Khabra v Minister for Immigration

[2015] FCCA 2484

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHABRA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2484

Catchwords:
MIGRATION – Judicial review of Migration Review Tribunal decision – application for a Partner (Temporary) (Class UK) visa – no jurisdiction to determine application for review – filed out of time – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.347(1), 347(1)(b), 494C

Migration Regulations 1994 (Cth), r.4.10
Federal Circuit Court Rules 2011 (Cth), r.44.12

SZFDE v Minister for Immigration and Citizenship [2007] HCA 35

Applicant: JASPREET SINGH KHABRA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 2240 of 2014

Judgment of: Judge Hartnett

Hearing date: 28 August 2015

Delivered at: Melbourne

Delivered on: 28 August 2015

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Ms Bosnjak

Solicitors for the First Respondent: Clayton Utz

ORDERS

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

2. The Application filed on 7 November 2014 is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $1,984.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2240 of 2014

JASPREET SINGH KHABRA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

1. Before the Court is an application for judicial review of a decision of the Second Respondent (‘Tribunal) made on 8 October 2014.  The Tribunal determined, in that decision, that it did not have jurisdiction to consider the application before it.

2. The Applicant filed his Application on 7 November 2014.  On 18 February 2015, Registrar Allaway made Orders, by consent, which included that the matter be listed for a show cause hearing this day under r.44.12 of the Federal Circuit Court Rules 2011 (Cth), and that each of the First Respondent and Applicant file and serve written submissions. 

3. The First Respondent filed an Outline of Submissions which was served upon the Applicant, and which the Applicant had read and understood.  Those Outline of Submissions were dated 12 August 2015.  The Applicant did not file and serve any written submissions but was given leave this day, firstly, to appear by telephone on this hearing and, secondly, to make oral submissions to the Court generally and in response to the First Respondent’s Outline of Submissions.  The Applicant was assisted in the proceeding by an interpreter fluent in the Punjabi and English languages.

History

1. The Applicant was born on 26 February 1990.  He is now aged 25 years.  He is a citizen of India.  On 6 August 2013, the Applicant applied for a UK Partner (Temporary) and BS Partner (Residence) visa.  The Applicant was represented by a migration agent, who was also his authorised recipient.  The Applicant indicated in paragraph 82 of his Application for Migration to Australia by a Partner, Form 47SP, that all communication about his application should be sent to his migration agent.

2. The Applicant’s migration agent completed a Form 956, Advice by a Migration Agent/Exempt Person Providing Immigration Assistance.  In that form, the migration agent noted, in paragraph 18, that he had been appointed as the migration agent of the Applicant and agreed to the Department of Immigration and Citizenship (as it then was) communicating with him by fax, email or other electronic means to that end.  The migration agent provided an email address of [email protected] in paragraph 7 of the Form 956.

3. On 14 July 2013, the Applicant married Ms Irene Poni in Lalor in the State of Victoria.  At the time of the marriage, the Applicant was an unlawful non-citizen.  He is currently in Australia on a bridging visa.

4. On 15 July 2014, the Delegate of the Minister of Immigration and Border Protection (‘the Delegate’) refused the Applicant’s application for a Partner (Temporary) (Class UK) Visa.  The decision of the Delegate was emailed to the Applicant’s migration agent at the agent’s email address.

5. On 8 August 2014, the Applicant applied to the Tribunal for review of the Delegate’s decision.  By a letter dated 12 August 2014, the Tribunal acknowledged receipt of the Application on 8 August 2014.  By a letter dated 15 August 2014, the Tribunal invited the Applicant to comment on the validity of his application for review.  The Tribunal stated that:-

   “I am of the view that your application is not a valid application as it was not lodged within the relevant time limit.  The time limit is 21 days from the day on which you are taken to have been notified of the primary decision.  The primary decision was emailed to your authorised recipient on 15 July 2014 and, on the basis that 15 July 2014 was the date on which you are taken to have been notified, the last date for lodging the application for review was 5 august (sic) 2014.  As the application was not received until 8 August 2014, it appears to be out of time.  However, this is a matter which must be determined by a Tribunal Member.”

6. On 2 September 2014, the Applicant emailed the Tribunal and stated that his migration agent had not informed him that his visa application had been refused and subsequently gave him incorrect advice about the time in which he could lodge his application for review with the Tribunal.  No sworn evidence was placed before the Tribunal, or before this Court, from the migration agent.

7. On 8 October 2014, the Tribunal notified the Applicant that it had no jurisdiction to determine his application for review in respect of the Delegate’s decision to refuse to grant a Partner (Temporary) (Class UK) visa.  The Tribunal considered the Applicant’s submissions to it but was satisfied that the letter of notification of the Delegate’s decision was transmitted on 15 July 2014 to the correct address.  In fact, the Applicant takes no issue with that.

8. On that basis, the Tribunal concluded that:-

   a)in accordance with s.494C of the Migration Act 1958 (Cth) (‘the Act’), the Applicant was taken to have received the Delegate’s decision on 15 July 2014;

   b)pursuant to s.347(1)(b) of the Act and reg.4.10 of the Migration Regulations 1994 (Cth) (‘the Regulations’), an application for review of the Delegate’s decision had to be made within 21 days after the Applicant was notified of the decision in accordance with the statutory requirements; and

   c)as the application for review was not received until 8 August 2014, it was not made in accordance with the relevant legislation.

Consideration

1. The Applicant does not dispute that the notification letter and Delegate’s decision were emailed to his migration agent’s email address and received by his migration agent. The correspondence forwarded from the Tribunal set out the 21 day time limit within which an application for review was required to be made to the Tribunal.  The application was not made within the prescribed period. 

2. Even if the Court were to accept, albeit there is no evidence from the migration agent before the Court on this matter, that the migration agent did not inform the Applicant of the Delegate’s decision, the statutory scheme provides no discretion to the Tribunal to extent the time in which the Applicant can file his application.  There is no evidence that the migration agent’s conduct constituted fraud on the Tribunal, which would lead to jurisdictional error.[1] 

   [1] SZFDE v Minister for Immigration and Citizenship [2007] HCA 35.

3. The operation of s.347(1) of the Act and reg.4.10 of the Regulations means that, whatever the circumstances, there was no outcome open to the Tribunal other than to make the decision that it did. To the extent that the Tribunal in circumstances such as these had any obligation to afford the Applicant procedural fairness, it did so in its letter to the Applicant of 15 August 2014. Further, it took into account the Applicant’s submissions of 2 September 2014.

4. The application must be dismissed and costs will follow the event.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 10 September 2015