Giri v Minister for Immigration

[2014] FCCA 2725

FEDERAL CIRCUIT COURT OF AUSTRALIA

GIRI v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2725

Catchwords:
MIGRATION – Application for an extension of time to review decision of Migration Review Tribunal – application refused.

Legislation:

Migration Act 1958 (Cth), ss.360, 363A, 477

Hasran v Minister for Immigration [2010] FCAFC 40

Applicant: UJJWOL BIKRAM GIRI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2672 of 2014

Judgment of: Judge Driver

Hearing date: 21 November 2014

Delivered at: Sydney

Delivered on: 21 November 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms N Blake of Clayton Utz

INTERLOCUTORY ORDERS

1. The application for an extension of time, pursuant to s.477(2) of the Migration Act 1958 (Cth) be refused.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2672 of 2014

UJJWOL BIKRAM GIRI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application filed on 26 September 2014 seeking judicial review of a decision of the Migration Review Tribunal (Tribunal) made on 31 May 2013. The applicant, Mr Giri, identified in that application that he required an extension of time, pursuant to s.477(2) of the Migration Act 1958 (Cth) (Migration Act). He states in support of the request for an extension of time that he had limited knowledge about migration rules, and that his migration agent did not inform him of the decision of the Tribunal. He also notes the decisions of the Minister’s delegate and the Tribunal.

2. The proposed judicial review application contains three grounds of review:

   1. DIBP did not provide me to continue study in Australia. It also did not use its power for my right to remain legal in Australia.

   2. MRT failed to use its power to allow me to study and remain legal in Australia.

   3. DIBP and MRT both decisions are not in accordance with the immigration rules; the decisions are not in accordance with the law that discretion should have been exercised in a different way to how it was legally exercised by the initial decision maker.

3. The application was supported by a short affidavit, which is not currently material.  The Minister filed a response to the application on 2 October 2014, which noted that the application is 448 days out of time.  The Minister opposes an extension of time, and does not admit any jurisdictional error. 

4. The matter came before me on 11 November 2014. At that time I gave Mr Giri the opportunity to file and serve affidavit evidence in support of an extension of time, and listed the matter for a hearing on that issue today.

5. Mr Giri filed an affidavit on 17 November 2014. I received that affidavit. Mr Giri was not required for cross-examination. In the affidavit, Mr Giri states that he was not aware of the Tribunal decision because he did not receive correspondence from the Tribunal. He had a migration agent who failed to inform him of the progress of the review before the Tribunal. Mr Giri believes that the agent was negligent in not informing him of the Tribunal decision. Mr Giri further states that the student visa refusal, presumably by the delegate, caused him a lot of stress and anxiety. He had sleep problems and worried. He thought his mental condition was deteriorating. He consulted a psychologist, who diagnosed that he had been suffering from significant stress and depression. Mr Giri says that this impacted upon his ability to seek judicial review in a timely way.

6. Annexed to the affidavit is a psychologist’s report dated 24 October 2014. That report recounts the history that Mr Giri gave the psychologist. The psychologist confirms that that history appears to have caused Mr Giri significant stress and depression. The psychologist notes that Mr Giri is hopeful of being able to have the Tribunal decision judicially reviewed, and that this has led to some improvement in his condition.

7. Parliament has prescribed a period of 35 days in s.477(1) of the Migration Act for an applicant to seek judicial review in this Court of a decision of the Tribunal. Subject to the Court’s discretion in s.477(2), applications received outside that time period cannot be dealt with by the Court.

8. The Court can grant an extension of time if satisfied that it is in the interests of the administration of justice to do so.  Factors bearing on that exercise of discretion include the length of the delay, the explanation for the delay, and whether the application, if accepted, raises a serious question to be tried. 

9. The length of the delay in the present case is a very long one.  Mr Giri’s explanation, while on its face frank and plausible, does not really explain why he made no inquiries of his migration agent about the status of the review.  Mr Giri conceded from the bar table that he was apprehensive about the Tribunal’s decision, and chose not to enquire. 

10. I accept the possibility that Mr Giri’s migration agent may have been at fault.   I note from the database of the Migration Agent’s Registration Authority that the agent ceased to be a registered migration agent on 8 March 2014.  However, if the agent was at fault in not notifying Mr Giri of correspondence from the Tribunal, Mr Giri was also at fault in making no enquiry of his agent. 

11. In the circumstances, and taking into account Mr Giri’s psychological problems, I am not persuaded that he has sufficiently explained the very lengthy delay in coming to court. 

12. Even if Mr Giri had been able to persuade me that he had a reasonable explanation for the delay, there would, in my view, be no utility in granting an extension of time. 

13. The court book, which I have before me, discloses that although Mr Giri applied to the Tribunal for review on his own, he subsequently appointed a migration agent who was nominated as his authorised recipient.  The Tribunal was thereupon required to correspond with the agent, and did so.  Critically, the Tribunal issued an invitation to comment or respond to information by letter dated 2 May 2013[1].

    [1]  Court Book, page 24

14. The court book discloses that the invitation was sent by facsimile on the day that the letter was dated to the facsimile number nominated by the agent. There is no indication that the transmission was unsuccessful. Indeed, there is some indication that it was successful. There does not appear to be any available argument that the Tribunal failed to meet its obligation to direct correspondence to the correct address within the proper time.

15. The Tribunal records at [10] of its reasons[2] that no response to the invitation was received. The consequence was that Mr Giri lost his entitlement to appear before the Tribunal pursuant to s.360(3) of the Migration Act. Further, as noted by the Tribunal at [11] of its reasons, the effect of s.363A of the Migration Act is that the Tribunal lost any power to permit him to appear[3]. 

    [2] court book, page 39

    [3] See Hasran v Minister for Immigration [2010] FCAFC 40

16. On the limited material before the Tribunal, there was no evidence that Mr Giri was at the time enrolled in any course of study.  Mr Giri from the bar table admitted that he was not then enrolled.  It follows that even if he had received the correspondence and responded to it, and even if he had appeared before the Tribunal, it is most unlikely that the outcome could have been any different. 

17. In the circumstances, it is understandable that Mr Giri was apprehensive about the Tribunal decision and was not keen to discover the outcome. 

18. I conclude that it would not be in the interests of the administration of justice to grant the extension of time Mr Giri seeks. I will order that the application for an extension of time, pursuant to s.477(2) of the Migration Act be refused.

19. The consequence is that the application before the Court is incompetent.

20. The Minister seeks an order for costs in the amount of $3,326.  Mr Giri doubted his capacity to pay, but I am satisfied that costs in the amount sought have been reasonably and properly incurred when assessed on a party and party basis. I will order that Mr Giri is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  25 November 2014