Kankaew v Minister for Immigration & Anor
[2014] FCCA 2335
•8 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KANKAEW v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2335 |
| Catchwords: MIGRATION – Application seeking review of Migration Review Tribunal decision – Applicant applied to Migration Review Tribunal for review of delegate’s decision to refuse to grant applicant a Student visa out of time – Relevant principles – No discretion on the part of the Tribunal to extend time – No reviewable error – Application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 347(1)(b), 494C |
| Gurung & Anor v Minister for Immigration & Anor [2013] FCCA 628 SZFDE & Ors v Minister for Immigration and Citizenship & Anor (2007) 232 CLR 189 |
| Applicant: | RUNGTHIWA KANKAEW |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1767 of 2013 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 8 October 2014 |
| Delivered at: | Sydney |
| Delivered on: | 8 October 2014 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with a Thai interpreter |
| Solicitor for the First Respondent: | Mr L. D'Avigdor of Clayton Utz |
| The Second Respondent: | The Second Respondent filed a submitting notice |
ORDERS
The name of the First Respondent be amended to “Minister for Immigration and Border Protection”.
The application filed on 30 July 2014 and amended on 1 April 2014 be dismissed.
The Applicant pay the First Respondent’s cost and disbursement of and incidental to the application, fixed in the sum of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1767 of 2013
| RUNGTHIWA KANKAEW |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed in the Federal Circuit Court on 30 July 2013 under the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth) (the “Migration Act”) seeking review of a decision of the Migration Review Tribunal (the “Tribunal”) which considered the decision of a delegate of the Minister for Immigration & Border Protection (the “Minister”), the first respondent in these proceedings, dated 9 May 2013 to refuse to grant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act. The Tribunal’s Decision Record, dated 12 July 2013 in case number 1307845, affirmed that it did not have jurisdiction in the matter.
The solicitors for the first respondent the Minister were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided is identified as the Court Book (“CB”) and has been marked Exhibit “A”.
The applicant was granted leave to file and serve an amended application and any evidence she wished to rely upon on or before 1 April 2014. The applicant was also granted leave to file and serve a short written outline of submissions and list of authorities fourteen days before the final hearing. The applicant filed an amended application on 1 April 2014 as well as the Affidavit of Runghthiwa Kankaew affirmed on 1 April 2014 containing five annexures (the “Kankaew Affidavit”).
From what can be discerned from the annexures to the Kankaew Affidavit is that Annexure “1” to “4” appear to be photographs of the applicant’s email account showing email or email(s) received from and sent to Shadesh Barua, the applicant’s former migration agent Annexure “5” appears to be a photograph of the applicant’s mobile phone call history. . The annexures are described as followed:
a)Annexure “1” – email headed “Visa”, received 9 May 2013 at 1.40pm. Parts of this email are in Thai and have not been translated;
b)Annexure “2” – email from Shadesh Barua titled “Re: Fw: Visa refused ((Hannah)), received on 22 May 2013 at 11.34pm. The contents of that email are “Hi. Thanks for your email. Your case will be fine.” The email has been signed by the applicant’s former migration agent;
c)Annexure “3” – photograph of the applicant’s email account, with one email highlighted, being, presumably, an email in reply to the email noted above in Annexure “2”;
d)Annexure “4” – appears to be a photograph of the applicant’s “Sent” email account folder, again referencing the email in reply to the email noted above in Annexure “2”; and
e)Annexure “5” – photograph of the applicant’s mobile phone call history. The photograph shows two missed calls from “0286685499” on 24 May 2013 at 9.45am and 29 May 2013 at 9.36am. The contact is identified as “Loyers” (presumably “Lawyers”).
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference (“CB”) for that material.
On 11 March 2013, the applicant, a citizen of Thailand, applied for a Student visa (CB 1 - 8).
On 9 May 2013, a delegate of the Minister refused to grant the visa. At 1:18pm on the same date, the decision was emailed by a delegate of the Minister to the applicant's then authorised representative, Niphon Samsaen (CB 9 - 19).
On 4 June 2013 the applicant applied to the Tribunal for review of the delegate’s decision (CB 21- 32). On 24 June 2013 the Tribunal wrote to the applicant's then authorised representative, Barua Shadesh, inviting the applicant to comment on the validity of her application for review (CB 37 - 28). On 4 July 2013, the applicant's current representative replied to the invitation to comment (CB 41 - 42).
On 12 July 2013, the Tribunal found that it had no jurisdiction to review the decision (CB 48).
Tribunal’s Decision
The Tribunal found that pursuant to s.347(1)(b) of the Migration Act and rule 4.10 of the Migration Regulations 1994 (Cth) (the “Migration Regulations”), an application for review of the primary decision had to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements (CB 48 at [3]).
The material before the Tribunal indicated that the applicant was notified of the primary decision by letter dated 9 May 2013, dispatched by email on the same date to the email address of the applicant's former representative (CB 48 at [4]).
Accordingly, the Tribunal found the following at CB 48:
a)The primary (delegate’s) decision was sent to the applicant by email on 9 May 2013;
b)The Tribunal found that in accordance with s.494C of the Migration Act, that the applicant was taken to have been notified of the primary decision on 9 May 2013;
c)The prescribed period within which the applicant's application for review could be lodged ended on 30 May 2013;
d)The applicant's application for review was not received by the Tribunal until 4 June 2013 and was therefore not made in accordance with the Migration Act; and
e)It did not have jurisdiction in the matter.
In reaching this finding, the Tribunal considered the submissions of the applicant's current representative contained in the response letter. It was submitted that the applicant should not be penalised for her former and current representative's mistake in lodging the Tribunal application outside the prescribed time limit (CB 48 at [6]). The Tribunal was not satisfied that this submission provided a basis for finding that the application for review was lodged within the relevant time limit.
Current Proceedings
The applicant filed an Amended Application on 1 April 2014. The orders sought in the Amended Application are as follows:
1. An order that the decision of the tribunal or Minister be quashed.
2. A writ of mandamus directed to the tribunal or Minister, requiring them to determine the applicant’s application according to law.
The grounds of the amended application are similar to the grounds pleaded in the original application, however, appear to have been prepared in the form of submissions, effectively elaborating on the original grounds. Accordingly, the Court will treat them as such. They state:
1.My previous agent notified that I had 28 days to apply for MRT from 9 May 2013 onwards because my student visa was refused on 9 May 2013
2. I went to see a lawyer 7 days later, both of the agent and the lawyer kept telling that I had 28 days to lodge the MRT without going through my student visa refusal letter issued by DIAC from 9 May 2013, I sent all document about my problem and I got the answer frome(sic) lawyer on 22 May 2013 that (my case will be fine) which I expected that he must have read all of the documents clearly,
3. My Lawyer lodge the MRT application on Jun(sic) 2013 which I was already out of prescribedtime(sic) limit and MRT refused to accept my application as valid application on 12 Jul(sic) 2013 because MRT has no jurisdiction.
4. I cam(sic) to Australia to further mu(sic) studies to improve my skills for a better future. If I can not complete my studies in Australia, my bright future will be a risk and my life will be ruined.
5. As my case was devastated by them I should not be punished by their error that I didn’t make. And the MRT did notconsider(sic) my application with natural fair judgmen(sic) and iam(sic) deprived of fair justice from MRT. I earnestly request the Federal Magistrate court to order MRT to reconsider my application with natural fairness as a valid aaplication(sic) and also sent back to MRT for fair consideration so I can further my study in Australia.
Applicant’s Submissions
The applicant did not file any written submissions, however, she did file the Kankaew Affidavit. The affidavit annexes five separate photographs or screenshots, presumable from the applicant’s mobile phone. There is no explanation as to why the applicant has submitted this evidence, with her affidavit stating “Please refer to the attached documents.”
At the hearing the applicant was assisted by a Thai interpreter. The Court enquired as to the intention of the applicant in filing the Kankaew Affidavit, however, the applicant failed to properly identify the purpose of her filing the Kankaew Affidavit. The applicant was then asked if she had any oral submissions to make in support of hear application. She stated that it was not her fault that her Student visa application was lodged late and that the Court should send her matter back to the Tribunal. The Court enquired as to whether the applicant had been represented, at any stage, by a lawyer. The applicant stated that she had been represented, preceding the current application, by two difference migration agents.
The applicant stated that what had happened with her application was not her fault at all, but that of her previous migration agent and authorised representative, whom she had trusted to deal with the documents on her behalf. The applicant stated that she was not capable of reading and collecting all the appropriate documents, which is why she gave responsibility in respect of her Student visa application to her previous migration agent. She claimed that the representative sent her an email stating “Hi. Thanks for your email. Your case will be fine” (see Annexure “2” of the applicant’s affidavit). The applicant stated that she believed that this meant that the representative had read her documents thoroughly.
The applicant was asked if she had read the Minister’s written submissions and if she had any comments to make. She stated that she had no comments to make about the Minister’s submissions, but asked the Court to consider sending her matter back to the Tribunal.
The Court stated that if the applicant believed that her migration agent did not act in her best interests, then she could contact the Office of the Migration Agents Registration Authority to make a complaint.
Minister’s Submissions
The Minister submits that, properly distilled, the applicant's grounds allege but a single complaint, namely, that the Tribunal fell into jurisdictional error by not accepting the applicant's explanation for why her application for review to the Tribunal was filed outside the prescribed time limit.
It is submitted that no legal error is disclosed in the Tribunal's finding that it did not have jurisdiction to review the matter. The alleged negligent conduct displayed by the applicant's current representative in filing the Tribunal application outside the prescribed time limit does not give rise to jurisdictional error on the part of the Tribunal: SZFDE & Ors v Minister for Immigration and Citizenship & Anor (2007) 232 CLR 189 at [53]. The current circumstances before the Court, whilst unfortunate, do not meet the strict threshold as noted by the High Court in SZFDE (supra) in respect of pressing a claim of fraud on the Tribunal. Accordingly, as the Tribunal had no discretion to accept late applications, its ultimate decision was inevitable: Gurung & Anor v Minister for Immigration & Anor [2013] FCCA 628.
For completeness, the Minister notes that the applicant is not disputing the Tribunal's finding that the applicant was notified of the primary decision in accordance with the statutory requirements as outlined at [12] above. Nor, the Minister submits, is any error disclosed in this finding.
At the hearing, the Minister’s solicitor, Mr D’Avigdor, stated he did not wish to add to his written submissions and was content to rely solely on those.
Consideration
I refer briefly to the Decision Record of the Minister’s delegate dated 9 May 2013 (CB 11-15) in order to assist with providing context in respect of the current proceedings. The Decision Record sets out why the applicant’s Student (Temporary) (Class TU) visa was refused. Under the subheading “Assessment” it states:
RUNGTHIWA KANKAEW
You are enrolled in, or have been offered a place in, a principal course of study that had been specified by Gazette Notice as a type of course for a subclass 572 visa. Accordingly, you have been primarily assessed against the criteria for the grant of a subclass 572 visa.
You did not satisfy Regulation 572.223 for the following reasons:
Your Student visa subclass TU572 application was lodged on 11/03/2013.
Based on the country of issue of your passport and the course of study you proposed to undertake, the assessment level applicable to your application is Assessment Level (A/L) 2.
On 12/03/2013 an email was sent requesting you to provide evidence of funds that are sufficient to meet expenses totalling of $25,106.03 to cover your total course fees, living costs and travel costs for the first 12 months.
On 09/04/2013 an Email was received with a letter from Ms. Patcharee Tippajorn, who is a holder of an Australian student visa. Ms. Patcharee Tippajorn declared that she would like to provide financial support to you with the amount of $200 Australian Dollars.
On 24/04/2013 an Email was sent to your authorised migration agent requesting a clarification about the amount of the funds provided by your financial supporter and an explanation on how you would access the funds from the supporter’s bank account. A period of 7 days was allocated for evidence to be submitted.
To date you have been unable to provide evidence that you will have access to funds demonstrated or declared in accordance with the Schedule 5A requirements and therefore do no satisfy clause 572.223(2) for the grant of the Student visa.
The criteria in the subclass 572 visa regulations that you did not satisfy are set out at the end of this decision record.
You have also been considered against the other subclasses within Student (Temporary) (Class TU): subclasses 570, 571, 573, 574, 575, 576 and 580.
You did not satisfy the primary criteria for any of these subclasses because you:
- were not enrolled in, or had not been offered a place in, a principal course of study that had been specified by Gazette Notice as a type of course for any of these subclasses (Regulation 570.232, 571.231, 574.231 and 575.231); and
- did not have the support of the AusAID Minister or the Defence Minister for the grant of the visa (Regulation 576.229).
You did not satisfy the secondary criteria for the grant of any subclass of student visa within Student (Temporary) (Class TU) because you are not a member of the family unit of a person who:
- is the holder of a subclass of student visa within Student (Temporary) (Class TU); or
-satisfies, or has satisfied, the primary criteria for the grant of a subclass of student visa with Student (Temporary)(Class TU) (Regulation 570.322, 571.322, 573.322, 574.322 and 575.322); and
had the support of the AusAID Minister or the Defence Minister for the grant of the visa (Regulation 576.322)
As your application was not made on form 157G (Application for a Student Guardian visa), it was not a valid application for a grant of subclass 580 Student Guardian visa (Item 1222(1)(ca) of the Migration Regulations).
(CB 11-12)
It is not the role of this Court to carry out a review of the delegate’s decision, however it can be seen that even if the Tribunal had discretion to extend the time limit in which an application for review could be filed, it would not be apparent how the visa applicant could have successfully advanced argument suggesting that the delegate’s decision contained jurisdictional error in any case.
I agree with the Minister’s submission that the applicant’s grounds are understood to allege a complaint that the Tribunal fell into jurisdictional error by not accepting the applicant’s explanation for why her application for review was filed outside the prescribed time limit. At [2]-[3] of the Decision Record, the Tribunal found:
2. The review application was lodged with the Tribunal on 4 June 2013. For the following reasons, the Tribunal has found that it has no jurisdiction to reviews the decision as the application was not made in accordance with the relevant legislation.
3. Pursuant to s.347(1)(b) of the Act and r.4.10 of the Migration Regulations 1994 an application for review of this decision had to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements.
(CB 48)
Section 347(1)(b) of the Migration Act states:
(1) An application for review of an MRT-reviewable decision must:
(b) be given to the Tribunal within the prescribed period, being a period ending not later than:
…
(iii) if the MRT-reviewable decision is covered by subsection 338(9)--the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision…
Regulation 4.10 of the Migrations Regulations states:
(1) For paragraph 347(1)(b) of the Act, the period in which an application for review of an MRT-reviewable decision must be given to the Tribunal:
…
(d) if the MRT-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.
It should be noted that this time frame was clearly communicated to the applicant’s migration agent in a letter titled “Notification of refusal of application for a Student TU (class TU) visa”, dated 9 May 2013. In the body of that letter it states:
… An application for review of this decision must be given to the MRT within 21 calendar days after the day on which you are taken to have received this letter.
(CB 17)
The argument of the applicant is that it was her representative’s fault that her application for review was filed late. Similar submissions were made to the Tribunal and are noted at [6] of the Decision Record where the Tribunal stated:
6. The Tribunal received submissions on 4 July 2013, indicating that the applicant’s current representative had overlooked the fact that the Department’s decision and notification letter were dispatched by email, and thus erroneously assumed that the relevant time limit in the applicant’s case was 21 Calendar days plus 7 working days from the date of notification. The representative asked that the applicant not be penalised because of mistakes made by him (and the applicant’s previous agent).
(CB 48)
I agree with the submissions made by the Minister in that the alleged negligent conduct displayed by the applicant’s representative does not give rise to jurisdictional error on the part of the Tribunal: SZFDE (supra) at [53], where the High Court stated:
53. … In the Full Court French J [Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 at 399] correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made...
(footnotes omitted)
The decision of Gurung (supra) is a judgment of Judge Driver that contained a similar factual matrix to the current proceedings before the Court. The applicants in that matter attempted to lodge an application for review of a decision of a delegate of the Minister with the Tribunal, but this application was filed outside the prescribed time limit of 21 days: Gurung (supra) at [2]. In that matter, the applicant had an authorised recipient to which the decision of the delegate was forwarded to. The applicants claimed they had been given incorrect advice by the Department and claimed that they were told that they could file their review application after the expiry of the 21 day period. The applicants sought a concession or an exercise of discretion in their favour. Judge Driver found at [14] of Gurung (supra):
14. 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…
His Honour continued at [15] in Gurung (supra):
15. 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 agree with his Honour Judge Driver’s reasoning that the Tribunal did not have the power to exercise discretion in relation to the late lodgement of the review application.
I now turn to the evidence filed by the applicant. As noted earlier, the purpose or intention of this evidence was not stated, nor established, by the applicant. Presumably, this is evidence of the applicant’s submission that she had given the responsibility of collating and lodging the documents, on her behalf, to the migration agent. Again, presumably, the applicant was trying to establish that it was not her fault that the review application was lodged late, but, as noted by the Tribunal at [6] of its Decision Record, was the mistake of the previous migration agent. However, as the evidence has not been identified, the Court can not presume what the applicant’s intention may have been in filing her affidavit.
I note that it is an unfortunate series of events that have led to the applicant being in the position she is today. However, on a fair reading of the Court Book, Decision Record and the applicant’s evidence there is no jurisdictional error apparent in the Tribunal’s decision. As the application for review was not received by the Tribunal until 4 June 2013, five days outside the prescribed 21 day time limit, the application for review was not made in accordance with the relevant legislation and the Tribunal did not have jurisdiction in the matter. Accordingly, the application before this Court should be dismissed with costs awarded to the Minister.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 8 October 2014
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