Gurung v Minister for Immigration
[2013] FCCA 628
•25 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GURUNG & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 628 |
| Catchwords: PRACTICE AND PROCEDURE – Request for adjournment – letter of request unsigned and apparently sent by a migration agent – claim of illness without supporting medical evidence. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| First Applicant: | MAYA GURUNG |
| Second Applicant: | HARI RANA NAGAR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3041 of 2012 |
| Judgment of: | Judge Driver |
| Hearing date: | 25 June 2013 |
| Delivered at: | Sydney |
| Delivered on: | 25 June 2013 |
REPRESENTATION
No appearance by or on behalf of the Applicants
| Solicitors for the Respondents: | Ms L Weston Minter Ellison |
INTERLOCUTORY ORDERS
Hari Rana Nagar is to be added as the second applicant to the proceedings.
The adjournment application is refused.
The application, as amended, be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicants are to pay the first respondent’s costs and disbursements of an incidental to the application, fixed in the sum of $5,000.
The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicants by ordinary pre-paid post at their nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3041 of 2012
| MAYA GURUNG |
First Applicant
HARI RANA NAGAR
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application seeking judicial review of a decision of the Migration Review Tribunal (Tribunal) made on 20 November 2012. The Tribunal found that it did not have jurisdiction in the matter because the review application was filed out of time. The Tribunal decision notes that the visa applicants, of which there are two, sought review on 16 August 2012 and the Tribunal needed to consider whether the review application was a valid one, given that its preliminary examination suggested that the application should have been filed a week earlier. The Tribunal formed the preliminary view that it did not have jurisdiction because of the time issue.
The Tribunal wrote to the applicants on 19 October 2012, inviting submissions on that issue and received written submissions, dated 26 October 2012. The Tribunal reviewed the relevant law and made a number of findings. The Tribunal found that the decision of the delegate was an MRT-reviewable decision, covered by s.338(2) of the Migration Act 1958 (Cth) (Migration Act) and that the period for seeking review was 21 days, starting when the applicants were validly notified of the decision in accordance with the Migration Act (see s.347(1)(b)(i) and regulation 4.10(1)(a) of the Migration Regulations 1994 (Cth))[1]. The Tribunal was satisfied that notification of the delegate’s decision complied with the requirements of s.66(2) of the Migration Act. The Tribunal found evidence that an email transmission on the Department’s file, including the decision notice, was transmitted by email on 20 July 2012 in accordance with s.494B(5) of the Migration Act.
[1] The reference to 28 days in s.347(1)(b)(i) might confuse a lay person but a competent migration agent would know to check the prescribed period in regulation 4.10(1)(a)
The material before the Tribunal indicated that the applicants gave the Minister written notice under s.494D of the name and address of an authorised recipient and that the decision notice dated 20 July 2012 was transmitted via email on 20 July 2012 to the applicants’ authorised recipients’ last email address provided to the Minister for the purposes of receiving documents. The Tribunal found that the decision notice was emailed on the day it was dated to the correct email address in accordance with ss.66(1), 494B(5) and 494D. Therefore, the applicants were taken to have received the notice at the end of the day on which the notice was transmitted, namely, 20 July 2012.
The applicants’ written submissions claimed that they had been given incorrect advice by the Minister’s Department. They claim that they had been told that they could file their review application up to 16 August 2012. The tenor of those submissions was that the applicants sought some concession or exercise of discretion in their favour. The Tribunal confirmed that the delegate’s decision had been properly notified and at [24] of its reasons[2] the Tribunal said:
In relation to the applicants’ claim of being misinformed by an immigration officer about when the review application must be lodged, whilst unfortunate, the Tribunal has no discretion to accept an application that is properly notified outside the prescribed time limit. There is also no provision for an extension of time in which to lodge an application for review, even in cases where special circumstances may exist.
[2] court book, page 127
That statement is undoubtedly correct. The Tribunal concluded that it had no jurisdiction in the matter.
These proceedings began with a show cause application, filed on 19 December 2012. Only the first applicant (Ms Gurung) was nominated as an applicant in that application. An amended application, nominating both visa applicants, was filed on 10 April 2013. I directed that the second applicant be added to the application. The amended application contains numerous grounds in narrative form. Those grounds traverse issues that might be relevant if the Tribunal had been called upon to exercise some discretion. The grounds, however, have no legal significance in circumstances where the Tribunal had no discretion. The grounds concede that the time for lodging the review application had expired.
The amended application is supported by an affidavit filed on 10 April 2013. In that affidavit, Ms Gurung traverses the history of the matter in relation to the time period for the review application. Again, the assertions in that affidavit only have relevance if the Tribunal had a discretionary power available to it to accept a late application or to have regard to extenuating circumstances, which it did not. The applicants also filed written submissions on 20 February 2013, which traverse the same arguments.
The application is opposed by the Minister.
I have before me as evidence, in addition to Ms Gurung’s affidavit, the court book, filed on 4 March 2013.
There was correspondence between Ms Gurung and the Court and the Minister’s solicitors following the filing of the original application. In that correspondence, Ms Gurung had asserted illness and an inability to attend the first court date directions in the matter. I made orders for the filing of material preparatory to a show cause hearing in the matter today. Those orders were made in chambers with the agreement of the parties.
Before I came on the bench this morning, my associate received an email from a person called Bassem Aslan enclosing a letter purportedly from Ms Gurung, although unsigned, in which it is stated that Ms Gurung had sought assistance from a friend but was still suffering from a medical condition and would be unable to attend the hearing today. No medical evidence was provided, although the letter stated that medical evidence could be supplied upon request. My associate attempted to contact the applicants on the telephone number provided on their original and amended application. That number is 9186 2548. It was apparent that the telephone number was a business number, although the line was unanswered and the recorded message provided was unclear.
I note from page 99 of the court book that the telephone number is the same as that provided by the person who was assisting the applicants, both before the Minister’s Department and the Tribunal. That person was Mr Vijay Kumar Dindayal of National Migration Services. He provided a postal address, which is the same as the postal address provided on the applications before the Court. The court book discloses that Mr Dindayal purported to be a registered migration agent[3]. However, my associate was not able to find any reference to him on the website of the Migration Agents Registration Authority. I further note that the facsimile received this morning was from a facsimile address called “Sydney Confidential”, which is also a facsimile addressed used previously by the migration business. I accept, in the circumstances, that a request for adjournment has been made on behalf of the applicants, apparently by someone associated with the migration business, which has been assisting the applicants since they first applied for a visa.
[3] see for example court book, page 67
However, I am unpersuaded by what is contained in the letter, purportedly from Ms Gurung, that a further adjournment should be provided. Ms Gurung claims that she is seeking assistance to support her proceedings in the Court but it is apparent that she has been receiving assistance throughout. Ms Gurung also asserts that she is unwell but no medical evidence has, to this point, been provided in relation to the current adjournment request. I also see no purpose in granting an adjournment given that the judicial review application is doomed to fail.
I see no error in the Tribunal’s finding that the delegate’s decision was properly notified to the applicants’ authorised recipient, who was Mr Dindayal. He received that notification and drew it to his client’s attention. For some reason unknown he did not lodge a review application within time. The applicants claim that they attended the Minister’s Department on 15 August 2012 where they received incorrect advice. Why that was necessary in circumstances where the applicants were represented by someone claiming to be a registered migration agent who should be taken to know the law and the relevant periods for seeking review, I do not know.
The grounds advanced and the arguments provided to this Court indicate a complete misunderstanding of the legal position before the Tribunal. They appear to assume that the Tribunal could exercise some discretion or indulgence when plainly it could not. I am concerned that those documents have been prepared by or with the assistance of Mr Dindayal or others supporting him in his migration business. It is a concern when arguments are put before the Court which are hopeless in light of clear provisions of the Migration Act which should be known and understood by professionals conducting migration businesses.
The conclusion I have come to is that the application, as amended, fails to disclose any arguable case of jurisdictional error. I will order that the application, as amended, be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).
The application having been dismissed, the Minister seeks an order for costs fixed in the sum of $5,000. That sum is above the scale amount prescribed for a show cause hearing. I accept however, from the submissions of the Minister’s solicitor, that additional costs have been incurred in dealing with the lengthy amended application and the written submissions in support of the original application, as well as in relation to the first and second adjournment requests.
I will order that the applicants are to pay the first respondent’s costs and disbursements of an incidental to the application, fixed in the sum of $5,000.
The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicants by ordinary pre-paid post at their nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 2 July 2013
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