Gadapa v Minister for Immigration
[2006] FMCA 1501
•24 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GADAPA v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1501 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a Student (Temporary) (Class TU) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.359C, 379G, 483A Migration Regulations 1994 (Cth), reg.572.211(3)(c) of Sch.2 |
| Chintala v Minister for Immigration [2006] FMCA 999 Yo Han Chung v University of Sydney & Ors [2002] FCA 186 Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board [1994] 1 SCR 202 Refugee Review Tribunal, Re; Ex Parte Aala (2000) 204 CLR 82 SAAP v Minister for Immigration [2005] HCA 24 |
| Applicant: | SURESH BABU GADAPA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG1770 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 6 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 24 November 2006 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Hindi interpreter |
| Advocate for the Respondents: | Mr A Cox |
| Solicitors for the Respondents: | Phillips Fox Solicitors |
ORDERS
The Migration Review Tribunal is joined as the second respondent.
The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.
The application filed on 6 June 2005 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1770 of 2005
| SURESH BABU GADAPA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 6 July 2005 for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”).
The Tribunal decision was made on 8 June 2005, affirming a decision of the delegate of the first respondent made on 7 December 2004, refusing to grant the applicant a Student (Temporary) (Class TU) visa. The applicant seeks unstated relief against the decision of the Tribunal.
The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].
Background
The Tribunal decision of Rachel Creek, reference N05/00116, contains the following background information. Mr Suresh Babu Gadapa, a national of India and born on 15 October 1976, applied for a Student (Temporary) (Class TU) visa on 5 November 2004. The delegate’s decision to refuse to grant the visa was made on 7 December 2004.(Court Book (“CB”) 41) The applicant made claims in respect of subclass 572 of Class TU to the Department. There was no evidence to suggest that the visa applicant met the key criteria of any other subclass. The issue was whether the applicant made his visa application within 28 days after his last substantive visa ceased to be in effect as required by Sch.2, sc.572.211(3)(c) of the Migration Regulations 1994 (Cth) (“the Regulations”). The last substantive visa Mr Gadapa held was a subclass 574 visa, which ceased on 31 August 2004. As the period from 31 August 2004 to 5 November 2004 was greater than the required 28 days, the Tribunal found that he did not satisfy sc.572.211(3)(c) of the Regulations and affirmed the delegate’s decision.(CB 41-42)
The applicant applied to the Tribunal for review of the delegate’s decision on 6 January 2005.(CB 26) On 22 March 2005, the Tribunal sent a letter to the applicant’s migration agent, inviting the applicant to comment on certain information.(CB 36-37) The applicant did not respond.(CB 41.6) The Tribunal proceeded to make its decision on
8 June 2005 without taking any further action to enable the applicant to appear before it: s.359C of the Act. On the same date, the Tribunal sent a letter to the applicant, through his agent, notifying him of the outcome of its decision.(CB 38-39)
Tribunal’s Findings and Reasons
A summary of the Tribunal’s findings and reasons are contained in the first respondent’s written submissions prepared by Mr Cox and I adopt paragraph 11 of those submissions:
In rejecting the review application, the Tribunal:
11.1Identified Subclass 572 as the relevant subclass and found that there was no evidence that indicated the applicant met the criteria for any of the other subclasses.
11.2Identified the central issue was whether the applicant made his visa application within 28 days after his last substantive visa ceased to be in effect as required by paragraph 572.211(3)(c) of Schedule 2 of the Regulations.
11.3Sent the applicant a s 359A letter on 22 March 2004, which the applicant did not respond to. The Tribunal then proceeded to decide the matter [pursuant to a 359C of the Act] on the evidence before it.
11.4Found that the applicant last held a substantive visa (being a Subclass 574 visa) which ceased on 31 August 2004.
11.5Found that the visa application [the subject of the review] had been made on 5 November 2004
11.6Found that the visa application under review was made more than 28 days after the applicant’s Subclass 574 visa expired.
11.7Found that paragraph 572.211(3)(c) and clause 572.211 of Schedule 2 to the Regulations had not been satisfied. On that basis, the Tribunal affirmed the decision under review.
Application for Review of the Tribunal’s Decision
On 6 July 2005, the applicant filed an application in this Court under s.39B of the Judiciary Act which claims:
1.I had exceptional circumstances which MRT did not take into consideration. Due to problems in my marital life I had to change my status many times.
The sole ground of the application is:
1.I had to change my decisions in terms of applying for student visa many times because of my wife’s changing decisions. Our relationship broke down and many efforts of resolution could not yield positive result. MRT did not consider my exceptional circumstances and made a decision against me.
Reasons
The applicant is a self-represented litigant who appeared with the assistance of a Hindi interpreter. The applicant first appeared before me on 2 August 2005 for first court directions. On that date, orders were made requiring the applicant to file an amended application and any supporting affidavit material. The matter was adjourned for further directions on 22 November 2005. On that date, the applicant appeared and indicated to the Court that he was experiencing personal difficulties which resulted in him being unable to file an amended application or to obtain legal assistance for the preparation of his case. Further orders were made on that date requiring the applicant to file an amended application by 31 January 2006. The matter was adjourned to a callover on 3 March 2006.
On 31 January 2006, the applicant wrote to the Court requesting an extension of time in which to file his amended application due to illness. The applicant was given an extension until 17 February 2006. When the applicant appeared at the scheduled callover on 3 March 2006, he was yet to have filed an amended application or any supporting affidavit material. The final hearing was scheduled for
6 October 2006.
At the commencement of the hearing on 6 October 2006, the applicant confirmed that he had not filed an amended application, written submissions or any affidavit material. When asked if he wished to make oral submissions to the Court, the applicant again requested a further extension of time in order to prepare his application and seek legal assistance. I said to the applicant that he had been given a number of opportunities to prepare his case and obtain assistance from a legal adviser. He had been provided with more enough time for case preparation, taking into account his claimed period of illness, although this has not been substantiated by an affidavit or medical certificates. The applicant then advised the Court that he would rely on his original application. He did not wish to make any oral submissions.
Mr Cox submits that despite what was said in the application, reg.572.211(3)(c) of the Regulations is a time of application criterion which makes no allowances for ‘exceptional circumstances’.
The Tribunal had no discretion to make a decision on that basis. I note that the delegate’s decision turned on the same basis as that of the Tribunal. On review before the Tribunal, the applicant provided nothing to contradict the stated facts as found by the delegate.
The application to the Tribunal gave no reasons why the delegate’s decision was wrong. It merely stated that “we shall submit details soon”.(CB 30) No such details have been provided.
As I have noted above at [4], the Tribunal wrote to the applicant by way of a s.359A notice inviting him to comment on the 28 day issue. The Tribunal received no response and therefore made a decision on the application without taking any further action.(CB 36-37)
Mr Cox drew the Court’s attention to the fact that the s.359A notice was sent to the applicant’s authorised recipient: s.379G of the Act. The authority given by the applicant is at Court Book 27. The Tribunal addressed the letter to the authorised recipient, Mr Sanjay Deshwal, personally and to the correct postal address of that person (PO Box 195, Turramurra NSW 2074). However, the letter was addressed to
Mr Deshwal at “S Deshwal and Associates” instead of “Australian Visa & Migration Consultancy Services” as provided for in the applicant’s Tribunal application.(CB 27, 36) Mr Cox submits that the difference in the company name does not constitute a breach of s.379A(4) of the Act and does not invalidate the s.359A letter.
Mr Cox relied on Chintala v Minister for Immigration [2006] FMCA 999 (Chintala) where the same principle was in issue. In that decision, Emmett FM found that the name and address for service of the authorised recipient was correct, and that neither the word “Solicitors” nor “Immigration” formed part of the name or address of the authorised recipient as contemplated by s.379G(1) of the Act: at [18]. In that case the issue arose as the representatives were named as “Parish Patience Immigration” instead of “Parish Patience Solicitors”. Her Honour identified the “name” in that matter as being “D L Bitel” and the “address” as “Level 1, 338 Pitt Street, Sydney NSW 2000”.
Her Honour’s finding on the meaning of “address” referred to the definitions of “address” and “address for service” in the Butterworths Encyclopaedic Australian Legal Dictionary:
Address
A private residence, place of business, or official location
Address for service
Practice and procedure
The place where a document can be served. In court proceedings, the plaintiff and defendant in their initial documents nominate the place where they will receive documents such as pleadings, or notices for discovery and interrogatories: (NSW) Supreme Court Rules Pt 9. The plaintiff nominates an address for service of the initiating process. The defendant nominates an address for service on a notice of appearance. The address for service may be a private or business address of a party, or the party's solicitor's office or document exchange box number: for example (NSW) Supreme Court Rules Pt 9 r 4(1)(d); Sheen v Burke [1993] 1 VR 584 . (emphasis added) (Chintala at [14])
Mr Cox submits that Chintala was correctly decided and that for the purpose of s.379G of the Act, the “name” of the authorised recipient is limited to an individual’s name. Similarly, Mr Cox submits that the “address” of the authorised recipient is limited to the place of business (in this case) of the authorised recipient.
Mr Cox submits that the Tribunal could only make one decision on the material placed before it. Subclause 572.211(3)(c) of Sch.2 of the Regulations states:
(3) An applicant meets the requirements of this subclause if:
(a) …
(b) …
(c) the application is made within 28 days (or within such period specified by Gazette Notice) after:
(i) the day when that last substantive visa ceased to be in effect; or
(ii) if that last substantive visa was cancelled, and the Migration Review Tribunal has made a decision to set aside and substitute the cancellation decision
or the Minister's decision not to revoke the cancellation -- the later of:
(A) the day when that last substantive visa ceased to be in effect; and
(B) the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision; and
(d) …
As the applicant did not satisfy this subclause, the delegate’s decision must be affirmed.
Mr Cox submits that discretionary relief may be refused under s.39B of the Judiciary Act if the legislation compels a particular outcome: SAAP v Minister for Immigration at [80] per McHugh J referring to Refugee Review Tribunal, Re; Ex Parte Aala (2000) 204 CLR 82 at [58] per Gaudron and Gummow JJ, citing Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board [1994] 1 SCR 202 at 228.
Conclusion
The applicant appeared at the Court hearing as a self-represented litigant with the assistance of a Hindi interpreter. Despite appearing in this Court on three previous occasions where orders were made to file an amended application giving complete particulars of each ground of review relied upon, the applicant did not comply with those orders. The applicant claims exceptional circumstances arising from his marriage but did not specify more. He has been given the opportunity to provide such information in an amended application, supporting affidavit or in oral evidence. This still places an obligation on this Court to independently consider whether any argument based on the material could have been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186. Mr Cox, appearing for the respondents, assisted the Court with written submissions which were supplemented by oral submissions, in response to the limited material filed by the applicant. Mr Cox brought the Court’s attention to an issue in respect of a notice issued by the Tribunal inviting the applicant to attend its hearing. I am satisfied that this in no way prevented the applicant from attending the Tribunal hearing, neither has there been any effort on the applicant’s part to place evidence before the Court that such a problem arose. It is not apparent that any other ground of review exists which would suggest that the Tribunal made a jurisdictional error in its decision-making process. Consequently, the applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
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