Gandhi v Minister for Immigration

[2016] FCCA 2986

FEDERAL CIRCUIT COURT OF AUSTRALIA

GANDHI & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2986

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – application to extend time – whether adequate and reasonable explanation for delay in making application – whether merit in grounds of substantive application – application for extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5(1), 66, 66(1), 66(2)(d)(iii), 66(2)(d)(iv), 338,

338(2), 347(2)(a), 347(3), 476, 477(1), 477(2)

Migration Regulations 1994 (Cth), Sch.2, cl. 885.221

Cases cited:
SZQGO v Minister for Immigration and Citizenship [2012] FCA 177; (2012) 125 ALD 449
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284

First Applicant: AAKET GIRISHKUMAR GANDHI

Second Applicant: ROMABEN AAKETKUMAR GANDHI

Third Applicant: AARSHI AAKET GANDHI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2740 of 2014

Judgment of: Judge Manousaridis

Hearing date: 11 November 2015

Delivered at: Sydney

Delivered on: 18 November 2016

REPRESENTATION

First applicant in person.

Solicitors for the Respondents:

Ms N Maddocks of

DLA Piper

ORDERS

1. The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as the second respondent.

2. 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 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2740 of 2014

AAKET GIRISHKUMAR GANDHI

First Applicant

ROMABEN AAKETKUMAR GANDHI

Second Applicant

AARSHI AAKET GANDHI

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants apply for an order under s.477(2) of the Migration Act 1958 (Cth) (Act) to extend the time prescribed by s.477(1) of the Act for making an application to this Court for a remedy under s.476 of the Act in relation to a decision made by the second respondent (Tribunal).

2. The application under s.477(2) of the Act is necessary because the Tribunal made its decision on 3 July 2014 and the applicants filed their application for judicial review on 1 October 2014. The applicants, therefore, are almost 8 weeks out of time.

Principles for extending time under s.477(2)

1. Under s.477(2) of the Act, the Court may order the extension of the 35 day time period if two things are satisfied. First, the application for such order has been made in writing to the Court, specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court is satisfied it is necessary in the interests of the administration of justice to make such order.

2. In SZRIQ v Federal Magistrates Court of Australia Foster J said:[1]

   The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context.  Commonly, those factors include: (a) whether there has been a reasonable and adequate explanation for the applicant’s delay; (b) whether there is any prejudice to the Minister; (c) whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.

   The factors to which I have referred at paragraph 47 above, although commonly deployed by judges when considering extensions of time of the character under consideration in the present case, are not prescribed under the relevant statutory provision (section 477, subsection (2), paragraph (b) of the Act) and cannot be said to exhaust all potentially relevant factors in every case.  They are simply sensible guidelines developed by the courts which have utility in most cases.

   [1] SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 at [47]-[48]

3. In most cases the most significant factor will be whether there is any merit in the claim the applicant wishes to make if an extension of time were granted. As was said by Murphy J in SZQGO v Minister for Immigration and Citizenship, in the context of extending time for making an appeal, the “court should not exercise its discretion to extend time to bring an appeal, even for a short period, if an appeal has no prospect of success”.[2] What his Honour there said applies equally to applications for an extension of time brought under s.477(2) of the Act.

   [2] [2012] FCA 177; (2012) 125 ALD 449 at [29]

4. I first turn to the applicant’s explanation for delay. 

Explanation for delay

1. The first applicant swore an affidavit dated 1 October 2014 in which he  stated the “application for extension of time is in the interest of natural justice because I only received the notification and decision record from the Migration Review Tribunal on 4 September 2014”, that he “did not receive any letter from the Migration Review Tribunal by post in the months of July or August 2014”, and that he received a copy of the Tribunal’s decision by email after he “made inquiries with the Migration Review Tribunal on 4 September 2014”. The first respondent (Minister) accepts the applicant’s explanation for the delay but opposes the extension of time application because the Minister submits the substantive application lacks merit.

Merits of proposed grounds

1. Before I consider the merits of the proposed grounds, it will be necessary to set out the relevant background.

Background

1. The applicants are citizens of India. The first and second applicants are husband and wife, and the third applicant is their child. On 14 January 2011 they applied for Skilled (Residence) (class VB) Skilled Independent (subclass 885) visas (Skilled visa). The first applicant was the primary applicant, and the second and third applicants were secondary applicants to the visa application.

2. On 2 May 2014 a delegate of the Minister refused to grant the applicants the visas because the first applicant did not satisfy clause 885.221 to Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations). The delegate informed the applicants of the decision by sending a letter dated 2 May 2014 (Delegate’s Notification Letter) by email to the applicants to which there was attached the delegate’s Decision Record.[3] Given the grounds the applicants wish to raise, it will be necessary to say something more about the Delegate’s Notification Letter.

   [3] CB188-213

3. Immediately after stating the delegate had refused the application for a Skilled visa, and directing the applicants to the Decision Record, the letter has a section titled “Review rights”. That section of the letter states that the decision “can be reviewed”, and that the applicants are entitled to apply to the Tribunal for a review of the decision. The letter states the application must be made within 21 calendar days after the applicants are taken to have received the letter. The letter then states that an application for review can be lodged in person, faxed, or posted to any registry of the Tribunal, and that certain registries of the Administrative Appeals Tribunal also accept applications for review on behalf of the Tribunal. The letter then identifies registries of the Tribunal. The letter then has a section titled “Lodging an application for review online”. The letter states applications can also be lodged online, and gives the Internet address at which that may be done.

4. At the end of the letter, after the space where the delegate is to sign the letter, there is a heading “Attachment(s)” which identifies four documents. One of the documents is “M10 Migration Review Tribunal brochure”. That appears to be a reference to a document titled “MIGRATION REVIEW TRIBUNAL – THE REVIEW PROCESS [M10]” (M10 Document).[4] Under the heading “Who can apply for review?” the M10 Document contains information that includes the following:

   In some cases the review applicant must be within Australia at the time of decision or at the time the application for review is lodged, or both. The tribunal cannot provide advice on individual circumstances, however you may seek advice on these issues from a registered migration agent or other registered provider of immigration assistance. For further information please see the ‘Should you seek assistance with your application?’ section below.

   [4] CB192-196

5. On 16 May 2014 the applicants applied to the Tribunal for a review of the delegate’s decision. The applicants did so by lodging an application online. The applicants, however, were not in Australia at the time they lodged the application.

6. At the hearing before me, the first applicant (applicant), who is not legally represented, stated that before he completed the online form of application and lodged that application with the Tribunal, he read the terms and conditions which appeared on the screen. There is in evidence a copy of the terms and conditions that appeared on the Tribunal’s website on 3 November 2014. The applicant said that those terms and conditions were the same as the terms and conditions he read when he lodged the application for review. One of those terms was as follows:

   if you are outside Australia when the Tribunal receives the application, it is taken to be received in the Tribunal registry at Australian Capital Territory local time

7. The applicant stated to me that, on the basis of this term, he believed that he could apply to the Tribunal for a review of the delegate’s decision, even though he was overseas. Although the applicant did not give evidence of these matters, the Minister was prepared to assume, for the purposes of the hearing before me, that what the applicant said to me was true. I will deal with the application on the same assumption.

8. On 30 May 2014 the Tribunal wrote to the applicants inviting them to comment on whether the applications filed by the applicants were valid. The Tribunal indicated in its letter that for the applications to have been valid, the applicants must have been in Australia at the time the applications were lodged, and because the applicants were offshore at the time the applications were lodged, the Tribunal had formed a preliminary view that the applications were not valid.

9. The applicant responded to the Tribunal’s letter on 23 June 2014. The applicant accepted the applicants “were overseas when my 885 visa got rejected”, and explained why the applicants travelled to India at that time.

10. The Tribunal was not satisfied the applicants were physically present in the migration zone when the application for review was made on 16 May 2014. The Tribunal referred to s.347(2)(a) and s.347(3) of the Act, noting that in “the case of an MRT reviewable decision described in s.338(2), an application for review may only be made by the non-citizen who is the subject of the decision and is physically present in the migration zone when the application for review is made”.[5] The Tribunal noted it could not waive the relevant provisions of the legislation. Relying on movement records maintained by the Department of Immigration and Border Protection, which indicated all applicants were outside Australia when the review application was lodged with the Tribunal on 16 May 2014, the Tribunal found the applicants were not in the migration zone at the relevant time, and, as a result, the application for review was not a valid application and the Tribunal did not have jurisdiction.

    [5] CB261, [3]

11. It is beyond argument the Tribunal was correct in concluding it did not have jurisdiction to determine the application for review which the applicants lodged with the Tribunal. The starting point is s.338 of the Act which sets out decisions which are reviewable by the Tribunal. At the relevant time, such decisions were referred to as “MRT-reviewable decisions”. The delegate’s decision in this case fell within s.338(2) of the Act which, at the relevant time, provided, among other things, that a decision is an MRT-reviewable decision if the visa could be granted while the non-citizen is in the migration zone, the non-citizen made the application for the visa while in the migration zone, and the decision was not made when the non-citizen was in immigration clearance or had been refused immigration clearance and had not subsequently been immigration cleared.

12. Sub section 347(3) of the Act provided:

    If the MRT‑reviewable decision was covered by subsection 338(2), (3), (3A) or (4), an application for review may only be made by a non‑citizen who is physically present in the migration zone when the application for review is made.

13. Section 5(1) of the Act defines “migration zone” to mean:

    the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes:

    (a) land that is part of a State or Territory at mean low water; and

    (b) sea within the limits of both a State or a Territory and a port; and

    (c) piers, or similar structures, any part of which is connected to such land or to ground under such sea;

    but does not include sea within the limits of a State or Territory but not in a port.

14. Given that under s.347(3) of the Act the applicants could only have made an application for review to the Tribunal if they were physically present in the “migration zone”, and, given that at the time they made the application to the Tribunal the applicants were not in the migration zone, it is beyond argument that the Tribunal did not have jurisdiction to consider the applicant’s application for review.

Grounds of application

1. The application contains the following four grounds of review:

   1. The Minister for Immigration and Border Protection failed to properly notify the applicant of the review rights thereby denying the applicant procedural fairness.

   PARTICULARS

   The delegate of the Minister for Immigration and Border Protection failed to notify the applicant in the letter dated 2 May 2014 that the applicant is required to be in the migration zone to apply for the review of the decision.

   2. The Migration Review Tribunal failed to be fair and just in dealing with the review application pursuant to section 353 of the Migration Act 1958.

   PARTICULARS

   (a)The Migration Review Tribunal failed to determine that the letter dated 2 May 2014 from the Department of Immigration and Border Protection (DIBP) did not inform the applicant to be in Australia when applying for a review of the decision.

   (b)The Migration Review Tribunal was not fair or just in dealing with the applicant considering the applicant was unaware of the requirement to remain in Australia on applying for review of the DIBP decision.

   3. The Migration Review Tribunal failed to have regard to relevant consideration thereby denying the applicant procedural fairness

   PARTICULARS

   (a)The Migration Review Tribunal failed to give proper regard to the DIBP letter dated 2 May 2014 and the lack of information given to the applicant to apply for a review of the decision.

   (b)The Migration Review Tribunal failed to determine or take into account that the applicant was actually not notified by DIBP that he was required to be in Australia at the time of making an application for a review of the decision.

   4. The decision of the Migration Review Tribunal is contrary to natural justice.

   PARTICULARS

   (a)The intention of the legislative provisions of the Migration Act 1958 relevant for the review of decision is to allow the person natural justice. The Migration Review Tribunal denied the applicant natural justice by determining that the Tribunal did not have jurisdiction as the applicant was not in Australia.

Ground 1

1. The applicants claim the Minister denied them procedural fairness because the Delegate’s Notification Letter failed to notify the applicants that the applicants were required to be in the migration zone at the time they applied to the Tribunal for review of the delegate’s decision.

2. Subsection 66(1) of the Act provides that when “the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way”. Subsection 66(2) provided at the relevant time as follows:

   Notification of a decision to refuse an application for a visa must:

   (a)if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa--specify that criterion; and

   (b)if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa--specify that provision; and

   (c)unless subsection (3) applies to the application--give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and

   (d) if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500—state:

   (i)that the decision can be reviewed; and

   (ii)the time in which the application for review may be made; and

   (iii)who can apply for the review; and

   (iv)where the application for review can be made.

3. The only parts of s.66 of the Act that could conceivably support the contention that the Minister was required to inform the applicants that they had to be in the migration zone at the time they applied for review are s.66(2)(d)(iii), and s.66(2)(d)(iv). On its face, s.66(2)(d)(iii) of the Act only requires that the Minister identify the person or persons who can apply for review. I do not think there is any reasonably arguable case that s.66(2)(d)(iii) may be construed as requiring the Minister to provide any further information, such as the circumstances in which the named persons can make an application for review, or the characteristics the persons must possess in order to be persons who can apply for review.

4. Even if this construction of s.66(2)(d)(iii) of the Act were correct, the applicants would still not have reasonable prospects of succeeding on ground 1. The M10 Document did represent that, in some cases, an applicant must be in Australia at the time the application for review is lodged, and that applicants may seek advice on these issues from a registered migration agent or other registered provider of immigration assistance. In my opinion, if s.66(2)(d)(iii) of the Act required the Minister to specify not only the identity of the persons who can apply for review, but also the circumstances in which the named persons can make an application for review, or the characteristics the persons must possess in order to be persons who can apply for review, the applicants would have no reasonable prospects of succeeding in establishing that the M10 Document did not give them notice of these matters.

5. I have also considered whether s.66(2)(d)(iv) of the Act raises any reasonably arguable case that the Minister was bound to inform the applicants they had to be in the migration zone at the time they applied to the Tribunal for review. In my opinion, however, such an argument is bound to fail. The expression “where the application can be made” simply refers to the place at which an application can be made; that is, the place at which the person affected can do that which is necessary for the person to do to apply for a review of the decision. The expression, construed in its context, cannot reasonably be read as meaning something to the effect of “the place the applicant must be in order to make an application”. If that were its intended meaning, there would be no provision in s.66 about where persons affected by the decision could make an application for review.

6. Finally, even if the applicants are correct in contending they ought to have been informed they had to be in the migration zone at the time they applied for review to the Tribunal, that would not alter the fact that, at the time they applied to the Tribunal, the applicants were not in the migration zone. In those circumstances, there is no reasonably arguable case the Tribunal had jurisdiction to determine the applicants’ application for review.

1. Ground 1, therefore, is not reasonably arguable, and would have no reasonable prospects of success if an order extending time were made.

Ground 2

1. This ground makes two claims. The first is that the Tribunal failed to determine that the Delegate’s Notification Letter did not inform the applicants that they had to be in Australia at the time they wished to exercise their right to apply to the Tribunal for a review of the delegate’s decision. The second claim is that the Tribunal was not fair or just in its dealings with the applicants, given that the applicants were unaware of the requirement that they had to be in Australia at the time they applied to the Tribunal for review of the delegate’s decision.

2. Neither complaint raises a reasonably arguable case of jurisdictional error. As I have already concluded, it is not reasonably arguable that the Minister was required to inform the applicants that they had to be in the migration zone if they were effectively to exercise their rights to apply to the Tribunal to review the delegate’s decision. Further, whether or not the Tribunal was fair or unfair in not accepting the applicants had made a valid application for review because the applicants were not in the migration zone cannot be relevant to whether the applicants were entitled to make an application to the Tribunal when they were outside the migration zone. It is beyond argument that it was not open to the Tribunal to consider the applicants’ application for review of the delegate’s decision once the Tribunal was justifiably satisfied, as it was in this case, that the applicants were not in the migration zone at the time they lodged their application for review.

3. Ground 2, therefore, also is not reasonably arguable, and would have no reasonable prospects of success if an order extending time were made.

Ground 3

1. This ground claims the Tribunal failed to have regard to two relevant considerations. The first is the Tribunal failed to have proper regard to the lack of information contained in the Delegate’s Notification Letter. By that, the applicants appear to claim the Tribunal ought to have had regard to the absence from the Delegate’s Notification Letter of information to the effect that a valid application for review of the delegate’s decision can only be made when the applicants are in the migration zone. For reasons I have given, there are no reasonably arguable grounds for claiming the Minister was required to inform the applicants that a valid application for review to the Tribunal could only have been made when the applicants were in the migration zone. There are, therefore, no reasonably arguable grounds for claiming the Tribunal was obliged to have regard to the Delegate’s Notification Letter not containing such information.

2. The second consideration this ground claims the Tribunal failed to take into account was the applicants’ not having been informed by the delegate that the applicants had to be in the migration zone at the time they were to apply to the Tribunal for review. For reasons I have given, there is no reasonably arguable case that the Tribunal was required to take into account the delegate’s notification letter not informing the applicants of the necessity of the applicants being in the migration zone at the time they exercise their rights to apply to the Tribunal for review of the delegate’s decision.

3. Even if the Tribunal ought to have, but failed to have regard, to these considerations, that would not alter the fact that, at the time they applied to the Tribunal, the applicants were not in the migration zone. In those circumstances, there is no reasonably arguable case the Tribunal had jurisdiction to determine the applicants’ application for review.

4. Ground 3, therefore, is not reasonably arguable, and would have no reasonable prospects of success if an order extending time were made.

Ground 4

1. Ground 4 is a bald assertion that the intention of the Act is to afford persons natural justice, and that the Tribunal denied the applicants natural justice by determining it did not have jurisdiction because the applicants were not in the migration zone at the time they applied to the Tribunal. That ground is not reasonably arguable. Sub section 347(3) of the Act is unarguably clear that a person who wishes to apply to the Tribunal for review of a delegate’s decision must be in the migration zone at the time the person makes the application. The consequences of an applicant’s not complying with that requirement are not determined by reference to any notion of fairness by the Tribunal.

Other matters

1. As I have already noted, the applicant submitted to me that the terms and conditions that appeared on the Tribunal’s website at the time he prepared and lodged online his application for review represented that the applicants could lodge an application for review with the Tribunal, even though they were outside Australia. There are three points to note about that submission. First, considered on their own, the terms and conditions could reasonably be understood to represent that a person who is outside Australia can make an application for review. But there are no reasonably arguable grounds for contending that the terms and conditions represented that any person who has a right to apply for review can make a valid application whether that person is inside or outside Australia. Second, when considered together with the Delegate’s Notification Letter, and in particular the M10 Document which was attached to that letter, it is even more difficult to contend that the terms and conditions represented that any person who has a right to apply for review could make a valid application, whether that person is inside or outside Australia. Third, even if the terms and conditions can reasonably be interpreted as making such a representation, there are no reasonably arguable grounds for contending that this relieved the applicants from having to satisfy s.347(3) of the Act in order to make a valid application to the Tribunal for review of the delegate’s decision.

Conclusion and disposition

1. Although I am satisfied the applicants have given a reasonable explanation for not having applied to this Court within the 35-day period prescribed by s.477(1) of the Act, I am not satisfied it is necessary in the interests of the administration of justice that I make an order under s.477(2) of the Act extending time because I am of the opinion that the grounds on which the applicants intend to rely are not reasonably arguable, and have no reasonable prospects of success.

2. I propose, therefore, to dismiss the application for extension of time. I also propose to order the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 18 November 2016