Dhanian v Minister for Home Affairs

[2019] FCCA 2856

FEDERAL CIRCUIT COURT OF AUSTRALIA

DHANIAN v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2856

Catchwords:
MIGRATION – Application filed out of time – whether the Tribunal had jurisdiction to review Delegate’s decision – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12

Migration Act 1958 (Cth), s.347(1)(b)

Migration Regulations 1994 (Cth), r.4.10

Applicant: AMAN DHANIAN

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 427 of 2018

Judgment of: Judge McNab

Hearing date: 12 September 2019

Date of Last Submission: 12 September 2019

Delivered at: Perth

Delivered on: 12 September 2019

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondents: Mr S J Oliver

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application filed 15 August 2018 be dismissed pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) and such order becomes operative from the date written Reasons are published.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $3,737.00.

3. The time for lodging any appeal be extended until 14 days after the publication of written Reasons.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 427 of 2018

AMAN DHANIAN

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(DELIVERED EX-TEMPORE – REVISED FROM TRANSCRIPT)

Introduction

1. By an application filed on 15 August 2018, the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 16 July 2018.

2. The Tribunal found that it did not have jurisdiction to review a decision made by a delegate (‘Delegate’) of the First Respondent on 12 June 2018. The Tribunal did so as the application for review was filed outside of the prescribed time limit.

3. The Delegate cancelled the Applicant’s Higher Education Sector (Class TU) (subclass 573) visa.

Background

1. The Applicant’s application is essentially a narration of the background facts that he wishes the Court to be aware of. That background material was then reproduced in an affidavit filed by the Applicant on 15 August 2018 at [7] to [17]:

   7. I decided to commence my further study in Australia & my parents· agreed for the same.

   8. I applied for my student visa and successfully got my visa on 16/10/2015.

   9. After that, I arrived in Australia in 2015 and started my study in Australia.

   10. I was enrolled in PIBT for ELI COS and ECU for Bachelor of Mechanical Engineering.

   11. I had some family issues, including death of close friend of mine.

   12. I was unable to concentrate on my studies & work.

   13. I got my Bachelor's COE cancelled due to non-payment of my University Fee.

   14. I took some time to recover and started my Hospitality course at Stanley International College.

   15. My study package included Certificate III in Commercial Cookery, Certificate IV in Hospitality Management and Diploma of Hospitality.

   16. I started my studies at Stanley College on 14 March 2016.

   17. I was regular with my studies till October 2017 and after which my life took unexpected turn and I was disoriented and was not able to concentrate on my studies.

   18. I was suffering from stress and anxiety due to family problem. I lost two of my close friends in two different accidents at that time.

   19. Department of Home Affairs officers visited my residence on 8 June 2018 and I was invited tom attend Perth office of Department of Home Affairs on 12 June 2018.

   20. I attended meeting with visa officer on 12 June 2018 and my visa was cancelled on that day

   21. After the refusal of my Visa asked for Merit Review of the case with MR Division of the Administrative appeal tribunal.

   22. I applied for Merit Review with Migration Review Tribunal on 22 June 2018.

   23. On 25 June 2018 I received letter from AAT stating that I have applied for review of my decision outside the reviewable time period.

   24. on 16 July 2018 tribunal dismissed my application for review.

   25. I would like to state that My visa was cancelled on 12 June 2018 and I had 21 days to apply for review of my decision with AAT. Accordingly, I can apply for review of decision before 3 July 2018

   26. I would live to state that Tribunal Made error in its judgement.

The hearing

1. The Applicant appeared representing himself before the Court on this day.

2. Counsel for the Minister advised the Court that the Applicant had previously been served with the First Respondent’s outline submissions to his email address that he had provided in his application.

3. The Applicant stated to the Court that he had not received the outline of submissions. He was given the opportunity to read the submissions and consider them before the matter proceeded.

4. In the course of the hearing, the Court asked the Applicant if he had any further matters that he wished to put before the Court in relation to whether there was an error in the Tribunal’s decision.

5. The Applicant said words to the effect that at the time of lodging the application, he was depressed and upset because of the Delegate’s decision to cancel his visa and that was the reason that he made an error in relation to the time for serving the application for review.

Consideration

1. The Tribunal decision dated 16 July 2018 sets out the background material. The application for review was a review of a decision of the Delegate of the Minister made on 12 June 2018 to cancel the Applicant’s Higher Education Sector (Class TU) (subclass 573) visa.

2. At [2] of the Tribunal’s decision record, the Tribunal noted that pursuant to section 347(1)(b) of the Migration Act 1958 (Cth) (‘the Act’) and rule 4.10 of the Migrations Regulations 1994 (Cth), an application for review of the decision had to be made within seven working days after the Applicant was notified of the decision.

3. At [3] of the Tribunal’s decision record, the Tribunal notes that the Applicant was notified of the decision by a letter dated 12 June 2018 handed to the Applicant on that day. The Tribunal was satisfied that the Applicant was notified of the decision in accordance with the statutory requirements and no issue has been raised by the Applicant in this proceeding that he was not notified of the decision on that day.

4. At [4] of the Tribunal’s decision record, the Tribunal notes that the Tribunal wrote to the Applicant on 25 June 2018 advising him of the preliminary view that the Tribunal did not have jurisdiction to deal with the matter by reason of the late lodgement of the application for review. The Tribunal reiterated that the last date for lodging the application for review was 21 June 2018 and the application was lodged on 22 June 2018.

5. At [5] of the Tribunal’s decision record, the Tribunal sets out a response that was received from the Applicant in relation to the invitation to respond. Omitting irrelevant parts, the Applicant stated:

   This is in response to the email I received recently regarding the delay in lodging my review for the application’s outcome. I just came to know that I was given 7 working days to lodge my review, which I unfortunately failed to lodge within the time-frame given due to some unforeseen reasons. Primarily, I had illusion that I have time till 26th June 2018 to lodge my response, I wasn’t fully aware that I had only 7 days until I got the email from respective department. Besides, I had some financial trouble to maintain my ongoing everyday spendings and lodge the file, as I was restriced to no work policy since after the recent outcome. Apart from that, I wasn’t familiar with the immigration’s law, which added the trouble, as I have to seek for the consultancy from someone professional and to lend money from known’s to afford their services.

6. The Notice of Intention to Consider Cancellation (‘NOICC’) was provided to the Application on 12 June 2018 (Court Book at pages 1 to 16). On Court Book page 5, the NOICC sets out that the time for lodging a review with the AAT was seven working days after the day on which the notice had been received.

7. That notice is clear in its terms and there has been no failure on the part of the Delegate to bring the decision to the attention of the Applicant.

Conclusion

1. Whilst the applicant’s failure to lodge his application for review within time by being late by only one day may have significant impact on him, there is no error in the decision of the Tribunal in finding that it did not have jurisdiction to deal with the application. Accordingly, the grounds for judicial review raise no arguable case for the relief claimed and must be dismissed pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:  

Date:  8 October 2019