KUMAR v Minister for Home Affairs
[2019] FCCA 2068
•22 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KUMAR v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2068 |
| Catchwords: MIGRATION – Application for 457 visa – application for review filed out of time – failure by applicant to establish compliance with sponsor pre-condition – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.338, 347(1)(b)(i) Migration Regulations 1994 (Cth), r.4.10 Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05(2)(a) |
| Dial a Doctor Pty Ltd v Minister for Home Affairs and Anor [2019] FCCA 903 DQC18 v Minister for Home Affairs and Anor [2019] FCCA 1113 Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 |
| Applicant: | SANJEEV KUMAR |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1275 of 2018 |
| Judgment of: | Judge Egan |
| Hearing date: | 22 July 2019 |
| Date of Last Submission: | 22 July 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 22 July 2019 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr G. Hill |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That paragraph 1 of the orders made on 26 June 2019 by Registrar Allaway be set aside pursuant to the provisions of rule 16.05(2)(a) of the Federal Circuit Court Rules 2011 (“the Rules”).
That this proceeding be reinstated pursuant to the provisions of rule 16.05(2)(a) of the Rules.
That the application for review filed on 10 May 2018 be dismissed.
That the Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $3,737.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1275 of 2018
| SANJEEV KUMAR |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this matter, Registrar Allaway dismissed the applicant’s originating application filed on 10 May 2018 by order made on 26 June 2019. The application was dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (the Rules) – namely on the basis that the applicant had failed to appear on the day that his application was listed for hearing.
The applicant filed an application for reinstatement. That application was not opposed by the lawyers for the first respondent. Accordingly, by order made today, paragraph 1 of the order of Registrar Allaway made on 26 June 2019 was set aside and the Court ordered that the proceeding be reinstated accordingly.
The originating application filed on behalf of the applicant relates to a decision of the Administrative Appeals Tribunal (the Tribunal) handed down on 17 April 2018. The grounds of the application are as set out on page 4 of the originating application for review and are as follows:
“The issues and errors which I believe to be made by Department of Home Affairs and Administrative Appeals Tribunal are:
· Department of Home Affairs decision to refuse the application while I was not in Australia and travelled as a holder of Bridging Visa B, which allows the applicants to leave and return.
· Department of Home Affairs decision made on 07 February 2018, which is Date of my Marriage and this raised concern for Administrative Appeals Tribunal decision for not to review the decision of the delegate of the Minister by deciding that we have no jurisdiction
· Permissions to apply for another substantive visa while holder of a Bridging visa was not available to me, which I believed I was and will be entitled to apply for Permanent Employer Sponsored Visa Subclass 187.
· Ignorance by Minister of Immigration and AAT to exercise their rights and did not consider any favourable options available to me.”
When the matter first came before the Court today, the applicant asked for an adjournment of the matter in order that he might obtain legal advice. He referred the Court to an affidavit filed on his behalf on 1 July 2019. That affidavit, in the handwriting of the applicant, referred to his being unable to attend Court on 26 June 2019 due to a medical condition said to be extreme stress caused by family issues back in India. Annexed to the affidavit was a letter from Westgate Medical Centre dated 28 June 2019 directed to one Ms Anthy Kapsalakis, who, in the medical centre’s letter, was said to be a psychologist.
There is no further evidence that has been provided by the applicant of any ongoing stress being suffered by him, or as to any medical condition which might have been suffered by him on the day of hearing today. When asked what the attitude of the first respondent was to the applicant’s application for an adjournment, Mr Hill of Counsel advised that such application for an adjournment was opposed. Mr Hill submitted that in circumstances where the applicant had no prospects of success in respect of the application for review, the application for the adjournment should be refused. The Court proceeded to hear argument as to the basis upon which it was submitted that the application for review was without merit.
In that regard, the Court was taken to page 1 of the Court book, which, relevantly, was the applicant’s first page of the application for a temporary work (skilled)(sub-class 457) visa. At Court book page 3, the applicant indicated that he wished to authorise another person to “act and receive communication about this application” on his behalf. On the same page, the contact details for the applicant’s business sponsor were recorded as being one Paul Coles, whose address was nominated as being “Factory 2/6 Kitson Street, Frankston.”
On page 7 of the Court book, the sponsoring employer was nominated as “Pro Street Automotive”. The address of that business was the same as the address given for Mr Coles.
At Court book page 58, there appears a letter dated 7 February 2018 sent by email to the applicant at the nominated contact address stipulated by the applicant at Court book page 4 on his visa application as being the email address to which correspondence was to be sent to him concerning his visa application – namely to the email address [email protected].
The letter dated 7 February 2018 from the department to the applicant constituted notice of the refusal of the applicant’s application for the relevant subclass 457 visa. It was submitted on behalf of the first respondent by Mr Hill that, pursuant to the provisions of Regulation 4.10 of the Migration Regulations 1994 (Cth) (‘the Regulations’), the applicant had 21 days after the day of the giving of notice to the applicant on 7 February 2018 for the applicant to make application to the Tribunal for review of the decision of the delegate to refuse the application for the visa. Regulation 4.10 of the Regulations provides as follows:
“REG 4.10
Time for lodgement 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.
Mr Hill of Counsel also referred the Court to the provisions of section 347(1)(b)(i) of the Migration Act 1958 (Cth) (‘the Act’), which section provides as follows:
“SECT 347
Application for review of Part 5-reviewable decisions
(1) An application for review of a Part 5-reviewable decision must:
(a) be made in the approved form; and
(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…”
It was submitted, therefore, that in order for a valid application for a review of the delegate’s decision to be made, such application in this case ought to have been filed no later than 28 February 2018, that being the end date of the “prescribed period” being 21 days after the giving of notice.
The application filed by the applicant for review of the delegate’s decision appears at page 64 of the Court book. That document records that it was lodged on 1 March 2018 at 00:06:09 AEDT. In those circumstances, it was submitted that the applicant was out of time for the making of this application for review, and that, therefore, the Tribunal had no jurisdiction to entertain any application for review.
It was submitted that the mandatory time limit was “jurisdictional” in nature, such that if the application was not validly made within 21 days of the date of the deemed receipt of notice of the refusal of the visa application, then there was no power on the part of the Tribunal to consider any review.
It was further submitted that the Act made no provision for the granting of an extension of time for the filing of the application for review. It was submitted that though the application was filed some six minutes and nine seconds out of time, it was nevertheless out of time and that that was a matter which could not be remedied.
The Court regularly deals with matters going to the failure of applicants to make applications for review within time. [1]
[1] Dial a Doctor Pty Ltd v Minister for Home Affairs and Anor [2019] FCCA 903; DQC18 v
In this case, the applicant was out of time in the filing of his application for review. There is no dispute that the applicant was duly notified of the decision. In all of the circumstances, the Tribunal was justified in holding, as it did, that it had no jurisdiction to entertain the application filed on behalf of the applicant.
Further, an additional basis for rejection of the application for review filed on behalf of the applicant was brought to the Court’s attention by counsel on behalf of the first respondent. Reference was made to the provisions of section 338 of the Act which provided as follows:
“SECT 338
Definition of Part 5-reviewable decision
(1) A decision is a Part 5-reviewable decision if this section so provides, unless:
(a) the Minister has issued a conclusive certificate under section 339 in relation to the decision; or
(b) the decision is a Part 7-reviewable decision; or
(c) the decision is to refuse to grant, or to cancel, a temporary safe haven visa; or
(d) the decision is a fast track decision.
(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) if the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:
(i) the non-citizen is, at the time the decision to refuse to grant the visa is made, identified in an approved nomination that has not ceased under the regulations; or
(ii) a review of a decision under section 140E not to approve the sponsor of the non-citizen is pending at the time the decision to refuse to grant the visa is made; or …”
It is clear that section 338 provides that a decision of the type made by the delegate on 7 February 2018 is reviewable if the non-citizen is sponsored by an approved sponsor at the time of the making of the application to review the decision to refuse to grant the visa, or if an application for review of a decision not to approve the sponsor had been made, but at the time of the filing of the application for review, the decision to review the sponsorship decision was pending.
It has been established that on 10 August 2017, the nomination of the applicant’s sponsor, Pro Street Pty Ltd, as an approved sponsor, was refused. [2] It has further been established that as at the date of the making of the application for review of the delegate’s decision made on 7 February 2018, the applicant was not the subject of an approved nomination, [3] and further, that an application reviewing the refusal of the nomination of the applicant’s sponsor was not pending at the time of the lodgement of the application for review.
[2] Court book page 54.
[3] Court book page 62.
In all of those circumstances, therefore, the application for review was entirely without merit because fundamental pre-conditions to the grant of the visa had not been met.
The grounds for review as set out in the originating application relate in the first two instances to complaints that decisions were made by the Department of Home Affairs whilst the applicant was overseas. The implication is that a decision ought not to have been made in such circumstances. As to that, the Act does not prescribe that an applicant has to be in the country before an application relating to a visa decision is made. There is nothing of merit in such two grounds.
The remaining grounds, though not expressed in clear terms, are likewise without merit. The third ground relates to a claim that the applicant believed he was entitled to apply for a different type of visa and, therefore, such claim is irrelevant. The fourth ground is a general ground of review lacking in particularity which does not in any way affect the court’s finding as to the unmeritorious nature of the application for review. The contention seems to be that in some way the Minister and the Tribunal failed to find circumstances which were advantageous to the applicant, so warranting that the visa should be granted. There was no onus on the part of either to do so.
As to that issue, it cannot otherwise be said that the Tribunal failed to make an obvious finding about a critical fact. In Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25]-[27] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said as follows:
“[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.35 It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
[26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.
[27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”
Further, it cannot be said that no other rational or logical decision-maker could not have made the same decision as the tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]:
“130. In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.”
Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification as such respective concepts were considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] per Hayne, Kiefel and Crennan JJ, where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
No jurisdictional error has been demonstrated on the part of the tribunal.
In all of the circumstances, the application for review filed on behalf of the applicant is dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 30 July 2019
Minister for Home Affairs and Anor [2019] FCCA 1113.
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