Gurung v Minister for Immigration

[2013] FCCA 585

FEDERAL CIRCUIT COURT OF AUSTRALIA

GURUNG v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 585

Catchwords:
MIGRATION – Migration Review Tribunal.
PRACTICE & PROCEDURE – Show cause hearing pursuant to rule 44(12) of the Federal Circuit CourtRules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation: 

Federal Circuit Court Rules 2001 (Cth) reg.44(12)
Migration Act 1958 (Cth) s.347
Migration Regulations 1994 (Cth) reg.4.1

Cases cited: 

Perera v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 231
VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723

Applicant: PRAKASH GURUNG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 872 of 2013

Judgment of: Judge Emmett

Hearing date: 14 June 2013

Date of Last Submission: 14 June 2013

Delivered at: Sydney

Delivered on: 14 June 2013

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter

Solicitor for the First Respondent: Ms Bernadette Rayment
(Sparke Helmore Solicitors)

(i)

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 872 of 2013

PRAKASH GURUNG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The first respondent seeks a show cause hearing, pursuant to reg.44(12) of the Federal Circuit Court Rules2001 (Cth), on the basis that the application filed by the applicant, on 26 April 2013, has not raised an arguable case for the relief claimed and that the proceeding should therefore be dismissed.

2. The applicant was unrepresented before this Court, although he had the assistance of an interpreter. 

3. I explained to the applicant the nature of the application being made by the respondent this morning and that the issue for the Court was whether or not his application raised an arguable case for the relief claimed. 

4. The grounds of the application were interpreted for the applicant and he was invited to say whatever he wished in support of those grounds. Those grounds are as follows:

   1. The Tribunal erred in law by not correctly applying provisions of Sec 347(1)(b) Migrations Act 1958 read with r4.10 of the Migration Regulations 1994.

   Particulars

   The Tribunal failed to consider that the applicant had posted the review application on 17/2/12 and the fact that it would have received the application on 18^th Dec 2012, which was within the time frame to lodge a review application before the Tribunal. The Tribunal failed to consider the statutory declaration filed by the appellant to the effect that the application was posted on 17/12/12 especially due to the fact that there is no evidence to the contrary.

   2. The Tribunal made jurisdictional error as it denied procedural fairness and thus erred in law

   Particulars

   The Tribunal failed to provide the services of an interpreter and thus failed to properly explain to the appellant the issues relating to the alleged delay in the filing of the review petition. As the issue was not properly explained to the appellant who was self represented he failed to make a proper reply by providing all the evidence which he had in his possession.

5. The applicant confirmed that ground 1 was intended to be a complaint that the Migration Review Tribunal (“MRT”) had failed to consider a statutory declaration filed by her, posted on 17 December 2012, seeking to explain the reasons why the application for review of the delegate’s decision should have been taken to have been received on time. 

6. Section 347(1)(b) of the Migration Act 1958 (Cth) provides that an application for review, by the MRT, must be received within the prescribed period. The prescribed period is provided for in regulation 4.1 of Migration Regulations 1994 (Cth) to the effect that an application for review of a delegate’s decision must be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements.

7. The MRT found that the applicant was notified of the delegate’s decision on 27 November 2012 and the applicant does not suggest otherwise.  The MRT was satisfied that the applicant was notified in accordance with the statutory requirements and found that the prescribed period within which the review application could be made, ended on 18 December 2012. 

8. The review application was received by the MRT on 29 December 2012 by facsimile transmission.  In the circumstances, the MRT determined that it did not have jurisdiction to consider the applicant’s application for judicial review of the delegate’s decision. 

9. The MRT considered to the applicant’s submission that he posted his review application to the MRT on 17 December 2012.  The MRT wrote to the applicant, asking for further information in relation to the filing of the application and made inquiries itself as to whether any evidence had been received by the MRT, such as a Registered Post tracking number, which may have enabled it to ascertain if the review application was received earlier than 27 December 2012.

10. The MRT is not obliged to accept the applicant’s statement that he had sent his review application on 17 December 2012 and that it should have been received on 18 December 2012.  The MRT’s decision record makes clear that the MRT considered the applicant’s explanation, however, ultimately, was not persuaded by it. 

11. In the circumstances, ground 1 has no, or no, reasonable prospects of success. 

12. In ground 2, the applicant asserts that he was denied procedural fairness because the MRT failed to provide him with an interpreter and that he was self represented. 

13. In order to amount to jurisdictional error, the deficiency of interpretation must be of such poor quality that an Applicant is effectively deprived of his right to appear (Perera v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 231-28 at [38] per Kenny J); VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723 Finkelstein J at [27].

14. There is no evidence before this Court to suggest that there was any deficiency of interpretation let alone of interpretation of such poor quality that the applicant was effectively deprived of his right to appear.

15. In any event, there is no obligation on the MRT to provide an interpreter for the applicant. 

16. Further in answer to the question, “Does the visa applicant need an interpreter when communicating with the Tribunal?” The box ticked is “No”. 

17. In the circumstances, ground 2 has no, or no, reasonable prospects of success.

18. In the circumstances, I am not satisfied that the application raises an arguable case for the relief claimed.

19. Accordingly, the proceeding for this Court, commenced by way of application filed 26 April 2013, should be dismissed with costs pursuant to reg.44(12) of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  26 June 2013