Gjoni v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 597
•26 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Gjoni v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 597
File number(s): ADG 364 of 2019 Judgment of: JUDGE EGAN Date of judgment: 26 March 2021 Catchwords: MIGRATION – Application for Student Visa – application for review of decision of delegate lodged out of time – no jurisdiction on the part of the Tribunal to hear and determine the application for review – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth), s 347(1)(b).
Migration Regulations 1994 (Cth), r 4. 10, Schedule 4, PIC 4012A.
Cases cited SZJQC v Minister for Immigration and Citizenship & Anor [2008] HCASL 66.
DZAFH v Minister for Immigration and Border Protection [2017] FCA 984.Number of paragraphs: 16 Date of last submission/s: 22 March 2021 Date of hearing: 22 March 2021 Place: Brisbane Applicant: Francesk Gjoni appearing in person on behalf of the Applicant as Litigation Guardian. Solicitor for the First Respondent: Australian Government Solicitor Counsel for the First Respondent: Ms Battiste Second Respondent: Submitting appearance save as to costs ORDERS
ADG 364 of 2019 BETWEEN: BLERTA GJONI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
26 MARCH 2021
IT IS ORDERED THAT:
1.The Application for Review filed on 9 October 2019 be dismissed.
2.The Applicant’s Litigation Guardian pay the First Respondent’s costs of and incidental to the Application for Review, fixed in the amount of $3,300.00.
REASONS FOR JUDGMENT
JUDGE EGAN
The applicant is a child citizen of Italy having been born on 19 July 2007. She arrived in Australia on a tourist visa which was due to expire on 13 March 2018.
On 12 March 2018, the applicant’s mother applied for a Guardian Visa in respect of her two (2) children, namely Luigj and Blerta Gjoni (the applicant). Applications for Student (Temporary) (Class TU) (Subclass 500) Visas were lodged in respect of each such child on 13 March 2018. The applicant’s mother was nominated as the person with whom each child intended to reside whilst they were in Australia.
On 5 June 2018, the Department sent a letter to the applicant asking for further information concerning the visa application. [1]
[1] Court Book pp. 55 – 60 inclusive.
Though certain documents were provided on 25 June 2018, such documents did not constitute evidence which established guardianship. The request period had expired and no further correspondence had been received from the applicant.
On 6 August 2018, a delegate of the Minister refused to grant to the applicant a Student Visa on the ground that the applicant did not satisfy the criteria as set out in PIC 4012A of Schedule 4 to the Migration Regulations 1994 (Cth) (‘the Regulations’). PIC 4012A of Schedule 4 to the Regulations relevantly provided as follows:
“4012A In the case of an applicant who has not turned 18:
(a) the application expresses a genuine intention to reside in Australia with a person who:
(i) is a parent of the applicant or a person who has custody of the applicant; or
(ii) is:
(A) a relative of the applicant; and
(B) nominated by a parent of the applicant or a person who has custody of the applicant; and
(C) aged at least 21; and
(D) of good character; or
(b) a signed statement is given to the Minister by the education provider for the course in which the applicant is enrolled confirming that appropriate arrangements have been made for the applicant's accommodation, support and general welfare for at least the minimum period of enrolment stated on the applicant's:
(i) confirmation of enrolment; or
(ii) AASES form;
plus 7 days after the end of that period; or
(c) if the applicant is a Foreign Affairs student or a Defence student, appropriate arrangements for the applicant's accommodation, support and general welfare have been approved by:
(i) in the case of a Foreign Affairs student--the Foreign Minister; and
(ii) in the case of a Defence student--the Defence Minister.”
Because PIC 4021A had not been satisfied, the delegate refused to grant the visa on the additional ground that the provisions of r. 500.217 to the Regulations had not been satisfied. Regulation 500.217 relevantly provided as follows:
“500.217
(1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4010, 4013, 4014, 4020 and 4021.
(2) If the applicant has not turned 18, public interest criteria 4012A, 4017 and 4018 are satisfied in relation to the applicant.
(3) If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.
(4) The applicant (other than a Foreign Affairs student or a Defence Student) satisfies public interest criterion 4005.
(5) The applicant, being a Foreign Affairs student or a Defence Student, satisfies public interest criterion 4007.”
A review application of the decision of the delegate was lodged with the Tribunal on 28 August 2018.
On 6 September 2019, the Administrative Appeals Tribunal (‘the Tribunal’) found that the applicant’s Application for Review of the decision of the delegate was lodged with the Tribunal out of time and that, therefore, the Tribunal had no jurisdiction to hear and determine such application.
In holding that there was a twenty-one (21) day time limit for the lodging of an Application for Review of a decision of a delegate, the Tribunal relied upon the provisions of s. 347(1)(b) of the Migration Act 1958 (Cth) (‘the Act’) and r. 4.10 of the Regulations which respectively provided as follows:
“347 Application for review of Part 5-reviewable decisions
(1) An application for review of a Part 5-reviewable decision must:
(a) …
(b) be given to the Tribunal within the prescribed period, being a period ending not later than:
(i) if the Part 5‑reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—28 days after the notification of the decision; or
(ii) if the Part 5‑reviewable decision is covered by subsection 338(5), (6), (7) or (8)—70 days after the notification of the decision; or
(iii) if the Part 5‑reviewable decision is covered by subsection 338(9)—the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision”
“4.10 Time for lodgement of applications with Tribunal (Act, s 347)
(1) For paragraph 347(1)(b) of the Act, the period in which an application for review of a Part 5‑reviewable decision must be given to the Tribunal:
(a) if the Part 5‑reviewable decision is mentioned in subsection 338(2) or (7A) of the Act—starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received; or
(b) if the Part 5‑reviewable decision is mentioned in subsection 338(3) or (3A) of the Act—starts when the applicant receives notice of the decision and ends at the end of 7 working days after the day on which the notice is received; or
(c) if the Part 5‑reviewable decision is mentioned in subsection 338(5), (6), (7) or (8) of the Act—starts when the applicant receives notice of the decision and ends at the end of 70 days after the day on which the notice is received; or
(d) if the Part 5‑reviewable decision is prescribed under subsection 338(9) of the Act—starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received.
(2) However, the period in which an application by a detainee for review of a Part 5‑reviewable decision must be given to the Tribunal:
(a) in the case of an application for review of a decision of a kind mentioned in subsection 338(4) of the Act—starts when the detainee receives notice of the decision and ends at the end of 2 working days after the day on which the notice is received; or
(aa) in the case of an application for review of a decision to which paragraph 4.02(4)(f) applies—starts when the detainee receives notice of the decision to refuse to grant the visa mentioned in subparagraph 4.02(4)(f)(ii) and ends at the end of 2 working days after the day on which the notice is received; or
(b) in any other case—starts when the detainee receives notice of the decision and ends at the end of 7 working days after the day on which the notice is received.
(2A) For subparagraph 347(1)(b)(iii) of the Act, the prescribed number of days in respect of a Part 5‑reviewable decision prescribed under subsection 338(9) of the Act is 28 days.
Note:For subparagraph 347(1)(b)(iii) of the Act, there must be a prescribed number of days in respect of kinds of decisions covered by subsection 338(9) of the Act. The prescribed period for applications for review must end not later than the prescribed number of days after notification of the decision.”
The Tribunal found that the applicant was deemed to have been notified of the relevant decision by 6 August 2018 and that, therefore, the application was one (1) day late.
In SZJQC v Minister for Immigration and Citizenship & Anor [2008] HCASL 66, Kirby and Heydon JJ said at [2] – [4] as follows:
“[2] Notification of that decision was sent to the applicant's nominated postal address on 3 May 2006. The applicant is taken to have received the notification by 12 May 2006. However, the application to the Tribunal, dated 12 June 2006, was not received until 13 June 2006. This meant that the application for review was outside the 28 days time limit expressed in s 412(1)(b) of the Migration Act 1958 (Cth) and Regulation 4.31(2)(b) of the Migration Regulations 1994 (Cth). At the very latest, on the foregoing chronology, the 28 day period would have expired on 9 June 2006.
[3] There is no statutory power for the Tribunal, or anyone else, to extend the time limit, whatever the reasons for the default. The applicant has asserted that at all times he acted promptly by approaching a registered migration agent and instructing her to ensure the protection of his rights. He states that he trusted the registered migration agent to help him "competently, diligently and fairly"; that he was very disappointed that this had not occurred; that it had involved a breach of duty to him; and that he did now not trust any migration agent. He contended that, if correct, the unchangeable time limit would deprive him of substantive rights without any judicial consideration of the "substantial justice and the merits of the case" as s 420 of the Act ordinarily requires. He complains that the delay "is not my fault" and that he had been unaware of the "time limit of my right to appeal".
[4] Upon the assumption that the mandatory time limit in this instance is a valid law of the Commonwealth, no error is shown in the reasoning of the Federal Court and the Federal Magistrate. Without a challenge to the constitutional validity of the time limit, there is no prospect that the decisions below could be altered. The applicant does not specifically challenge the validity of the subject law. On that footing, there is no prospect that an appeal to this Court would enjoy any prospect of success. The application for special leave must therefore be refused.”
In DZAFH v Minister for Immigration and Border Protection [2017] FCA 984 at [5], Davies J said as follows:
“[5] The FCC was correct to hold that the seventh working day commencing on the day when the appellant received notification of the delegate’s decision was 18 November 2014 and that as an application was not lodged with the Tribunal within the requisite time, the Tribunal had no jurisdiction to review the delegate’s decision. It is well established that an application that is not given to the Tribunal within the requisite period prescribed by s 412(1)(b) of the Act and regulation 4.31 of the Migration Regulations is not valid and the Tribunal has no jurisdiction to review an application given out of time: the authority is SZULH v Minister for Immigration and Border Protection [2015] FCA 835 and the cases cited at [17].”
The Court agrees with the decision of the Tribunal for the reasons given by it. The Tribunal did not err in finding that it had no jurisdiction to hear and determine the application before it.
The applicant has not demonstrated any jurisdictional error on the part of the Tribunal.
The Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 26 March 2021
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