Godara v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 358
•26 February 2021
AMENDED PURSUANT TO RULE 16.05 ON 20 JULY 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Godara v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 358
File number(s): BRG 243 of 2020 Judgment of: JUDGE EGAN Date of judgment: 26 February 2021 Catchwords: MIGRATION – Application for review of decision of delegate filed out of time – Tribunal lacked jurisdiction to hear and determine application – no jurisdictional error established – application dismissed. Legislation: Migration Regulations 1994 (Cth), rr 4.10, 4.11, Schedule 2, cl 187.233(3) Cases cited: SZJQC v Minister for Immigration and Citizenship & Anor [2008] HCASL 66.
DZAFH v Minister for Immigration and Border Protection [2017] FCA 984.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 .
Number of paragraphs: 15 Date of last submission/s: 25 February 2021 Date of hearing: 25 February 2021 Place: Brisbane Applicant: The Applicant appeared in person on her own behalf Solicitor for the First Respondent: Ms Topham of Minter Ellison Second Respondent: Submitting appearance save as to costs FEDERAL CIRCUIT COURT OF AUSTRALIA
Godara v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 358
CORRIGENDUMJUDGE EGAN:
On 20 July 2021, this judgment was amended to correct an erroneous reference at paragraph [8] to r. 4.31 of the Migration Regulations 1994 (Cth) (‘the Regulations’) as being the provision which prescribes the time limit for the making an application for review to the Administrative Appeals Tribunal. At paragraph [8], this judgment now correctly records r. 4.10 as being the provision which prescribes the time limit for the making of an application for review to the Administrative Appeals Tribunal for a Part 5 reviewable decision, namely a period of twenty-one (21) days.
I certify that the preceding paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of Judge Egan. Associate:
Dated: 20 July 2021
ORDERS
BRG 243 of 2020 BETWEEN: AKVINDER KAUR GODARA
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 FEBRUARY 2021
IT IS ORDERED THAT:
1.The Originating Application for Review filed on 21 April 2020 be dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $6,100.00.
REASONS FOR JUDGMENT
JUDGE EGAN:
The applicant was a citizen of the Republic of India who applied for a Regional Employer Nomination (Class RN) Regional Sponsored Migration Scheme (Subclass 187) Visa on 11 September 2017.
On 19 June 2019, a delegate of the Minister refused the visa application on the basis that the applicant did not meet the relevant criteria as set out in cl. 187.233(3) of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’), which clause relevantly provided as follows:
“187.233
…
(3) The Minister has approved the nomination.”
The applicant was duly notified of the delegate’s decision.
On 12 July 2019, the applicant sought review of the delegate’s decision by the Administrative Appeals Tribunal (‘the Tribunal’).
On 19 November 2019, the Tribunal invited the applicant to comment on the validity of the application for review on the basis it was filed out of time by two (2) days.
In response to the 19 November 2019 letter sent to her by the Tribunal, the applicant agreed that the application had been filed out of time before the Tribunal
On 31 March 2020, the Tribunal found that it did not have jurisdiction to determine the application for review made out of time.
Regulations 4.10 and 4.11 of the Regulations relevantly provided as follows:
“4.10 Time for lodgment 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.
4.11 Giving the application to the Tribunal
(1) An application for review by the Tribunal must be given to the Tribunal by:
(a) leaving it with an officer of the Tribunal at a registry of the Tribunal, or with a person specified in a direction given by the President of the Tribunal under section 18B of the Administrative Appeals Tribunal Act 1975; or
(b) sending the application by pre‑paid post to a registry of the Tribunal; or
(c) having the application delivered by post, or by hand, to an address specified in a direction given by the President of the Tribunal under section 18B of the Administrative Appeals Tribunal Act 1975; or
(d) faxing the application to a fax number specified in a direction given by the President of the Tribunal under section 18B of the Administrative Appeals Tribunal Act 1975; or
(e) transmitting it to a registry of the Tribunal by other electronic means specified in a direction given by the President of the Tribunal under section 18B of the Administrative Appeals Tribunal Act 1975.
(2) An application made to the Tribunal in accordance with paragraph (1)(a) or (b) is taken to have been received by the Tribunal at the time the Tribunal receives it.
(3) An application made to the Tribunal in accordance with paragraph (1)(c) is taken to have been received by the Tribunal at the time it is received at the relevant address.
(4) An application made to the Tribunal in accordance with paragraph (1)(d) is taken to have been received by the Tribunal at the time it is received at the relevant fax number.
(5) An application made to the Tribunal in accordance with paragraph (1)(e) is taken to have been received by the Tribunal at the time the Tribunal receives it.”
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 finds that the Tribunal did not err in finding that because the application for review was not received by it within the prescribed time, the Tribunal had no jurisdiction to hear the application. Further, the Court finds that the Tribunal did not otherwise have power to extend time for any hearing to occur.
The decision of the Tribunal could not be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The applicants have failed to establish 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 fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 26 February 2021
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