Chandrapu v Minister for Immigration
[2015] FCCA 2561
•22 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHANDRAPU v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2561 |
| Catchwords: MIGRATION – Judicial review of Migration Review Tribunal decision – application for extension of time under s.477 Migration Act 1958 (Cth) – Tribunal had no jurisdiction to consider application for review – application for extension of time dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.4.10(1)(a), 44.11(c), 44.12 Migration Act 1958 (Cth), ss.66(1), 98, 338(2), 347, 474(1), 477, 477(2)(a), 494B(5), 494C(5) |
| Cheng v the Minister for Immigration and Citizenship (2011) 198 FCR 559 Han v Immigration and Multicultural Affairs (2000) 103 FCR 517 Keo v the Minister for Immigration and Citizenship (2009) 177 FCR 479 SZSDA v the Minister for Immigration and Citizenship (2012) FCA 1319 |
| Applicant: | SANTOSH KUMAR CHANDRAPU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2131 of 2014 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 24 August 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 22 September 2015 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the First Respondent: | Ms Briffa |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The name of the Second Respondent be changed to the Administrative Appeals Tribunal.
The Application to extend time pursuant to s.477(1) of the Migration Act 1958 (Cth) is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2131 of 2014
| SANTOSH KUMAR CHANDRAPU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
These proceedings are an Application for judicial review of a decision of the Migration Review Tribunal (as it then was) (‘the Tribunal’) of 24 September 2014. The Applicant requires, firstly, an order that the time for making his application be extended under s.477 of the Migration Act 1958 (Cth) (‘the Act’). The grounds of application for extension of time, and those in respect of the substantive application, are as set out in the Application dated 21 October 2014. They are included in Annexure “A” to these Reasons. The Applicant relies upon an Affidavit sworn by him on 21 October 2014, which attaches the Decision Record of the Tribunal and otherwise restates the grounds of application of extension of time, and of the application itself.
The decision of the Tribunal was that it had no jurisdiction to review a decision of a Delegate of the First Respondent (‘the Delegate’) refusing to grant the Applicant a Skilled (Provisional) (Class VC) visa (‘the visa’).
The matter proceeded before Registrar Allaway on 4 February 2015 wherein Orders were made by consent, including that pursuant to r.44.11(c) of the Federal Circuit Court Rules 2001 (Cth), a hearing under r.44.12 be dispensed with and the application be listed for final hearing. That final hearing date was 24 August 2015. Further, the Orders provided for the Applicant to file and serve an amended application, if any, with proper particulars of the grounds of the application and written submissions.
The Applicant did not file any amended application or written submissions. The Respondent filed and served as required, pursuant to the Orders, copies of the Court Book, and the contents of the Court Book are in evidence on the hearing of this matter. The First Respondent also relied upon Written Submissions filed by him on 10 August 2015.
Background
The Applicant was born on 16 May 1984 and is now 31 years of age. He is a citizen of India and lodged his application for the visa on 1 April 2011. In his visa application, under the heading “Applicant skills assessment,” the Applicant nominated his occupation as cook; the name of the assessing authority as Trades Recognition Australia (‘TRA’); the date of his skills assessment as being 23 July 2010; and the reference receipt number as TRA10/194242983.
On 23 December 2011, TRA advised the Department of Immigration and Citizenship (as it then was) (‘the Department’) that they held no record of assessing the Applicant’s skills.
On 17 February 2012, the Department invited the Applicant to comment on potentially adverse information, including information received about his skills assessment. In part, that correspondence said:-
“It is alleged that your 485 application, currently under consideration by the Department, was lodged with the assistance of a business known as S & S Migration, who have been found to have lodged applications to the Department containing false and misleading information. Whilst you have no agent declared in your application, the Department has identified a file with your personal details and the application reference numbers in the office of S & S Migration.
In addition, as part of your application you answered ‘yes’ to the question ‘have you applied to a relevant assessing authority for an assessment of your skills for your nominated occupation?’ Further, in your application you provided the following reference indicating a successful skills assessment TRA10/194242983. This reference was referred to TRA for verification. TRA have no record of providing you [with] this skills assessment. TRA also have no record of ever providing you with any skills assessment. It is therefore alleged that you provided false and misleading information to the Department in relation to your application for a 485 visa.”[1]
[1] Email from the Department of Immigration and Citizenship to Santosh Kumar Chandrapu dated 17 February 2012.
The Applicant was invited to respond to the invitation to comment and was told he must do so within 28 days of his being taken to have received the letter. Further, that this response should be in writing. The Applicant did not respond to that invitation.
On 14 April 2012, the Delegate refused to grant the visa because the Applicant did not meet Public Interest Criterion 4020. The Delegate found that the Applicant had provided false and misleading information in accordance with the definition provided in Public Interest Criterion 4020(5). This is as follows:-
“(5) In this clause:
“information that is false or misleading in a material particular” means information that is:
(a) false or misleading at the time it is given; and
(b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.”
Further, the Delegate found that as there was evidence before the First Respondent that the Applicant had given, or caused to be given, information that was false and misleading in a material particular in relation to his application, he therefore failed to meet Public Interest Criterion 4020(1)(a). This is as follows:-
“(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or…”
Whilst the Delegate noted that S & S Migration were not declared as agents on the General Skilled Migration Applicant Form filed by the Applicant (‘the visa Application Form’), the Delegate considered that they assisted the Applicant in the lodgement of his Application. Nevertheless, he was still legally taken to have completed the form himself, even if completed on his behalf, as a result of the operation of s.98 of the Act.
The Delegate’s decision was sent to the Applicant by email at the address provided by him in the visa application form for the purpose of receiving correspondence.
On 11 May 2012, the Applicant purported to apply to the Tribunal for review of the Delegate’s decision.
On 15 May 2012, the Tribunal acknowledged receipt of the Applicant’s application for review and said, relevantly, in that correspondence:-
“Please note that the validity of your application has not yet been assessed. The [T]ribunal can only review a decision if a valid application for review has been made. You will be advised if it appears that your application may not be valid.”[2]
[2] Letter from Migration Review Tribunal to Mr Santosh Kumar Chandrapu dated 15 May 2012.
On 13 August 2012, the Tribunal invited the Applicant to make submissions on the validity of his application, given it considered it was received outside the prescribed period for lodgement. The Tribunal said, relevantly, in that correspondence:-
“The time limit is 21 days from the day on which you are taken to have been notified of the primary decision. The primary decision was emailed to you on 14 April 2012, and, on the basis that 14 April 2012 was the date on which you are taken to have been notified, the last day for lodging the application for review was 7 May 2012. As the application was not received until 11 May 2012, it appears to be out of time. However, this is a matter which must be determined by a Tribunal Member.”[3]
[3] Letter from Migration Review Tribunal to Mr Santosh Kumar Chandrapu dated 13 August 2012.
The Applicant provided submissions in response to the Tribunal on 24 August 2012. In that response, the Applicant acknowledged that his Application was lodged four days late, but said that was the fault of his agent who did not inform him of the Delegate’s refusal of his application, and further that he had no knowledge in respect of the time limitations in the lodging of an application.
On 24 September 2012, the Tribunal handed down its decision. The Tribunal determined that it did not have jurisdiction in the matter. By correspondence of 25 September 2012 to the Applicant, to the address provided by him to send all correspondence in connection with his review, the Tribunal advised the Applicant that it did not have jurisdiction to determine his application, and provided him with a copy of the Tribunal’s Decision Record dated 24 September 2012 (‘the Decision Record’) and a fact sheet.
Legislation
Section 347(1) of the Act provides that:-
“(1) An Application for review of a Part-5 reviewable decision must:
(a) be made in the approved form; and
(b) be given to the Tribunal within the prescribed period, being a period ending no later than:
(i) if the Part 5-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)- 28 days after the notification of the decision; or
(ii) if the Part 5-revewiable decision is covered by subsection 338(5), (6), (7), (4) or (8)- 70 days after the notification of the decision; or
(iii) if the Part 5-reviewable decision is covered by subsection 338(9) – the numbers 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
(c) be accompanied by the prescribed fee (if any).”
The relevant subsection of the Act which covered the Delegate’s decision was s.338(2) and in relation to that subsection r.4.10(1)(a) of the Migration Regulations 1994 (Cth) (‘the Regulations’) provided that:-
“(1) For paragraph 347 (1) (b) of the Act, the period in which an application for review of an MRT‑reviewable decision must be given to the Tribunal:
(a) if the MRT‑reviewable decision is mentioned in subsection 338 (2) or (7A) 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;…”
There is no provision in the Act or the Regulations for an extension of time for the lodgement of the Applicant’s Application before the Tribunal.
Section 494B(5) of the Act provided that:-
“(5) Another method consists of the Minister transmitting the document by:
(a) fax; or
(b) e‑mail; or
(c) other electronic means;
to:
(d) the last fax number, e‑mail address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents; or
(e) if the recipient is a minor—the last fax number, e‑mail address or other electronic address, as the case may be, for a carer of the minor that is known by the Minister.”
And s.494C(5) of the Act provided that:-
“(5) If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, e‑mail or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.”
The Tribunal decision
The Tribunal noted in paragraph 4 of its Decision Record that the question for it was whether the Tribunal had jurisdiction. Whether it did depended on whether the Application lodged on 11 May 2012, was an application properly made under s.347 of the Act for a review of the Delegate’s decision.
The Tribunal noted that the Application for review was not received within the prescribed period for lodgement. The Applicant conceded that in submissions made on the day of hearing.
In paragraph 19 of its Decision Record, the Tribunal found that the decision notice of the Delegate was emailed on the day it was dated to the correct email address in accordance with ss.66(1) and s.494B(5) of the Act. The Applicant was therefore taken to have received the notice on 14 April 2012, being the day when the notice was transmitted. The Tribunal found that the Applicant had been correctly notified in accordance with the legislative requirements and that the notification was effective.
The Tribunal considered the Applicant’s submissions made before it that his agent did not inform him about the refusal of his Application. The Tribunal nevertheless found it did not have a discretion to accept an application for review lodged outside the legislated for period.
On 21 October 2014, the Applicant filed his Application for an extension of time and Application for judicial review of the Tribunal’s decision in this Court.
Consideration
In support of his Application for an extension of time, the Applicant claimed there was a miscommunication between his agent and the Tribunal. He also claimed that the crucial factors causing his Application to be lodged late were his lack of knowledge, and his bogus agent.
Before the Court the Applicant agreed that the relevant material contained in the Court Book is evidence which establishes that he did not have an agent acting for him in his application before the Tribunal. Nor in fact did the Applicant have an agent acting for him on his application for the visa before the Delegate. Whilst there is evidence to suggest that he had a migration firm provide him with some advice and/or assistance, the notice of address provided by him in respect of both the Delegate’s and Tribunal’s decisions for the forwarding of each of those decision records, was his own personal address.
The Application in this Court was filed almost two years outside the 35 day time limit provided for in s.474(1) of the Act. This delay is substantial, and no satisfactory explanation for the delay was given by the Applicant. He had no agent acting for him before the Tribunal and subsequent thereto, and made no inquiries of the agent he claimed to be responsible for the delay in that two year period. He claimed a lack of knowledge as a reason for his delay. Ignorance of the stipulated timeframes, even on the part of a litigant in person, does not amount to a satisfactory explanation for delay.[4]
[4] SZSDA v the Minister for Immigration and Citizenship (2012) FCA 1319 at [38].
The Applicant gave no evidence at all as to why it was in the interests of the administration of justice for this Court to grant an extension of time to him, as required by s.477(2)(a) of the Act.
The substantive application itself is also without merit. There was no jurisdictional error in the Tribunal’s decision that it did not have jurisdiction to review the Delegate’s decision. The Tribunal correctly applied the relevant law and made findings of fact open to it on the material before it. The Tribunal is not empowered to waive or extend the prescribed period. Applications received outside the prescribed period have, on numerous occasions, been found to be invalid.[5]
[5] Cheng v the Minister for Immigration and Citizenship (2011) 198 FCR 559 at [16], citing Keo v the Minister for Immigration and Citizenship (2009) 177 FCR 479, Lee v Minister for Immigration and Multicultural Affairs (2002) FCA 303, Han v Immigration and Multicultural Affairs (2000) 103 FCR 517 at [21].
None of the grounds as set out in the substantive application have merit. The first three grounds refer to a (Subclass 485) visa which was refused on the basis of an IELTS test report, and because no evidence had been provided. These grounds did not relate to the present proceeding.
The fourth and fifth grounds of review did not allege jurisdictional error and do not accurately recount the facts. The Applicant did not appoint a representative to act on his behalf when he applied for review of the Delegate’s decision, and the Tribunal invited him to comment on its preliminary view about jurisdiction on 13 August 2012, and the Applicant did so on 24 August 2012.
Grounds six, seven and eight do not allege jurisdictional error and do not relate to the proceedings in this Court. Likewise grounds 10, 11 and 14 do not plead jurisdictional error and are not matters for judicial review in this Court.
By grounds 12 and 13 the Applicant claims that he “did not have a chance to make submissions” and feels that the visa determination process has been unfair. Contrary to that assertion, the Tribunal afforded the Applicant procedural fairness by providing him an opportunity to comment on its preliminary view. The Tribunal, however, had no jurisdiction.
In ground nine of his Application, the Applicant alleges he did not know the status of the application made by S and S Migration. Even if that ground were made out, mere inadvertence or negligence does not amount to fraud, as determined by previous authorities on this matter. In any event, there is no evidence of fraud before this Court. There is evidence that the Applicant did not refer to a migration agent as being his authorised recipient in respect of either the Delegate’s decision or the Tribunal’s decision.
The Application for an extension of time is dismissed, and costs shall follow the event. The quantum of costs ordered are those as claimed by Counsel for the First Respondent.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 22 September 2015
Annexure “A”
The grounds of application for extension of time, as contained in the Applicant’s Application filed on 21 October 2014:-
“1. Miscommunication between my agent and Migration review tribunal
2. S& S Migration has been shut down and I don't know exactly who to contact
3. After deep analyse gone through lot of advices from legal representatives, I came to conclusion to go speak with Migration Review Tribunal
4. When I have been to migration review Tribunal says Tribunal has already made a decision in the month of September 2012
5. Due to lack of knowledge and mu bogus agent who has been shut down to act behalf of me in regarding review application are crucial factors in submitting late application.
6. Therefore, I am requesting the Federal circuit court to accept my application under Extension grounds.”
The grounds of application for substantive application, as contained in the Applicant’s Application filed on 21 October 2014:-
“1. Delegate has refused my 485 visa subclass on the basis of IELTS test report.
2. DIBP claims that no documents have been submitted
3. DIBP further doesn't have evidence, offcourse DIBP say that there is an evidence which is not shown to me yet.
4. I went to Migration Review Tribunal to review the application through the same agent, this time he hasn't been shut down.
5. No hearing and no communication from Migration review Tribunal since I have applied the review, I have thought review application under processing.
6. I don't know exactly what is happening in Australia
7. Scared of going to Immigration Department, that is the reason I have not been to Immigration and Migration review Tribunal
8. Finally I have been to Migration Review Tribunal and got the decision as Tribunal has affirmed the decision not to grant the visa
9. But honest with Federal circuit court “I don't know about exact status and applicant made by S& S Migration"
10. Just I want finish my discontinued education and leave the country
11. I am bring this decision to Federal circuit court under the Migration Act 1958 to appeal on the name of judicial review.
12. I did not have chance to make some submissions in regarding my situation how I wasn't able to get all evidence to submit at Tribunal.
13. I have felt this is unfair and not legitimate to me as I have lost the future in Australia as well as time and money.
14. I hope Federal circuit court has got Jurisdiction in this matter.”
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