Datta v Minister for Immigration
[2017] FCCA 1158
•8 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DATTA v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1158 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Skilled visa application – Applicant found not to have “competent English” – Delegate refuses visa – application for review to Administrative Appeals Tribunal lodged out of time – AAT correctly holds it had no jurisdiction – Applicant late in applying for judicial review to this Court – attack on decision of Tribunal not reasonably arguable –application for extension of time under s.477(2) refused – Application dismissed. |
| Legislation: Administrative Appeals Tribunal Act 1975 (Cth), ss. 24Z, 29 Migration Act 1958 (Cth), ss.347, 477, 494B, 494C, 494D Migration Regulations 1994 (Cth) |
| Cases cited: Calimoso v Minister for Immigration and Border Protection [2016] FCA 1335 MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 SZTES v Minister for Immigration and Border Protection [2015] FCA 719 VOAM v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 396 |
| Applicant: | RAJIB DATTA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2242 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 6 December 2016 |
| Judgment reserved: | 15 February 2017 |
| Delivered at: | Sydney |
| Delivered on: | 8 June 2017 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Ms N Johnson |
| Solicitors for the Respondents: | Mills Oakley |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the 35-day period prescribed by s.477(1) of the Act be dismissed.
The Application filed in this Court on 19 August 2016 be otherwise dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2242 of 2016
| RAJIB DATTA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Bangladesh aged 29 years, having been born on 29 October 1987.
By Application filed in this Court on 19 August 2016 he seeks to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 19 April 2016 which found it lacked jurisdiction to review the decision of a Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 6 February 2014 refusing to grant the Applicant a Skilled (Residence) (Class VB) Subclass 885 (Skilled-Independent) visa (Skilled visa).
The Applicant lodged his application for a Skilled visa on 8 December 2011. At that time, cl.885.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) mandatorily required that he have competent English.
By force of reg.1.03 of the Regulations, the applicable provision prescribing the criteria for determining whether the Applicant had competent English was reg.1.15C, which stated at the relevant time as follows:
1.15C Competent English
If a person applies for a General Skilled Migration visa, the person has competent English if the person:
(a)satisfies the Minister that:
(i) the person undertook a language test, specified by the Minister in an instrument in writing for this subparagraph; and
(ii)the test was conducted in the 2 years immediately before the day on which the application was made; and
(iii)the person achieved a score specified in the instrument; or
(b)satisfies the Minister that the person holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.
By IMMI11/036, effective on 1 July 2011, the Minister specified the IELTS and OET tests and the required scores in such tests for the purposes of reg.1.15C(a)(i). That instrument further specified a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland for the purposes of reg.1.15C(b).
The Applicant appointed a migration agent to represent him and on 16 December 2013 a Form 956 declaring that appointment was lodged by an email from the migration agent. The Applicant’s migration agent was authorised to receive written communications on behalf of the Applicant by fax, email or other electronic means and provided the migration agent’s email address to that end.
Decision of Delegate
In her Decision Record of 6 February 2014 the Delegate found that the Applicant did not meet the criteria for the grant of a Skilled visa because she was not satisfied that he had competent English under the requirements of reg.1.15C(a) or (b). This was because he had not provided evidence of having obtained an IELTS test score of at least 6 for each of the four relevant test components (namely reading, writing, listening and speaking) or an OET test score of at least “B” on each of the said four components or that he had evidence of a passport issued to him as a citizen of the United Kingdom, the United States of America, Canada, New Zealand or Ireland.
The Applicant had claimed in his Skilled visa application to have undertaken an IELTS test on 7 November 2011 and to have proficient English. However, the Delegate was not able to verify the test reference number establishing competent English provided by the Applicant. By letter dated 20 January 2014 the Delegate had pointed this out to both the Applicant and the Applicant’s migration agent and had extended time until 3 February 2014 to allow the Applicant or his agent to provide documents supporting satisfaction by the Applicant of reg.1.15C. No further supporting documentation had been received before the Delegate gave her decision on 6 February 2014.
In these circumstances the Delegate refused to grant a Skilled visa to the Applicant because he had not met the requirements of reg.1.15C and she was not satisfied that he had competent English and therefore the Applicant did not meet the requirements of cl.885.213.
Decision of Tribunal
It was common ground at the hearing in this Court and expressly accepted by the Applicant that the Decision Record of the Delegate was sent to the migration agent’s email address on 6 February 2014. The Applicant conceded the same in [2] of his affidavit affirmed on 18 August 2016 and filed in this Court in support of his Application (affidavit). In any event, the affidavit of Ms Johnson sworn on 4 November 2016 established that the Decision Record of the Delegate was sent to the migration agent’s email address on 6 February 2014. Such was also the finding of the Tribunal at [4] of its Decision Record.
Accordingly it followed that the sending of the Decision Record of the Delegate by email to the Applicant’s authorised recipient complied with the requirements of s.494D(1), which required documents to be given to that authorised recipient. By force of s.494D(2), the Minister in giving that document to the authorised recipient was taken to have given it to the Applicant. Section 494B(5) of the Act identified email as a permissible method of transmitting a document, and therefore s.494C(5) operated, providing that where the Minister transmits a document by email, a person is taken to have received it at the end of the day on which it is transmitted. Thus by operation of law the Applicant was taken to have been notified of the Delegate’s decision on 6 February 2014.
It followed that pursuant to s.347(1)(b) of the Act and reg.4.10 of the Regulations an application for review of the Delegate’s decision to the Tribunal had to be made within 21 days after 6 February 2014. The last day for the Applicant to lodge his application for review with the Tribunal was therefore 27 February 2014.
However, the Applicant’s application for review was not lodged until 29 March 2016, together with an application purportedly made under s.29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) for extension of time for making an application for review to the Tribunal, a suite of submissions and a Pre-Migration Skills Assessment Application Outcome from the Department of Education, Employment and Workplace Relations.
Accordingly, the application for review lodged on 29 March 2016 was therefore over two years late. Further, the application for extension of the same date purportedly lodged under s.29(7) of the AAT Act was incompetent because s.29 was inapplicable to proceedings in the Migration and Refugee Division of the Tribunal by force of s.24Z of the AAT Act.
The Tribunal contacted the Applicant by letter dated 5 April 2016 to invite him to comment on the validity of his application for review, and informed him that the Tribunal was of the view that the application was not valid as it was lodged outside of the time limit, which was 21 days from the date he was notified of the Delegate’s decision.
In response to this letter, the Applicant on 12 April 2016 to the Tribunal a letter dated 26 March 2016 which contained a request for the Tribunal to “exercise your discretion” on the grounds of mental health issues suffered by the Applicant and submissions to that effect. Also attached was a medical certificate stating that he “has had major depression and has been treated at Sydney Medical Centre since 2013.”
In the result, the Tribunal in its Decision Record found that the application for review lodged by the Applicant on 29 March 2016 was out of time and that consequently the Tribunal did not have jurisdiction to hear and determine it. At [7] the Tribunal referred to the decision of French J (as he then was) in VOAM v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 396 as authority for the proposition that the Tribunal had no jurisdiction because the application for review had not been lodged within the applicable time limit and lodgement within that time was an essential preliminary to the exercise of the Tribunal’s function.
I consider that the Tribunal was clearly correct in coming to the view that it had no jurisdiction. The law remains the same as that stated by French J.
To similar effect, Charlesworth J recently stated in Calimoso v Minister for Immigration and Border Protection [2016] FCA 1335 at [29] as follows:-
The time period in which an application for review must be filed is absolute. The Tribunal has no discretion to extend the time in which an application may be made.
Accordingly, at [7] of its Decision Record the Tribunal correctly recorded that it did not have jurisdiction in the matter.
Proceeding in This Court
Extension of Time
As earlier recorded, the Applicant filed his Application in this Court on 19 August 2016.
The Decision Record of the Tribunal dated 19 April 2016 was sent by email to the Applicant on 20 April 2016. Pursuant to s.477(1) of the Act, the Applicant needed to file his Application to this Court within 35 days of the date of the Tribunal’s decision. He failed to comply with that requirement but rather filed some 87 days outside the 35-day time limit prescribed by s.477(1). Accordingly, his Application in this Court is incompetent unless pursuant to s.477(2) I extend the 35-day period up to 19 August 2016 because I consider that it is necessary in the interests of the administration of justice to do so.
The Minister opposes the application for an extension of time on the basis that the substantive Application is without merit and the extent of delay is significant. I record that this matter was set down before me for the hearing on 6 December 2016 of both the application to extend time and the substantive Application.
Adjournment Application
I further record that at the commencement of the hearing, the Applicant applied for an adjournment on the basis that he wanted to obtain legal advice, was being detained at Villawood Immigration Detention Centre and was not financially able to pay for legal representation and that whilst having been refused legal aid on 14 November 2016, he still had a pro bono legal representation application being processed by the New South Wales Law Society. Ms Nicola Johnson appeared for the Minister and opposed the adjournment.
The Applicant relied on medical evidence in support of his application for an adjournment. However that medical evidence did not indicate that he had been impeded in taking steps to obtain legal representation and the Applicant accepted at the hearing that his depression did not affect his ability to meaningfully participate in the hearing and to make submissions.
I refused to grant an adjournment. At the first return date on 16 September 2016, when the matter had been set down for final hearing, the Applicant had appeared in person. In my view there had been ample time for him to obtain or seek to obtain legal representation and legal advice. If I had adjourned the hearing it would have been necessary to adjourn it for a lengthy period of time or otherwise displace another hearing which had been set down to be heard by me.
Nevertheless, I endeavoured to provide a compromise to the Applicant by making the following orders at the conclusion of the hearing, namely:-
(1)In the event that the applicant is successful in his pending application for pro bono legal representation, liberty is reserved to him and any lawyer assisting him under the auspices of the Law Society of New South Wales Pro Bono Legal Assistance Scheme to make any further written submission that they may be advised, directed to my associate, on or before 15 February 2017.
(2)Any such legal submission is to be copied to Ms Johnson at the same time that it is forwarded to my associate.
(3)Reserve for further consideration in the event that any such legal submission is received, any further directions for the finalisation of this matter.
(4)Reserve judgment on the Application in this Court as and from 15 February 2017 subject to any further directions in the proceeding generally.
The purpose of order 3 was to reserve for further consideration whether or not there should be a further hearing, in the event that legal representation was obtained by the Applicant or a legal submission was forwarded to the Court.
However, in the result no further written submissions on behalf of the Applicant were sent to the Court pursuant to the orders set out in [27] above.
Grounds of Attack on Tribunal Decision in this Court
In the Application filed on 19 August 2016 the Applicant set out his Grounds for extension of time. They were as follows:-
1. It is in the interests of the administration [of justice] that the 35 day time limit be extended.
2. I have reasonable prospects of success. The ground pleaded have substantial merits.
3. The Minister would not suffer any prejudice if the time were to be extended.
4. It is in the interests of the administration of justice that the extension of time is granted because of my poor health condition, could not arrange respective review on 27 February 2014.
5. I will suffer hardship if I have to leave Australia, because of my religious background.
6. I respectfully request an extension of time be granted so that the court have jurisdiction to hear my case and decide.
The Application contained no substantive grounds in support of any argument that the Tribunal’s decision was affected by jurisdictional error but rather referred to annexure “D” to his affidavit. However, this annexure “D” spoke of his current health issues and family situation and his reasons for an extension of time but did not contain any substantive ground supporting a finding that the Tribunal had committed jurisdictional error.
Consideration
As I have stated (see [22] above), the Applicant needs an extension under s.477(2) of the Act of time of some 87 days to file his Application. He has satisfied the first pre-condition in that he has applied for an extension of time in writing and specified why he considers that it is necessary in the interests of the administration of justice that I make an order for extension.
It is my usual practice to grant extensions of time under s.477(2) because if leave is not granted, an Applicant has no right of appeal to the Federal Court. In this case factors that could be regarded as pointing in favour of extension are:
a)an extension of some 87 days in the context of this area of law is not a very long period;
b)the Minister did not suggest any particular prejudice;
c)whilst there was not any particularly impressive sworn explanation for delay, the failure to more expansively explain the reasons for the delay in greater detail would not necessarily militate against a grant of leave in the absence of a suggestion of specific prejudice to the Minister; and
d)as stated above, the fact that if leave were not granted, the Applicant would have no right of appeal to the Federal Court.
Nevertheless, in this case I do not consider that it is in the interests of the administration of justice to make an order for extension of time under s.477(2). This is because the Applicant has had a full opportunity to argue and present to this Court the substantive grounds upon which he challenges the decision of the Tribunal. I have fully considered whether or not there are any substantive grounds for finding that the decision of the Tribunal was infected by jurisdictional error and have investigated the merits of the Applicant’s substantive case. As stated at [18]-[20] above, there is no basis for finding jurisdictional error on the part of the Tribunal. It therefore necessarily follows that I cannot reasonably find that it would nonetheless be in the interests of the administration of justice to grant an extension of time. As Wigney J pointed out in SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [65]-[66]:
[65]A fair reading of the judgment of the Federal Circuit Court judge reveals that, having heard full argument on the merits of the grounds of review, the Federal Circuit Court judge was of the opinion that there was no basis to find that the Tribunal’s decision was affected by jurisdictional error. This amounted to a finding that the applicant’s case was not just weak, but was hopeless and destined to fail. It is difficult to see how, in these circumstances, the judge could possibly have been persuaded that the grounds were reasonably arguable, or that there were reasonable prospects of success.
[66]It is equally difficult to see how the Federal Circuit Court judge, having found that there was no basis for finding jurisdictional error on the part of the Tribunal, could decide that it was nonetheless in the interests of the administration of justice to grant an extension of time on the basis that the applicant’s case was at least reasonably arguable. How could it be said to be necessary in the interests of the administration of justice to grant an extension of time in respect of an application which had been found to be without merit and therefore destined to fail? The applicant’s apparent answer to this rhetorical question is that it was in the interests of the administration of justice to extend time, despite the finding that his substantive application was destined to fail, because otherwise he would be deprived of his appeal rights. But that is the case in relation to all extension applications. The creation or preservation of appeal rights alone could not provide a basis for an extension of time where the court has concluded that there are no reasonable prospects of success.
To similar effect, Mortimer J said of extensions of time to appeal from this Court to the Federal Court (which is equally applicable to extensions of time under s.477(2) of the Act) in MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [6]:
[6]Even in circumstances where the Court is persuaded on the basis of the kinds of factors referred to that an extension of time may be appropriate, the prospects of success of any appeal may be determinative of the manner in which the Court’s discretion should be exercised. That is because it is not in the interests of the administration of justice to utilise the resources of the Court and of other parties where there is no realistic prospect the appeal will succeed if an extension is granted. Such a process also exposes an applicant to the risk of significantly greater legal costs if the appeal is unsuccessful and the Court makes the usual orders as to costs.
Conclusion
As I am of the view that the Tribunal was clearly correct in coming to the view that it had no jurisdiction it follows that the Applicant cannot establish jurisdictional error. I conclude that it is not in the interests of the administration of justice to extend the time to bring this proceeding and accordingly the application for an extension of time within which to do so is dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 8 June 2017
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