Regulations 1994 to include a requirement that the applicant had passed an English language test in the two years immediately before the day on which the application for the visa was made.
The relevant provision was introduced into the regulations by Migration Amendment Regulations 2011 (No. 3), which came into effect on 1 July 2011. That is a different version of regulation 1.15C to the regulation that was considered in the High Court in Berenguel v Minister for Immigration and Citizenship (2010) 114 ALD 1; (2010) 264 ALR 417; (2010) 84 ALJR 251; [2010] HCA 8. It is also a different regulation to two other versions that came in to force subsequently. However, as I say, the regulation that was in force at the relevant time required the applicant to have passed the IELTS test in the two years immediately before the day on which the application was made.
The applicant has made it clear that he had not passed the IELTS test at the time that he applied for his visa, and certainly not in the two years before lodging his application. He told the court today, and produced an IELTS test result indicating, that he passed the test on

28 November 2012. That was about eight months after the date of his application. As the applicant had not satisfied the requirements of r.1.15C at the time that he lodged his application, it would seem that the applicant could not succeed before the Tribunal, even if this matter were returned to the Tribunal for further hearing.
There is another issue in this case, and that is that the applicant did not pay the prescribed fee when he lodged his application. The applicant was required under s.347(1) of the Act to lodge the prescribed fee when he lodged his application. The prescribed fee was set by r.4.13 of the Migration Regulations 1994, in the sum of $1,540. Under sub-reg.(4), the applicant could have been able to obtain a 50 per cent fee reduction if he had been able to satisfy the relevant officer of the Tribunal that he was under severe financial hardship.
In this particular case, the Tribunal officer refused the fee waiver and notified the applicant of that fact by letter dated 10 December 2012. The applicant acknowledged receiving that letter, though he did not say exactly when. In the letter, the Tribunal officer notified the applicant that he had 14 days to make the payment of the prescribed fee. The applicant did not do so. The Tribunal eventually made its decision on 14 February 2013, saying that the Tribunal did not have jurisdiction because the applicant had not paid the prescribed fee.
There is a question before this court about whether the Tribunal officer gave the applicant a reasonable time to pay the fee, and whether the Tribunal may have erred in making its decision when it did, without giving the applicant further time.
That issue was considered by Gray J in Patel v Minister for Immigration and Citizenship (2009) 108 ALD 151; [2009] FCA 392 at paragraphs 13 to 16, which are as follows:
[13]The Full Court in Braganza[1] attempted to resolve the difficulty created by the absence of any specific provisions to deal with the obvious gap created by s 347(1)(c) of the Migration Act. That gap occurs in a case in which a person gives to the Tribunal, within the prescribed time limit, an application in the approved form, but the application is not accompanied by the prescribed fee, because the applicant has applied for a decision under reg 4.13(4) of the Migration Regulations that the fee should not be paid, generally described as an application to waive the fee. If the application to waive the fee is unsuccessful, the applicant is required to pay the prescribed fee. The problem is that time has elapsed. Not only has the prescribed fee not accompanied the application, but it is very likely that the prescribed period has expired. If a literal view were to be taken of s 347(1), in every such case an applicant would be precluded from proceeding for review, because of non-compliance with s 347(1)(c). This would have the effect of depriving reg 4.13(4), and the words “(if any)” in s 347(1)(c), of any real meaning, except in a case in which the applicant paid the prescribed fee and also sought a decision that it should not be paid, leading to the remission of the fee if the application were successful. Such a construction would do injustice to an applicant who genuinely lacks the means to pay the fee and therefore seeks a decision under reg 4.13(4) to waive the fee. It is likely that there would be many such applicants. To make the provisions operate sensibly, the Full Court in Braganza held that, in such a case, the Tribunal was not deprived of jurisdiction to consider the application for review merely because the prescribed fee was not paid within the prescribed period, provided the fee was either eventually waived or paid within a reasonable time after the rejection of the request for a decision under reg 4.13(4). See especially [50]–[52] in the reasons for judgment of the Full Court.
[14]Consequent upon Braganza, the Tribunal appears to have adopted a practice of allowing 14 days from the deemed receipt by an applicant of a letter informing that applicant that a decision to waive the prescribed fee has not been made. This period is generally regarded as a reasonable time for the purposes of the application of the principle enunciated in Braganza. That practice appears to have been applied by the Tribunal in the present case, when it advised the appellant in the letter dated 25 September 2007 that he should pay the fee by 18 October 2007. This allowed for the seven working days after the posting of that letter, to give rise to the deemed receipt, with a further period of 14 days as a reasonable time in which to pay the fee.
[1] Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364; (2001) 65 ALD 95; (2001) 183 ALR 123; [2001] FCA 318
The Tribunal’s obligation
[15]There can be no doubt that the Tribunal was entitled to act upon the view that the appellant must be taken to have received its letter dated 25 September 2007 once seven working days, determined at the place of posting, had expired. For the purposes of the application of the principle enunciated in Braganza, however, the Tribunal was required to consider whether a reasonable time after that date had been allowed for the payment of the prescribed fee. A reasonable time can never be a period determined arbitrarily. The reasonableness of the time allowed must be determined, in each case, according to the circumstances of that case. If, in a particular case, the person to whom the letter is addressed has not received it in fact, that is one of the circumstances that must be taken into account in determining whether a reasonable time has in fact elapsed.
[16]When the appellant contacted the Tribunal to advise that he had not received the letter informing him that a decision to waive the prescribed fee in his case had not been made, it was not open to the Tribunal to take the view that it had allowed a reasonable time and had completed the discharge of its function. The information provided by the appellant necessarily raised for the Tribunal the factual question whether the appellant had not received the letter of 25 September 2007. If this question had been determined in the appellant’s favour, it would have raised for the Tribunal the question whether its decision that it had no jurisdiction to deal with the appellant’s application for review was attended by jurisdictional error. If the Tribunal had proceeded to such a decision before the passage of a reasonable time, in the circumstances of the case, it would not have performed its statutory function of reviewing the decision of the Minister’s delegate. It would have declined to exercise its jurisdiction in circumstances where the provisions of the Migration Act required it to exercise that jurisdiction. The making of a decision consequent upon jurisdictional error does not discharge the Tribunal’s function. The Tribunal has the power, and the duty, to disregard its previous decision and to proceed to perform its statutory function. See Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597. In that case, a Tribunal exercising powers under the Migration Act had proceeded to make a decision on the footing that the applicant for review had not attended at the appointed time for a hearing, unaware of the fact that the applicant had communicated a request for an adjournment of that hearing. Upon discovering the error, that Tribunal had proceeded to make a second decision, after affording the applicant procedural fairness. The High Court held it had power to do so.
There is nothing before this court to suggest that the applicant did not receive the letter from the Tribunal’s officer dated 10 December 2012.

It seems to me that the applicant did have more than a reasonable time in which to pay the prescribed fee, given that the Tribunal did not make its decision until 14 February 2013. Nothing in the applicant’s letter dated 29 April 2013 seems to me to indicate that the Tribunal made a jurisdictional error, or acted unreasonably, in determining the application to it on 14 February 2013.
I detect no error in the Tribunal proceeding to make a decision on

14 February 2013, based on the applicant not having paid the prescribed fee. In any event, there is also the issue of the applicant not having passed his IELTS test in the two years immediately prior to the lodging of his application. It does not seem to me that the applicant has reasonable prospects of success in the substantive application.
Balancing all the matters in this case, it does not seem to me to be appropriate to grant an extension of time. There will be orders accordingly.

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

Associate:

Date: 20 January 2014