Grewal v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 217
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Grewal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 217
File number: MLG 3121 of 2019 Judgment of: JUDGE LADHAMS Date of judgment: 22 March 2023 Catchwords: MIGRATION – application for extension of time to seek judicial review of Tribunal decision – short delay – no prejudice to respondents – no realistic prospects of success when merits assessed at reasonable impressionistic level – extension of time refused Legislation: Migration Act 1958 (Cth) ss 359, 359C, 360, 363, 363A, 379A, 379C, 379G, 477, 499
Migration Regulations 1994 (Cth) cl 500.212
Cases cited: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146
CUW18 v Minister for Home Affairs [2018] FCCA 1991
DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475; [2020] FCAFC 127
Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40
Imani v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1410
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Singh v Minister for Immigration and Border Protection (2017) 251 FCR 110; [2017] FCAFC 67
SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17; [2012] FCA 1319
SZTDC v Minister Immigration and Border Protection [2014] FCA 1298
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604; [2022] HCA 28
WZAUH v Minister for Immigration [2019] FCCA 2018
Division: Division 2 General Federal Law Number of paragraphs: 54 Date of hearing: 23 February 2023 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Ms C Oppel Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 3121 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: TARANJEET SINGH GREWAL
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
22 March 2023
THE COURT ORDERS THAT:
1.The application for an extension of time is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
The application before the Court is an application for an extension of time to seek judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) on 10 August 2019. The Tribunal affirmed an earlier decision made by a delegate of the Minister refusing to grant the applicant a Student (Temporary) (Class TU) visa (student visa).
While the delay in filing the judicial review application is very short and there is no prejudice to the Minister, I do not consider that it is in the interests of the administration of justice to grant the extension of time. This is because the applicant’s proposed substantive application has no merit. I therefore dismiss the application for an extension of time. My reasons for this conclusion are set out below.
BACKGROUND
The applicant arrived in Australia in May 2014 as the holder of a student visa. He applied for the student visa the subject of this application on 13 September 2017.
A delegate of the Minister made a decision not to grant the applicant a student visa on 10 January 2018.
On 19 January 2018 the applicant lodged an application with the Tribunal seeking review of the delegate’s decision. The applicant indicated in his application form that he had appointed a migration agent as his representative for the proceeding and provided an email address for his migration agent.
On 12 April 2019 the Tribunal wrote to the applicant inviting him to provide additional information pursuant to s 359(2) of the Migration Act 1958 (Cth) (Migration Act). The letter was given to the applicant by sending it by email to his migration agent at the address set out in the application. The invitation given to the applicant explained that the requested information should be received by the Tribunal by 26 April 2019. The invitation also referred to the possibility that the applicant may seek an extension of time to provide the information, with any request for an extension of time needing to be received by the Tribunal by 26 April 2019. The invitation stated that if the Tribunal did not receive the information within the period allowed or extended:
(a)it may make a decision on the review without taking any further action to obtain the information; and
(b)the applicant would lose any entitlement he might otherwise have had to appear before the Tribunal to give evidence and present arguments.
On 1 May 2019 the applicant’s migration agent sent an email to the Tribunal attaching a completed form dated 29 April 2019 in response to the invitation to provide more information. The covering email acknowledged that the information was provided late and provided the following explanation:
I would like to extend my sincere apologies for late response as my client is currently overseas and we were unable to get hold of him due to network issue. He did not have access to internet and phone as he still lives in small village in India. I hope you will consider this.
The Tribunal affirmed the delegate’s decision on 10 August 2019. The applicant was notified of this decision by email sent to his migration agent on 17 August 2019.
TRIBUNAL DECISION
At the time of the Tribunal’s assessment, over 18 months had elapsed since the delegate’s decision. The Tribunal therefore considered it beneficial to invite the applicant to provide updated and further information pursuant to s 359(2) of the Migration Act and did so as set out at [6] above. The Tribunal found that the applicant did not respond to the invitation to provide further information within the prescribed period or request an extension of time prior to the expiration of the prescribed period.
The Tribunal noted that in circumstances where the applicant failed to provide further information within the prescribed period as requested, the effect of ss 359C, 360(3) and 363A of the Migration Act was that the applicant was not entitled to appear at a hearing and the Tribunal had no power to permit him to appear. The Tribunal considered that the applicant had already had a fair opportunity to provide relevant information to the Tribunal and elected not to exercise its discretion under s 363(1)(b) of the Migration Act to adjourn the review. The Tribunal proceeded to make a decision having regard to the information before it, including information previously provided to the Department and the applicant’s submissions received on 1 May 2019.
The Tribunal considered whether the applicant satisfied cl 500.212 in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) and, in so doing, had regard to Ministerial Direction No 69 made under s 499 of the Migration Act.
The Tribunal noted that since the applicant’s arrival in Australia, he had been enrolled in a number of courses, but the only course he completed was a Diploma of Business. The Tribunal considered that the applicant had not progressed in his studies during the time his application was pending before the Tribunal, despite having proposed to undertake further studies at the time of the delegate’s decision. The Tribunal was concerned by the applicant’s failure to remain enrolled in a course of study during his time in Australia on a student visa, his failure to make adequate progress in a period of five years, and his failure to undertake Higher Education Sector courses in that period, which was a breach of the conditions on his previous student visa.
The Tribunal noted that no confirmation of enrolment was supplied by the applicant and it appeared that the applicant may not have been enrolled in a course of study at the time of its decision. The Tribunal had regard to the applicant’s claims that he was suffering from depression and anxiety, and had suffered a back injury in 2015 and 2016. However, no medical evidence was provided by the applicant to corroborate his claims.
The Tribunal found that applicant’s evidence about his career plans lacked clarity, and his economic circumstances in Australia amounted to a significant incentive for him to remain onshore. The Tribunal was not persuaded that the applicant had not formed personal ties in Australia. The Tribunal accepted that the applicant has personal ties to India, but found that these ties were outweighed by his desires and incentives to remain onshore.
The Tribunal considered that the applicant was using the student visa program to maintain Australian residency. The Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student temporarily and found that he did not meet cl 500.212 in Schedule 2 to the Regulations. The Tribunal therefore affirmed the decision under review.
EXTENSION OF TIME APPLICATION
The applicant filed his application for judicial review in the Melbourne Registry of the Court at 6:22pm AEST on 16 September 2019. The application is deemed to have been filed on 17 September 2019.
The applicant requested in writing an extension of time under s 477 of the Migration Act and advanced the following grounds in relation to his application for an extension of time:
1. The date the AAT told me about the decision was 17 August 2019.
2. I was told that the 35 days to go to court starts from 17 August 2019.
3. I did not know that the 35 days to go to court starts from 10 August 2019.
The proposed substantive application contains the following four grounds:
1.The AAT did not follow the law because they said they won’t take further action because my response was a bit late.
2. The AAT did not follow the law because they didn’t give me a hearing.
3. The AAT did not give me a chance to explain my situation.
4. The AAT made the wrong decision saying I am not a genuine student.
The evidence before the Court comprises:
(a)the court book;
(b)an affidavit of the applicant sworn on 16 September 2019, which repeats the grounds of application and annexes a copy of the Tribunal decision;
(c)an affidavit sworn by Jolanta Zofia Kowalewska on 2 February 2023 and filed on behalf of the Minister, deposing that the applicant departed Australia in November 2021 and remains offshore; and
(d)an affidavit sworn by Jolanta Zofia Kowalewska on 6 February 2023 and filed on behalf of the Minister confirming service of court documents on the applicant.
CONSIDERATION
Relevant considerations in an extension of time application
Section 477(2) of the Migration Act allows the Court to make an order extending the 35 day time frame to make an application if there has been an application for an extension of time made in writing and if the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
The terms of s 477(2) of the Migration Act do not on their face require the Court to take into account or ignore any particular factor when determining whether it is in the interests of the administration of justice to make an order extending the time for the applicant to file an application: DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475; [2020] FCAFC 127 at [65]; Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604; [2022] HCA 28 (Katoa) at [12] (Kiefel CJ, Gageler, Keane and Gleeson JJ), [39]-[40] (Gordon, Edelman and Steward JJ). Ordinarily, the Court will have regard to factors such as the length of the delay, the explanation for the delay, any prejudice that the respondents would face and the merits of the proposed substantive application: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]. The merits of the proposed substantive application are often assessed at a reasonably impressionistic level, but this is not necessary in all cases: Katoa at [17]-[19] (Kiefel CJ, Gageler, Keane and Gleeson JJ), [49] (Gordon, Edelman and Steward JJ).
Length of the delay
The Tribunal decision was made on 10 August 2019. The period of 35 days from 10 August 2019 expired on 14 September 2019. However, that was a Saturday and the Court registry was not open. Accordingly, the applicant would have had until the next business day, namely Monday 16 September 2019, to file his application.
The application was lodged electronically on 16 September 2019 at 6:22pm AEST in the Melbourne Registry of the Court. Given that it was filed after 4:30pm, it is deemed to have been filed on 17 September 2019.[1] The applicant has therefore filed his application one day out of time. I accept that this is the shortest of delays.
[1] The amended application was electronically lodged after 4:30pm on 16 September 2019 and is therefore deemed to have been filed on 17 September 2019, pursuant to r 2.05(3) of the Federal Circuit Court Rules 2001 (Cth).
Explanation for the delay
The applicant’s explanation for the delay is based on his lack of knowledge of the relevant time frames. No meaningful detail is provided in the applicant’s application, affidavit or in his oral submissions at the hearing as to who allegedly told him that he had 35 days from the date of the notification, rather than the date of the decision, or when he became aware of the true position.
As Counsel for the Minister identified in her oral submissions, when the Tribunal provided its decision to the applicant, it also gave him a copy of an information sheet which clearly set out that any application to the Court for judicial review must be filed within 35 days of the date of the decision.
It has previously been held that ignorance of relevant timeframes is not an adequate explanation for a delay in commencing proceedings: see, for example, SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17; [2012] FCA 1319 at [38]; WZAUH v Minister for Immigration [2019] FCCA 2018.
The applicant in the present matter has not provided an adequate explanation for the delay in filing his application to the Court. However, I place no weight on this consideration in any way that is adverse to the applicant in circumstances where the delay is so minimal.
Prejudice to the Minister
The Minister does not claim to face any prejudice arising from the delay and I do not find that the Minister faces any prejudice as a result of the delay.
Merits of the proposed substantive application
It will ordinarily not be in the interests of the administration of justice to grant an extension of time where an applicant has no prospects of success in the substantive application: see, for example, SZTDC v Minister Immigration and Border Protection [2014] FCA 1298 at [48]; CUW18 v Minister for Home Affairs [2018] FCCA 1991 at [33]-[34] .
The applicant made lengthy submissions at the hearing, which mainly addressed his immigration history and the hardships he has faced since first arriving in Australia. Many of the matters raised by the applicant are either background matters, or relate only to the merits of the Tribunal decision, and are not set out in this judgment.
The applicant did, however, make some submissions that might be seen as relating to his grounds. He submitted that his migration agent did not tell him that he had to submit the relevant form to the Tribunal in response to the invitation under s 359 of the Migration Act to provide further information until after the due date had passed and told him that there had been a problem. At one point during the hearing the applicant, who appeared via Microsoft Teams, displayed to the Court an email from his migration agent dated 29 April 2019 asking him to complete the relevant form. The applicant submitted that he completed the form straightaway and sent it to his agent on 2 May 2019. He said the late response was the fault of his agent because the agent missed the email from the Tribunal and it was not the applicant’s mistake. The applicant submitted that the Tribunal did not give him an opportunity to explain what had happened and if he had known that he needed to provide additional evidence, he would have provided it.
In the present matter, taking into account the grounds and the applicant’s oral submissions, I do not consider that any of the four grounds raised by the applicant have any realistic prospects of success. I have considered the grounds at a reasonably impressionistic level, but in circumstances where my impression of grounds 1, 2 and 3 turns on the operation of a number of provisions of the Migration Act, I have set out my reasoning in some detail. This is permissible, taking into account the High Court’s judgment in Katoa, and in my view it is appropriate in this case that the reasons provide sufficient detail for the applicant to understand why I have found that his proposed grounds are without merit, particularly in circumstances where he feels that he was treated unfairly as a result of how his matter progressed before the Tribunal.
Grounds 1, 2 and 3
Grounds 1, 2 and 3 all relate to the Tribunal proceeding to make a decision on the applicant’s review application without holding a hearing and without inviting him to provide further information, in circumstances where he was late in providing a response to the invitation to provide further information issued under s 359(2) of the Migration Act. Grounds 1 and 3 appear to assert that the Tribunal erred in failing to give the applicant any further opportunity to give evidence and make submissions and ground 2 asserts that the Tribunal erred by not inviting the applicant to a hearing.
It is convenient to address these grounds with reference to several of the provisions in Part 5 of the Migration Act.
Subsection 359(2) allows the Tribunal to ‘invite, either orally … or in writing, a person to give information.’ The letter sent by the Tribunal on 12 April 2019 is an invitation to give information pursuant to s 359(2) of the Migration Act.
The applicant is deemed to have received the invitation under s 359(2) at the end of 12 April 2019, notwithstanding his submission that he did not actually receive the invitation until 29 April 2019. The reasons for this are:
(a)Pursuant to s 379G(1) of the Migration Act, where an applicant for review of a Part 5‑reviewable decision gives the Tribunal written notice of the name and address of another person authorised to receive documents in connection with the review (authorised recipient), the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant. In the present case, the applicant gave details of an authorised recipient to the Tribunal by providing the name and contact details for his migration agent in his application. The Tribunal was therefore required to send the invitation under s 359(2) to the applicant’s migration agent.
(b)Pursuant to s 379A(5) of the Migration Act, the Tribunal was permitted to give the invitation to the applicant (via his migration agent) by email, as it did in the present case.
(c)Pursuant to s 379C(5) of the Migration Act, the applicant was ‘taken to have received the document at the end of the day on which the document [was] transmitted’, namely at the end of 12 April 2019.
The Tribunal was satisfied that the applicant was properly sent the invitation to provide further information under s 359(2) of the Migration Act: see Tribunal reasons at [6]. For the reasons explained in the preceding paragraphs, the applicant has not persuaded the Court that he has any arguable case that the Tribunal erred in this finding.
Subsection 359C(1) of the Migration Act provides:
If a person:
(a) is invited in writing under section 359 to give information; and
(b) does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the information.
This section makes clear that the Tribunal did not have any obligation to take any further action to allow the applicant a further opportunity to provide information in relation to his application for review in circumstances where he failed to provide information in response to the s 359(2) invitation within the specified timeframe.
The Tribunal’s general obligation to invite an applicant to a hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review is set out in s 360(1) of the Migration Act. Subsection 360(2) of the Migration Act contains exceptions to the general obligation in s 360(1) and one of those exceptions is where s 359C(1) applies to the applicant: s 360(2)(c) of the Migration Act. Subsection 359C(1) applied to the applicant in the present case. Subsection 360(3) provides that if any of the paragraphs in subsection (2) apply, the applicant is not entitled to appear before the Tribunal. It follows that the applicant in the present case was not entitled to appear before the Tribunal at a hearing.
Finally, s 363A of the Migration Act provides that if a provision in Part 5 of the Migration Act states that a person is not entitled to do something, then the Tribunal does not have the power to permit the person to do that thing. The effect of this provision, when read with ss 359A(1) and 360(2)(c) and (3), is that the Tribunal did not have the power to permit the applicant to attend a hearing: see Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40 at [26]-[29]; Singh v Minister for Immigration and Border Protection (2017) 251 FCR 110; [2017] FCAFC 67 at [55].
The Tribunal expressly recognised the effects of ss 359(2), 359C(1), 360(3) and 363A at [7] and [8] of its reasons.
The Tribunal also recognised at [10] of its reasons that it has the power in s 363(1)(b) of the Migration Act to adjourn the review from time to time, and that this power could be used to give the applicant additional time to provide further evidence to support his application. The Tribunal did not exercise that discretion in the present case because it considered that the applicant had already had a fair opportunity to provide relevant information.
Even if the applicant’s grounds were understood as asserting legal unreasonableness in the Tribunal’s decision not to exercise the discretion in s 363(1)(b) to give him more time or a further opportunity to provide information, they would have no realistic prospects of success.
The Tribunal’s discretionary powers are conferred subject to the implied condition that they be exercised reasonably: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [26] (French CJ), [63] (Hayne, Kiefel and Bell JJ), [93]-[95] (Gageler J); Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [124] (Crennan and Bell JJ). The Tribunal in the present case gave an evident and intelligible justification for its decision not to exercise its discretion in s 363(1)(b) of the Migration Act to adjourn the review any further to allow the applicant further time to adduce further evidence, namely, that it was satisfied that the applicant had already received a fair opportunity to provide all relevant information. The applicant did provide information in response to the s 359(2) invitation, albeit late, and the Tribunal had regard to the information that he provided. The applicant has not made any submission to the Court that would reveal a reasonably arguable case that the Tribunal’s decision not to exercise its discretion in s 363(1)(b) was unreasonable.
Grounds 1, 2 and 3 therefore have no realistic prospects of success.
Ground 4
Ground 4 is a simple assertion that the Tribunal made the wrong decision. At face value, the applicant is inviting the Court to engage in merits review and decide for itself whether he meets the genuine temporary entrant criterion. The Court has no power to review the factual merits of the Tribunal decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31]. Disagreement, even an emphatic disagreement, with a Tribunal decision does not of itself give rise to jurisdictional error: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 at [61]; Imani v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1410 at [27].
I otherwise accept the Minister’s submission that the Tribunal reasons demonstrate that it considered all of the material that was before it and weighed the various relevant considerations, including those set out in Ministerial Direction No 69, in finding that the applicant was not a genuine applicant for entry and stay as a student and therefore did not satisfy cl 500.212 in Schedule 2 to the Regulations.
There is no realistic prospect that the applicant will be able to establish jurisdictional error by ground 4.
Conclusion on extension of time application
While the length of the delay in filing the application for judicial review is very short and there is no prejudice to the Minister, the application for an extension of time should be refused because none of the grounds raised by the applicant have any realistic prospects of success. It is not in the interests of the administration of justice to grant an extension of time in relation to an application that has no realistic prospects of success.
COMPLAINTS ABOUT MIGRATION AGENTS
In making his submissions to the Court, the applicant has raised concerns about the conduct of at least two migration agents that he has engaged to assist him with his migration matters in Australia.
It is exceedingly unfortunate that the applicant appears to have lost the opportunity to appear at a Tribunal hearing in the present matter because of the delays in the s 359(2) invitation being forwarded to him by his migration agent. I acknowledge that the migration agent provided an explanation to the Tribunal to explain the delay and I express no view in this judgment about whether or not the migration agent was at fault. I would, however, observe that it would have been preferable for the agent to alert the Tribunal to the difficulties in communicating with the applicant and seek an extension of time to provide information in response to the invitation under s 359(2) before the time for responding to the invitation expired.
The complaints the applicant made to the Court about the conduct of his migration agents are not matters that would give rise to jurisdictional error in the Tribunal decision, and the Court has no jurisdiction to take any action in relation to the complaints. If the applicant wishes to pursue his complaints about migration agents, he has the option of directing his complaints to the Migration Agent Registration Authority.
CONCLUSION
The application for an extension of time to seek judicial review of the Tribunal decision is dismissed.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 22 March 2023
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