KAUR v Minister for Immigration
[2014] FCCA 2098
•16 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2098 |
| Catchwords: MIGRATION – Application for judicial review – application filed out of time – extension of time refused – application for judicial review not particularised – application dismissed. |
| Legislation: Migration Act 1958 (Cth) |
| SZFDZ v Minister for Immigration [2006] FCA 974 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 |
| First Applicant: | SUKHWINDER KAUR |
| Second Applicant: | KARNBIR SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 219 of 2014 |
| Judgment of: | Judge McGuire |
| Hearing date: | 9 September 2014 |
| Date of Last Submission: | 9 September 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 16 October 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Unrepresented |
| Counsel for the First Respondents: | Mr Wood |
| Solicitors for the First Respondents: | Clayton Utz |
ORDERS
The application filed 10 February 2014 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 219 of 2014
| SUKHWINDER KAUR |
First Applicant
KARNBIR SINGH
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicants apply for judicial review of the decision of the Migration Review Tribunal (“the Tribunal”) to affirm a decision of the Minister’s delegate to grant the applicants Student (Temporary) (Class TU) visas (student visas).
The application before me is one filed 7 May 2014. That document appears to seek judicial review of a decision by Christina Santos made 28 January 2014. It is clear that the applicants are here referring to a refusal by the Minister to intervene following the decision of the tribunal.
The application filed 7 May 2014 is eight months out of time pursuant to the time limits imposed by the Act. The applicants require an extension of time. The grounds of that application are articulated as:
After MRT I applied for Minister intervention which just got decision on 28/01/2014.
The applicants set out three grounds for judicial review which appear to apply to both the Tribunal and the Minister and as follows:
1.I applied for the visa to Department of Immigration which was refused.
2.Then I apply to Minister for intervention of that decision,.
3. I think Minister and Department of Immigration did not look at my situation.
The applicants have filed no written submissions. The only affidavit filed by the first applicant simply annexes the decision and reasons of the Tribunal.
The first applicant appeared in person. She confirmed that she did not require the assistance of an interpreter. She was invited to make oral submissions which she did. The thrust of those submissions was that the applicants did not attend the tribunal hearing because the:
Lawyer (migration agent?) did not tell me.
The applicant elaborated that she had not enjoyed good communications with the agent and had not been advised of events or determinations. The applicant said that she only became aware of the Tribunal’s decision to affirm the delegate’s decision upon making a personal contact with the tribunal registry.
Ministerial Intervention
This court has no jurisdiction to review a decision of the Minister not to intervene. That decision is a privative clause decision as referred to in s474(7)(a) of the Act and pursuant to s476(2) the court does not exercise jurisdiction.[1]
[1] SZFDZ v Minister for Immigration [2006] FCA 974
Background
The applicants are from India. The primary applicant sought a student visa. The second applicant applied as the spouse member of the same family unit.
The application was lodged on 18 November 2010. On 4 May 2011 the Minister’s delegate refused the application for the visa and apparently relying upon the criterion that the applicant had not demonstrated that she had requisite financial capacity.
The applicants applied to the Migration Review Tribunal on 27 May 2011. The application was clearly lodged by the applicants’ agents “Rai Consultants Proprietary Limited”.[2]
[2] CB 74
The application appoints Rai Harjap of Rai Consultants Proprietary Limited as the nominated representative of the applicant. Receipt of the application was duly acknowledged by the Tribunal in a letter of 30 May 2011 addressed to the applicants’ agent and sent by registered post. Included with that letter was certain information including advice as to how the Tribunal would correspond with the applicant and, in particular, where there is a nominated representative.
By letter of 7 February 2013 addressed to the applicants’ authorised representative, the Tribunal invited the applicants to attend at a hearing on 13 March 2013. That document also invited the applicants to provide relevant evidence.
The hearing was convened on 13 March 2013. It is not disputed that the applicants did not appear. On 14 March 2013 the Tribunal provided the applicants with an invitation to comment on or respond to an information including information suggesting that “You were not enrolled in a registered course specified subclass 573 higher education sector visa”.
Comments or a response were required by 22 April 2013 but with an invitation to request an extension of time.
The applicants failed to respond.
Consequently, on 6 May 2013 the Tribunal affirmed the delegate’s decision concluding that the first applicant had not met an essential requirement of schedule 2 for visa subclasses 570, 571, 572, 573, 574 and 575, and:
As no evidence has been provided on which the tribunal could be satisfied that the first named applicant meets the criteria for the remaining Student (Temporary)(Class TU) visa subclasses, the decision under review must be affirmed.
Extension of time
An extension of time of some eight months is required by the applicants to obtain judicial review of the tribunal’s decision. Time expired on 10 June 2013 and the current application was filed 10 February 2014. S477 of the Act deals with time limits and at subsection (2) gives a discretion to grant an extension of time:
As the Federal Circuit Court considers appropriate if:
(a)An application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the orders; and
(b)The Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the orders.
Matters for consideration in exercising the discretion include[3]:
·An acceptable explanation for the delay;
·The question of relative prejudice to the applicants or the respondent in granting or rejecting the application for an extension of time (although the mere absence of prejudice to a respondent is not sufficient to justify the grant of an extension);
·The merits of the substantive application.
[3] Wong v Minister for Immigration [2009] FMCA 747 at [27]
The delay is a long one. The explanation for the delay is two-fold by the applicants:
(1)That there was a lack of communication with an inference of negligence on the part of the migration agent;
(2)That the applicants had sought ministerial intervention and were not advised of the rejection until 28 January 2014 less than two weeks prior to the filing of the application, but some eight months out of time.
The decision by the applicants to apply for ministerial substitution of a more favourable result does not, in my view, constitute an acceptable or reasonable explanation for the delay in lodging this application. The applicants were provided with the tribunal’s reasons and decision.
It was not put to me that the applicants were not aware of or misadvised as to the right to seek judicial review of the Tribunal’s decisions and, indeed, eventually lodged that application. It is clear that the applicants exercised a choice to seek ministerial intervention. As Jessup J observed in Vu v Minister for Immigration and Citizenship and Anor:
I do not think that the applicant’s approach to the Minister under s351 of the Act provides an acceptable explanation for his failure to lodge an appeal within time. Indeed, particularly considering the timing of that approach, I am disposed to the view, in the absence of any helpful evidence from the applicant to the contrary, that the applicant’s present attempt to place himself in the position whereby he might lodge an appeal well out of time appears to be a kind of “plan B” to which resort was had once the approach under s351 proved unsuccessful[4].
[4] [2008] FCAFC 59 at [29]:
In the matter before me the applicants were provided with information (CB 150-151) together with the Tribunal’s decision advising them of both the Minister’s powers to substitute a decision and the option of seeking judicial review in this court.
The applicants also complain as to the behaviour of the authorised migration agent. This complaint, however, seems to relate to the application before the Tribunal rather than subsequent events given that the Tribunal’s decision is dated 6 May 2013 and by 24 May 2013 the applicants were making detailed submissions to the Minister seeking intervention.
I turn to consider the merits of the substantive application. The application itself makes no complaint and sets out no grounds alleging jurisdictional error. As Madgwick J observed in SZFNK v Minister for Immigration and Multicultural Affairs:[5]
There is no obligation on a court, that I am aware of, independently to consider for itself whether a self-represented litigant might, despite the inadequacies of presentation of his or her position, have a case for the court’s intervention. A strike-out application may stand in a special condition where a self‑represented applicant is involved, but on an ordinary hearing it is for an applicant, self-represented or not, to make out his or her case.
[5] [2006] FCA 1601 at [4]
In any event, there is no immediately observable jurisdictional error arising from the Tribunal’s decision. The Tribunal set out the relevant law (CB 146). The Tribunal rendered an invitation to the applicants to attend the hearing. I am satisfied that communications were forwarded to the address for service provided by the applicants. The Tribunal rendered an invitation to respond pursuant to s359A. I am satisfied that the requirements of natural justice were afforded the applicants.
Given the failure of the applicants to attend at the hearing and to respond or comment to the s359A invitation, the decision of the Tribunal was one which was open to it on the finding that there was no evidence before it that the applicant was enrolled in, or had a current offer of enrolment in, a relevant course of study.
The applicants now raise the issue of fault on the part of their migration agent. While the applicants’ documents do not particularise or even raise this complaint, some leeway was given the first applicant in evidence from the bar table which is effectively set out above. Significantly, the applicant does not allege fraud on the part of the agent in the sense of dishonesty, corruption or bad faith. Rather, the clear tenor of the applicants’ allegations were in respect of the negligence.
As the court stated in SZFDE v Minister for Immigration and Citizenship:
… there are sound reasons of policy why a person whose conduct before an administrative tribunal has been effected, to the detriment of that party, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made.[6]
[6] (2007) 232 CLR 189 at [53]
Conclusion
The application for an extension of time is refused and hence the substantive application for judicial review is dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 16 October 2014
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