Buttar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 860
•22 July 2022
FEDERAL COURT OF AUSTRALIA
Buttar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 860
Appeal from: Manpreet Kaur Buttar & Anor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2020] FCCA 3530 File number: QUD 395 of 2020 Judgment of: DERRINGTON J Date of judgment: 22 July 2022 Catchwords: MIGRATION – Federal Circuit Court’s dismissal of application to review Tribunal’s decision – Tribunal having no power to review when application was made out of time – no sustainable grounds of appeal Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases cited: Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15
DFQ17 v Minister for Immigration and Border Protection (2019) 270 FCR 492
Hamod v State of New South Wales [2011] NSWCA 375
SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445
Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 31 Date of hearing: 21 July 2022 Counsel for the Appellants: The First Appellant appeared in person
The Second Appellant did not appearSolicitor for the Respondents: Mr D McLaren of Minter Ellison ORDERS
QUD 395 of 2020 BETWEEN: MANPREET KAUR BUTTAR
First Appellant
GURWINDER SINGH BUTTAR
Second Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
DERRINGTON J
DATE OF ORDER:
22 JULY 2022
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellants are to pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
DERRINGTON J:
Introduction
This is an appeal from a decision of the Federal Circuit Court of Australia (FCCA) which dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 27 March 2020. The Tribunal held that it did not have jurisdiction to review a decision of a delegate of the Minister for Immigration made on 19 June 2019 to refuse to grant Regional Employer Nomination (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act). It reached that decision on the basis that the application for review to the Tribunal was out of time.
There is no doubt that the appellants’ application for review to the Tribunal was out of time. That was acknowledged by the appellants before the primary judge and before this Court. The Tribunal was correct to conclude that it did not have jurisdiction to review the delegate’s decision and the FCCA was also correct to conclude that the Tribunal committed no error in reaching its decision.
The necessary consequence is that there are no sustainable grounds to the appeal and it must be dismissed.
Background
On 19 November 2017 the appellants applied for a Sub-class 187 visa under the Direct Entry Stream. The first appellant, Ms Manpreet Kaur Buttar (the appellant), was listed as the primary visa applicant and the second appellant, Mr Gurwinder Singh Buttar applied on the basis of being a member of the family unit of the appellant.
On 19 June 2019 the Minister’s delegate refused the application on the basis that the appellant did not satisfy reg 187.233 of Sch 2 of the Migration Regulations 1994 (Cth) (the Regulations). In particular, the delegate was not satisfied that the appellant was the subject of an approved nomination as required by sub-reg 187.233(3).
On 12 July 2019 the appellants sought review of the delegate’s decision by the Tribunal. The applications which attached a copy of the delegate’s decision were lodged two days outside the prescribed 21 day timeframe.
By a letter to the appellant of 19 November 2019 the Tribunal indicated that it regarded the applications as being invalid because they were not lodged within the relevant time period of 21 days from the date of notification.
By an email on 2 December 2019 the appellant responded to the Tribunal’s letter of 19 November 2019. In it the appellant acknowledged that her application was late and provided certain explanations as to why that had occurred.
On 27 March 2020 the Tribunal determined that it did not have jurisdiction to review the delegate’s decision as a result of the late filing of the application for review. It concluded that the appellant had been notified of the delegate’s decision by a letter dated 19 June 2019 which had been dispatched by email. It further concluded that the appellants were notified in accordance with the statutory requirements such that, pursuant to s 347(1)(b) of the Act and reg 4.10 of the Regulations, any application for review of the delegate’s decision needed to be lodged by 10 July 2019. The appellant’s application was, in fact, not made until 12 July 2019. It therefore concluded that it did not have jurisdiction.
By an application for judicial review filed on 21 April 2020 the appellant sought to review the Tribunal’s decision before the FCCA.
On 12 November 2020 the appellant appeared in person with the assistance of an interpreter before the primary judge. The appellant claimed that the Tribunal failed to provide her with procedural fairness because it did not hold a hearing in respect of her application for review. However, as the primary judge held, the Tribunal did not hold a hearing because it had no jurisdictional power to do so. That was because it was not seized of jurisdiction consequent upon the appellant’s application being out of time. In those circumstances the Tribunal made no error in acting as it did. The learned primary judge thereupon concluded that the Tribunal’s decision was not attended by any jurisdictional error and the application before him ought to be dismissed.
Appeal to this Court
By her notice of appeal to this Court the appellant relies upon two grounds which are as follows:
1.The Federal Circuit Court erred in not allowing the Appellant for more time to seek Legal Representation and adjourn the matter to a further date.
2.The Federal Circuit Court did not allow the Appellant the opportunity to speak through the Punjabi interpreter and also to listen to the Judge through the interpreter. The whole hearing was in English but the Appellant asked for the use of an interpreter in the Migration Act Application as she is not legally knowledgeable and not able to argue very well in English. She was disadvantaged in this case when English is not her first language.
Legislative provisions
Section 347 of the Act provides:
347 Application for review of Part 5‑reviewable decisions
(1) An application for review of a Part 5‑reviewable decision must:
…
(b) be given to the Tribunal within the prescribed period, being a period ending not later than:
…
(iii) if the Part 5‑reviewable decision is covered by subsection 338(9)—the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision; and
…
The relevant prescribed period under s 347(1)(b)(iii) of the Act is provided in reg 4.10 of the Regulations as follows:
4.10 Time for lodgment of applications with Tribunal (Act, s 347)
(1) For paragraph 347(1)(b) of the Act, the period in which an application for review of a Part 5-reviewable decision must be given to the Tribunal:
…
(d) if the Part 5-reviewable decision is prescribed under subsection 338(9) 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.
Ground one
By the first ground of appeal the appellant asserts that the primary judge erred by refusing her requests for time to seek legal representation and that the matter be adjourned to a later date.
The appellant did not file any evidence of any alleged refusal by the learned primary judge to grant her more time. Very appropriately the Minister, by his solicitors, filed an affidavit containing relevant parts of the transcript before the primary judge.
Following the commencement of the hearing, the primary judge asked the appellant if she was ready to proceed with the application for review to which she responded in the affirmative. Thereafter followed a discussion between the primary judge and the appellant during which the following exchanges occurred:
MS BUTTAR: So I just need, like, bit more time to ..... because I have completed all my studies and my experience, and I .....
HIS HONOUR: No, I can’t give you a bit more time. I can’t give you a bit more time. All I can do is to determine whether the AAT has made a mistake in determining that it couldn’t determine your application. You say the tribunal got it wrong?
…
HIS HONOUR: I see. Is there anything else you would like to say?
MS BUTTAR: I can only say that I don’t think ..... more time, because if I just ..... to lodge my .....
The Minister submitted that the appellant’s statement that she needed more time is unclear and does not amount to a request for an adjournment. It was submitted that the appellant was referring to the need for additional time to lodge her Tribunal application. There seems to be some force in that. Certainly it was not suggested that the appellant needed time to seek and obtain legal advice or assistance. It is, with respect, very unclear as to just precisely what it was that the appellant was seeking before the primary judge.
In the course of the appeal the appellant, who appeared on her own behalf with the assistance of an interpreter, submitted that this ground concerned her request to the FCCA that she be given further time to make the application to the Tribunal. If that was indeed her request there was no error in the FCCA refusing it. It had no power to grant such an extension and no grounds were provided on which an extension might be granted.
However, even if the appellant was seeking an adjournment, no grounds were provided as to why an adjournment should have been granted. Indeed in this case it is sufficiently clear that no adjournment could have assisted the appellant in any way. There is no challenge to the validity of the notification of the delegate’s decision: cf DFQ17 v Minister for Immigration and Border Protection (2019) 270 FCR 492; and the appellant accepted that she had made her application to the Tribunal out of time and that the Tribunal was correct to so conclude. There was no power in the Tribunal to extend time in relation to the lodging of a review request: Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15.
It follows that the Tribunal had correctly concluded that it did not have jurisdiction to review the delegate’s decision and the primary judge was correct to conclude that there was no error in the Tribunal’s decision to dismiss the application. No amount of delay will change those circumstances. That being so, even if the appellant’s statements could be seen as a request for an adjournment there was no error in the primary judge refusing it.
Ground two
By the second ground in the Notice of Appeal it is asserted that the primary judge did not permit her the opportunity to speak and listen through the Punjabi interpreter and that she was disadvantaged as English is not her first language.
Again, the appellant adduced no evidence as to this ground of appeal. However, the evidence adduced by the Minister demonstrates that the ground is misguided. As the transcript of the hearing before the primary judge demonstrates, after having the interpreter affirmed, the primary judge addressed the appellant and outlined the manner in which the interpretation might take place to which the appellant agreed. That passage provides:
HIS HONOUR: Thank you. Now, Ms Buttar, you can call on the interpreter and use the assistance of the interpreter whenever you wish to do so; is that okay?
MS M. K. BUTTAR: Yes, your Honour.
It is apparent that the appellant did not seek to utilise the services of the interpreter during the course of the hearing. There is not one skerrick of evidence to suggest that the primary judge denied the appellant any opportunity to speak through the Punjabi interpreter or to listen to the judge through them.
As the Minister submitted, there is no question that courts have an overriding duty to ensure that a hearing is fair and that self-represented litigants do not suffer disadvantage as a result of their status: SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 at 452 – 454 [37] citing Hamod v State of New South Wales [2011] NSWCA 375 at [309] – [316].
However, in this case no disadvantage arose. The transcript demonstrates that the appellant was given an opportunity to present her case by and through or with the assistance of the interpreter and no disadvantage was occasioned.
Again, this ground is somewhat irrelevant in the circumstances where it is accepted that the application was late. Nothing is said as to what submissions the appellant would have allegedly made had she had better assistance. Therefore, had there been any error it was not productive of any disadvantage or jurisdictional error.
In the course of the appeal the appellant submitted that her real concern was that the primary judge did not allow her to speak so as to explain that she needed an extension of time in which to complete her studies and gain experience so that she might apply for a permanent residence visa. Whilst that does not appear from the transcript, even if that were so no appellable error would arise as the FCCA judge had no power to grant the extension which the appellant desired.
Conclusion
Here the application for review to the Tribunal was out of time and there was no relevant power to extend it. It was not open to the Tribunal to determine the merits of the appellants’ complaints and it made no error in reaching the decision which it did. It follows that the appellant has failed to establish any error in the reasons of the primary judge. On the contrary, the primary judge’s conclusion that the Tribunal committed no error in concluding it had no jurisdiction to hear the application was entirely correct.
It follows that the appeal must be dismissed.
The Minister asks for an order for costs of the appeal and there is no reason why such an order should not be made.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Derrington. Associate:
Dated: 22 July 2022
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