Hadi v Minister for Immigration - [2019] FCCA 3178

FEDERAL CIRCUIT COURT OF AUSTRALIA

HADI v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 3178

Catchwords:
MIGRATION – Visa – student visa – application for merits review by Tribunal made out of time – Tribunal found no jurisdiction to entertain application – no error demonstrated – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.347(1)(b), 476

Migration Regulations 1994 (Cth), regs.4.10

Cases cited:

Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324

Beni v Minister for Immigration and Border Protection [2018] FCAFC 228

Applicant:

MUHAMMAD TAHA HUSSAIN HADI

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

ADG 352 of 2017

Judgment of:

Judge Heffernan

Hearing date:

14 October 2019

Date of Last Submission:

14 October 2019

Delivered at:

Adelaide

Delivered on:

14 October 2019

REPRESENTATION

The Applicant

In person

Solicitors for the Respondents:

Ms N Rostron for the Australian Government Solicitors

ORDERS

The name of the first respondent be amended to read, ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
That the application filed 30 August 2017 be dismissed.
The applicant do forthwith pay the first respondent’s costs fixed in the sum of SIX THOUSAND DOLLARS ($6,000).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 352 of 2017

MUHAMMAD TAHA HUSSAIN HADI

Applicant

And

MINISTER FOR IMMIGRATION CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS,

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Reasons settled from transcript)

This is an application for judicial review pursuant to s.476 of the Migration Act 1958 (Cth) against a decision of the Administrative Appeals Tribunal (‘the Tribunal’). That decision was one in which the Tribunal found that it did not have the requisite jurisdiction in order to entertain the applicant’s application for a merits review. The applicant seeks to challenge that decision.
The applicant appeared before me today unrepresented and I took some time to explain the nature of judicial review to him. He relies on three grounds which are essentially a single ground with some particularisation as follows:
“1.I believe the decision made by Tribunal did not fairly take into consideration of my circumstances.
2.Due to financial difficulties which were explained in detail to the AAT, I was unable to file my review application with the Administrative Appeals Tribunal within the 21 day period and was late by 2 days.
3.My application for subclass 485 Temporary Graduate visa was refused by Immigration on the basis that my specified English test results were submitted after my Application was already filed. I also explained the Tribunal that I was not aware of this rule and I had to file my application for subclass 485 visa as my student visa was about to expire as I had to travel back to Pakistan due to demise of my mother, and by the time I came back to Australia, I just had a few days validity on my student visa and that’s why I couldn’t sit for an specified English test before the visa application.”
(Re-produced verbatim)
The applicant relies on the materials in the Court Book, and his affidavit which was filed at the time of his application. That affidavit essentially repeats the grounds of review and attaches a copy of the relevant decision but otherwise adds nothing to the substance of the application.
The background circumstances of this matter are not in any significant dispute, and for that reason I shall summarise the chronology that has been helpfully provided by the first respondent in its written outline of submissions.
The applicant was born in 1993 and is a citizen of Pakistan. He arrived in Australia in June 2013 and at that time he held a student visa. He applied for a Temporary Graduate (Class VC) (Subclass 485) visa (‘the visa’) in March 2017. That visa application was refused by a delegate of the Minister on 1 June 2017. The delegate based their decision on the fact that the applicant had not had an English test as required by the criteria in the Migration Regulations 1994 (Cth) (‘the Regulations’).
Notification of that decision was given to the applicant by a letter dated 1 June 2017. That was emailed to the applicant at an address he had provided on that date. He was advised in that letter that it was open to him to seek a merits review before the Administrative Appeals Tribunal. He was told in the letter that he had 21 calendar days after the date of notification in which to make the application.
The applicant ultimately lodged an application on 26 June to the Administrative Appeals Tribunal. He was four days out of time. As a result, the Tribunal sent a letter to him asking him to comment on whether or not he believed he had made a valid application for review. That letter was also sent by email on 30 June 2017.
The letter put the applicant on notice that the Tribunal had formed a preliminary view that it did not have jurisdiction to entertain his application for a merits review because of the fact that he had not complied with the 21 day time limit prescribed by the Act and the Regulations.
The applicant responded to that letter from the Tribunal. The applicant acknowledges that he received the email notifying him of the decision on 1 June 2017 but states that he did not read it until 5 June 2017. He also acknowledged that he knew about the prescribed period of 21 days, but he was in financial difficulties at that time and, as a result, could not afford the $1,650 application fee. He was able to remedy that by obtaining a credit card on 25 June 2017 and he made sure to lodge his application on the next day.
The Tribunal considered that explanation and on 31 July told him that it had concluded that it did not have jurisdiction in which to entertain his application. The Tribunal provided him with a copy of its decision record. The Application to the Federal Circuit Court was made within time on 30 August 2017.
The applicant made brief oral submissions before me. The effect of those submissions was to reiterate the matters that he had referred to in his grounds of application, namely that he believed the decision was unreasonable and that it did not take into account the explanation that he had given. He says that he tried to explain to the Tribunal that he had financial hardship and also that he had recently invested a significant amount of money into a business that he was starting up, and at the relevant time did not have cash available to him in order to pay for the application.
His view was that the Tribunal did not take that in to account. He reminded me that his mother had, sadly, passed away and that he had been required to return to Pakistan for a period of some months and that he was not in Australia in the immediate lead up to his student visa expiring and for that reason had not been able to take the English test.
He points out that he ultimately did take a relevant English test and that he achieved a very good score and that had it not been for the intervening circumstances, he would have taken the test and the delegate’s decision would have been different. I note at this point that this Court is not concerned with the decision of the delegate, but rather the decision of, and conduct by, the Tribunal.
The Minister submits that the Tribunal was correct in finding that it did not have jurisdiction, and whilst the matter was not specifically raised by the applicant, that it was correct in finding that it did not have any power to extend time.
The circumstances that have been detailed to the Court by the applicant are very unfortunate, from his perspective. Quite obviously he would not have been able to predict the passing of his mother, and the fact that he would have to return to Pakistan for a period of time in order to be with his family.
As I have pointed out to the applicant, unfortunate as those circumstances are, it is not the place of this Court to decide on the merits of his application. In any event, they were the circumstances that caused him to be in a position where he could not satisfy the criteria for the visa for which he had applied, namely he had not taken the relevant English test. As I have already noted, it is not for this Court to review the decision of the primary decision-maker.
The Tribunal correctly observed that pursuant to s.347(1)(b) of the Act, and reg.4.10 of the Migration Regulations 1994, an application for review of the delegate’s decision in this matter had to be made 21 days after the applicant was notified of the decision, in accordance with the statutory requirements. From the applicant’s perspective, it is quite easy to see why he would regard that as simply a timeframe non-compliance with which could be either excused, or in some way extended to enable the Tribunal to consider his application.
The difficulty with that position is that the question is one of jurisdiction. It has previously been held[1] with respect to a similar section of the Act, that an application made outside the timeframe stipulated in the Act, is not a valid application, and therefore not one in which the Tribunal had jurisdiction to conduct a merits review. That decision noted that the Act clearly stipulated timeframes for the making of an application and that compliance with these was an essential preliminary to the exercise of the Tribunal’s function. That is the case with this matter, when one considers the terms of both s.347 of the Act and reg.4.10 of the Regulations.
[1] Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324.
Similar issues were considered in the case of Beni v Minister for Immigration and Border Protection,[2] where the Court, at paragraph 28, noted as follows:
“It is doubtful whether merits review is itself a fundamental right. It is something which is made available subject to the time limitations specified in the legislation.”
The Court went on to observe that the legislation being considered was so clear in relation to specifying express time limits that there was really no scope to read down that requirement. Similarly, there is no discretion conferred by the Act to extend the time within which to seek a review of the delegate’s decision.[3]
[2] [2018] FCAFC 228.
[3] Ibid.
That is a most unfortunate matter from the perspective of the applicant, but, regrettably for him, I can make no other finding on the facts of this matter except that the Tribunal did not have jurisdiction to entertain his application because it was out of time. The question as to how long it was out of time, or what explanation the applicant had for the fact that it was out of time, are not matters which can alter that conclusion.
For these reasons, I have no alternative but to dismiss the applicant’s application.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate:

Date: 7 November 2019