BUKHBAT v Minister for Immigration

[2015] FCCA 1593

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUKHBAT v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1593

Catchwords:
MIGRATION – Migration Review Tribunal – Student (Temporary) (Class TU) visa – jurisdiction of the Tribunal – no jurisdictional error – application dismissed.

Legislation:  

Migration Act 1958 ss.347(1)(b), 476, 477

Applicant: BAYANMUNKH BUKHBAT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 873 of 2015

Judgment of: Judge Street

Hearing date: 9 June 2015

Date of Last Submission: 9 June 2015

Delivered at: Sydney

Delivered on: 9 June 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Ms S. Given
Sparke Helmore

ORDERS

1. The application for an extension of time be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $5800.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 873 of 2015

BAYANMUNKH BUKHBAT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional write within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 16 February 2015 holding that the Tribunal did not have jurisdiction to review a decision of the delegate, dated 10 December 2014, to refuse to grant a Student (Temporary) (Class TU) visa. The Tribunal found that the application for review was lodged on 9 January 2015 and noted under s.347(1)(b) the application for review had to be made within 21 days.

2. The Tribunal noted that the applicant was a citizen of Mongolia and, on 23 January 2015 the Tribunal wrote to the applicant identifying an issue in respect of jurisdiction by reason of the late lodgement of the application.  It was in those circumstances that the Tribunal found relevantly:

   7. The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 10 December 2014. Therefore the prescribed period within which the review application could be made ended on 31 December 2014. As the application for review was not received by the Tribunal until 9 January 2015 it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   8. The Tribunal does not have jurisdiction in this matter.

3. The grounds of the application are as follows:

   1. The Second Respondent’s decision was affected by jurisdictional error in that the applicant was denied procedural fairness under s359 of the Migration Act 1958 and failed to take into account relevant considerations.

   Particulars:

   a. The Applicant applied for a review on or about 9 January 2015. As there was no consistency in processing time of the review applications, there was no way that the Applicant knew of the likely time frame to have a hearing allocated by the Second Respondent.

   b. The Applicant had genuine reasons why the Application was submitted out of time but the Tribunal failed to consider any relevant circumstances in deciding it had no Jurisdiction to deal with the matter.

   c. The Tribunal did not provide any additional time for the Applicant to submit evidence of his reasons and circumstances and hence denied the Applicant procedural fairness.

   2. The Second Respondent decision was so unreasonable that no reasonable tribunal member would have made it.

   Particulars:

   a) The Applicant arrived in Australia as the holder of a Student Subclass 573 Visa. The student’s further student visa was refused as the Case Officer asked for documents but the Applicant did not receive any mail.

   b) The first respondent refused the Student Visa decision even though the client did not receive any mail. The Applicant filed an appeal to the Migration review Tribunal which was out of time but he had genuine and compassionate reasons for doing so.

   3. The Second Respondent made jurisdictional error in that it denied the applicant procedural fairness or failed to take into account relevant considerations in turning back the Application. The Applicant relies on the principle in Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013).

   Particulars

   a. The applicant relies on the particulars in grounds 1 and 2 above.

4. In circumstances where the Tribunal does not have jurisdiction, there is no obligation to hold a hearing, and there is no substance in relation to ground 1 of the application.

5. It is clear that the Tribunal properly identified the dispositive issue and gave the applicant an opportunity to respond.  There is no substance in the assertion that the applicant was the subject of any denial of procedural fairness or noncompliance with statutory obligations of the Tribunal under the Act.  Further, there is no substance in the proposition that the Tribunal failed to take into account relevant considerations.  There was no utility in the Tribunal providing any further time, as the proceedings were clearly doomed to failure.

6. Accordingly, the first ground fails to identify any jurisdictional error.  In relation to the second ground, there is no substance in the assertion that the Tribunal was not entitled to determine the issue of jurisdiction.  It cannot be said that its decision in respect of jurisdiction lacks an evident and intelligible justification.  The Tribunal was correct in holding that it had no jurisdiction and the decision cannot be said to be unreasonable.  There is no substance in relation to the second ground.  The third ground is, in substance, the same as the second ground and for the reasons I have identified there is no jurisdictional error by the Tribunal.

7. This is a case in which the applicant also requires an extension of time before this Court, under s.477. There is no evidence filed in support of the application, albeit that the applicant has said from the bar table that he and his family are having financial difficulties. Notwithstanding the answer ‘never married’ on the application for the student temporary visa that was completed on 29 October 2014, the applicant says he has a wife and child.

8. I do not regard what was said from the bar table as a satisfactory explanation for the failure to file the application for review within time and on that ground alone I would dismiss the application. However, further, in relation to the application of the s.477, this is a case where it is clear that the application fails to identify any arguable jurisdictional error and for that further reason it is not in the interests of the administration of justice to extend the time under s.477. The application for an extension of time is dismissed.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  10 June 2015