KARAMAT v Minister for Immigration

[2016] FCCA 2411

FEDERAL CIRCUIT COURT OF AUSTRALIA

KARAMAT v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2411

Catchwords:
MIGRATION – Application for judicial review – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.48, 338(2), 347(1)(b)
Migration Regulations 1994, reg.4.10

Applicant: MATEEN KARAMAT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2154 of 2014

Judgment of: Judge Riethmuller

Hearing date: 31 August 2016

Date of Last Submission: 31 August 2016

Delivered at: Melbourne

Delivered on: 31 August 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the First Respondent: DLA Piper

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal.

2. The application filed 24 October 2016 be dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the sum of $4531.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2154 of 2014

MATEEN KARAMAT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore & revised)

1. This is an application for judicial review of a decision of the Migration Review Tribunal, as it then was, declining to exercise jurisdiction to review a decision by a delegate of the Minister with respect to a Partner (Residence) (Class BS) visa. 

2. The delegate made a decision in this case that was sent to the applicant on 18 July 2014. 

3. He was taken to have had notice of that decision by 29 July 2014, and therefore the last day for lodging an application to the Tribunal was 21 days later on 19 August 2016.  The application to the Tribunal was not received until 26 August 2014. 

4. The applicant explains that the reason he did not lodge his application for review within the time limit was that he was recommended a course of action of applying for another visa type. However, this visa application was unsuccessful because it was an application made onshore rather that offshore, contrary to relevant conditions for that visa. 

5. In this regard, he complains that he received incorrect advice and that the Department had not forwarded to him a notice with respect to the importance of applying offshore. The applicant decided to pursue appealing the delegate’s decision on the original visa application only when he became aware of the requirements set out in s. 48 of the Migration Act 1958.

6. There is some dispute as to whether or not he received some information in this regard.  A copy of a brochure concerning these issues appears at page 107 of the Court Book and appears to have been sent to him. 

7. In this case, however, it is open to the Court to simply proceed on the basis of the claims by the applicant: That is that he received inappropriate advice; as a result of this advice he missed the limitation period for lodging a review application. 

8. Under the legislation, the Tribunal does not have a discretion to grant an extension of the time limit for the period to apply for review of the Tribunal. Counsel went through the relevant provisions of sections 338(2), 347(1)(b), and regulation 4.10, to confirm that the time limit was, in fact, 21 days and that there was not a power to extend the time available to lodge an application. The relevant provisions provide:

9. Section 338(2) provides:

   (2) A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if:

   (a)  the visa could be granted while the non-citizen is in the migration zone; and

   (b)  the non-citizen made the application for the visa while in the migration zone; and

   (c)  the decision was not made when the non-citizen:

   (i)  was in immigration clearance; or

   (ii)  had been refused immigration clearance and had not subsequently been immigration cleared; and

   (d)  where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:

   (i)  the non-citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or

   (ii)  an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.

10. Section 347(1)(b) provides:

    Application for review of Part 5-reviewable decisions

    (1)  An application for review of a Part 5-reviewable decision must:

    …

    (b) be given to the Tribunal within the prescribed period, being a period ending not later than:

    (i)  if the Part 5-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)-- 28 days after the notification of the decision; or

    (ii)  if the Part 5-reviewable decision is covered by subsection 338(5), (6), (7) or (8)-- 70 days after the notification of the decision; or

    (iii)  if the Part 5-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; and

11. Regulation 4.10 provides:

    Time for lodgment of applications with Tribunal (Act, s 347)

    (1)  For paragraph 347(1)(b) of the Act, the period in which an application for review of a Part 5-reviewable decision must be given to the Tribunal:

    (a)  if the Part 5-reviewable decision is mentioned in subsection 338(2) or (7A) 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; or

    (b)  if the Part 5-reviewable decision is mentioned in subsection 338(3) or (3A) of the Act--starts when the applicant receives notice of the decision and ends at the end of 7 working days after the day on which the notice is received; or

    (c)  if the Part 5-reviewable decision is mentioned in subsection 338(5), (6), (7) or (8) of the Act--starts when the applicant receives notice of the decision and ends at the end of 70 days after the day on which the notice is received; or

    (d)  if the Part 5-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.

    (2)  However, the period in which an application by a detainee for review of a Part 5-reviewable decision must be given to the Tribunal:

    (a)  in the case of an application for review of a decision of a kind mentioned in subsection 338(4) of the Act--starts when the detainee receives notice of the decision and ends at the end of 2 working days after the day on which the notice is received; or

    (aa)  in the case of an application for review of a decision to which paragraph 4.02(4)(f) applies--starts when the detainee receives notice of the decision to refuse to grant the visa mentioned in subparagraph 4.02(4)(f)(ii) and ends at the end of 2 working days after the day on which the notice is received; or

    (b)  in any other case--starts when the detainee receives notice of the decision and ends at the end of 7 working days after the day on which the notice is received. 

    (2A)  For subparagraph 347(1)(b)(iii) of the Act, the prescribed number of days in respect of a Part 5-reviewable decision prescribed under subsection 338(9) of the Act is 28 days.

    Note:          For subparagraph 347(1)(b)(iii) of the Act, there must be a prescribed number of days in respect of kinds of decisions covered by subsection 338(9) of the Act. The prescribed period for applications for review must end not later than the prescribed number of days after notification of the decision.

12. As there is no power to extend the time under the Act, it was not open to the Tribunal to grant an extension of time to hear his application to review the decision of the delegate.  The Tribunal was therefore correct to refuse to exercise jurisdiction. 

13. It is not open to this court to review the decision of a delegate, as that is a decision of a primary decision-maker, and jurisdiction in this respect lies only in the original jurisdiction of the High Court of Australia. 

14. In these circumstances, even if the delay was as a result of wrong advice from the Department, or a Departmental Officer (and I make the important point that I have not made any formal findings in this regard). The Department could not be required to act contrary to the regulations.

15. The applicant also complains that he had not received mail or emails on a previous occasion.  However, it is clear that the letter that was sent to him was sent to the address set out in his application form at the relevant address he gave for receiving correspondence. His answer to question 22 of the application (at Court Book page 2) sets out [Number] [Street] Noble Park VIC 3174. 

16. The only possible complaint could be that in the letter sent to the applicant on 18 July 2014 the word “Noble Park” had the letters “e” and “l’ transposed. The letter was sent to [Number] [Street] Nobel Park VIC 3174 (Court Book page 86).  The rest of the address, including the postcode, was correct.  This typographical error is, in my view, so minor that it cannot be said that the letter was sent to the wrong address. There was no reasonable prospect of the postal service or, indeed, anyone else, being confused by the misspelling of “Noble” in Noble Park, coupled with the correct postcode. 

17. The other matters that the applicant raises relate to the merits of his application for a spouse visa.  It is not open to this court to conduct a merits review of the decision. 

18. In the circumstances of this case, I therefore refuse the application for judicial review and dismiss the application presently before the court. 

I certify that the preceding fifteen (18) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 21 September 2016