Kumar v Minister for Immigration
[2014] FCCA 2589
•10 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KUMAR v MINISTER FOR IMMIGRATION | [2014] FCCA 2589 |
| Catchwords: MIGRATION – Application for judicial review – application filed out of time – application not particularised – application dismissed. |
| Legislation: Migration Act 1958 (Cth) |
| Applicant: | SHAM KUMAR |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | MLG 497 of 2014 |
| Judgment of: | Judge McGuire |
| Hearing date: | 10 November 2014 |
| Date of Last Submission: | 10 November 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 10 November 2014 |
REPRESENTATION
| Counsel for the Applicant: | The applicant appeared in person |
| Solicitors for the Respondent: | Mr Brown of Australian Government Solicitor |
ORDERS
The application filed 20 March 2014 be dismissed.
The applicant pay the 1st Respondent’s costs in the quantum of
$6, 646.00
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 497 of 2014
| SHAM KUMAR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
EX TEMPORE
This is an application under the Migration Act 1958, the substantive application listed for hearing before me today but first I am asked to consider an application by the applicant for an adjournment.
Application for an adjournment
When the matter comes on before me I have now an oral application for an adjournment by the applicant, Mr Kumar. Mr Kumar is assisted by an interpreter and I established, at the outset, that Mr Kumar and his interpreter fully understand each other for today’s purposes.
The application, as I understand it, in fact I went to some trouble to ensure that I did understand it, is based on the following:
1. That the lady who looks after me is in America.
2. I have no money.
3. She is returning next week.
That is the extent of the submissions in support of the application for adjournment.
The application is opposed by the first respondent and on the basis, as I understand it that advice as to the intended application for an adjournment was received by telephone to the first respondent’s instructors between 9.30 and 9.45 today and effectively repeating the submissions that I have just put.
The application in this matter was filed with this court as long ago as 20 March 2014. It was then supported by an affidavit which is in respect of the substantive proceedings which is of little or no import or substance.
The matter came before a registrar and orders and directions were made on 25 June 2014 which is now in excess of four months ago. Those directions provided that each of the parties sequentially file written submissions or any amended application. The applicant did not comply or did not take up the invitation to do so.
The Minister has complied with the directions within the time prescribed filed proper material.
In considering the application for an adjournment I must consider the history of the matter, any prejudices that might flow from the granting or not granting of an adjournment to either of the parties and, importantly, the strength of the application and the force of the submissions and its support.
Frankly, and despite obviously taking into account the language difficulties, but, in my view, given every opportunity with the good assistance of an interpreter, I am at a loss to understand the context and nature of the submissions in support of the application.
There is nothing on the record to show that Mr Kumar has enlisted any professional assistance in respect of his application. There are no materials filed to suggest that he has previously enjoyed the assistance of professional, or otherwise, of any other person.
The fact that Mr Kumar has no money is by itself of little or no relevance in respect of an adjournment application because there is no submission made that finances could or would be used in a particular way to assist him and the bland statement that “the lady is returning next week” without context is of little or no weight.
This is a matter where both parties should have an expectation of the application being brought to an end. That applies no less to the Minister than it does to the applicant.
In my view there is no force to the submissions in the application for an adjournment. This matter has been listed now for four and a half months. Notice was given only a matter of less than about an hour ago, and as I have said, there is no material of any substance in any event on the file if assistance had been enlisted. The application for an adjournment is refused.
Substantive application
This is an application filed 20 March 2014 initially seeking an order that the respondent show cause why a remedy should not be granted to the applicant under section 476 of the Migration Act 1958. Following the directions of the registrar made 25 June 2014, the application was listed for substantive hearing.
The application details the following and clearly prepared by the applicant himself.
Grounds of application. 1. The decision made by the tribunal member is contrary to natural justice.
And what I take as the second ground:
The tribunal has applied procedural fairness to the applicant’s particulars.
Presumably that is meant to read that it has not applied procedural fairness.
On 24 February 2014 the Migration Review Tribunal determined that it did not have jurisdiction to review the delegate’s decision made 4 December 2013 refusing a visa as the application was lodged out of time and it followed that the tribunal hence had no discretion to vary the prescribed or mandated period in which an application for review may be lodged.
The applicant now appears before me unrepresented but has the assistance of an interpreter and again I have taken trouble to ensure that Mr Kumar, and his interpreter, fully understand each other.
Neither the application nor the accompanying affidavit filed the same day otherwise particularise the applicant’s argument. Nor has the applicant followed the orders and directions of the registrar to provide any written submissions.
I have this day taken some oral submissions from the applicant which effectively repeats material in the court book which I understand to be that the applicant and his spouse (previously his spouse sponsor on the application) had separated and that the spouse may have been involved in the applicant perhaps or arguably not being appraised within time of the delegate’s decision.
The application is opposed by the first respondent, who seeks an order that the application be dismissed.
The applicant Mr Kumar has sought a partner temporary class UK visa in an application lodged 13 September 2012. Mr Kumar is an Indian national. He first came to Australia on 10 April 2008 holding a student visa which expired on 2 September 2010.
Mr Kumar married Ms Macrina Fortune, who is an Australian citizen, on 29 July 2012 and the evidence of Mr Kumar, such as it is, is that they had first met in person on 12 November 2011.
As the applicant had not himself held a substantive visa since the expiration of his student visa on 2 September 2010, the Minister’s delegate wrote to the applicant advising that he would need to demonstrate a genuine spousal or de facto relationship for at least 12 months prior to the lodgement of his application and that he either admit the relevant criteria in the schedule to the migration regulations or, alternatively, that there were compelling reasons to waive such criteria.
On 4 December 2013 the Minister’s delegate refused the applicant’s application not being so satisfied that the applicant was in a spousal relationship with his sponsor at the relevant time.
The applicant, Mr Kumar, proceeded to lodge an application for review of the delegate’s decision. That application was lodged on 6 January 2014 and on 14 January 2014 the applicant’s wife wrote in a lengthy letter to the department withdrawing her sponsorship. That letter is included in the court book at page 165 and rather than reading the entire letter it suffices to say that the last paragraph confirms her intention to cancel her sponsorship of Mr Kumar’s application.
On 20 January the tribunal wrote to the applicant noting that the application for review as lodged out of time and inviting comment from the applicant by 14 February 2014.
On 12 February and in accordance with that invitation, the applicant made a statutory declaration deposing that his wife had taken the department’s correspondence, amongst other belongings of the applicant, upon their separation and taken herself to Sydney. The tone and tenor of the letter suggests that she may have been – I do not think there is a better word for it – blackmailing him for the return of the letter and the other belongings.
The statutory declaration was lodged on 14 February 2014 and the text of that statutory declaration effectively comprised the submissions put to me orally by Mr Kumar today.
On 24 February the tribunal decided that it had no jurisdiction to review the delegate’s determination on the grounds that the application was filed out of time and that the tribunal had no discretion to extend or vary the prescribed or mandated time for the lodgement of an application.
The tribunal found that the applicant was deemed to have been notified of the delegate’s decision on 13 December 2013, pursuant to section 494C of the Act and hence the application was outside the prescribed 21 day period.
As mentioned above in these reasons, the applicant has not particularised or further detailed his application or argument either in his affidavit or in the oral submissions.
I am satisfied that the applicant was properly served with the delegate’s decision pursuant to the provisions of section 494B(4) and section 494C(4) of the Act. The material before the court and provided in the court book, to my mind, confirms the applicant’s understanding of service by post.
The applicant contends a lack of natural justice and/or procedural fairness. However, it is clear from paragraphs 5 and 6 of the tribunal’s decision, which is found in the court book at page 190, that the tribunal did in fact acknowledge and consider the contents of the applicant’s statutory declaration, being his explanation for delay in lodging his application and, in particular, at paragraphs 5 and 6 of those short reasons.
Nevertheless the tribunal properly concluded, in my view, that regardless of that explanation, the tribunal was empowered with no discretion to waive or vary the mandated time period and it followed, as a matter of logic, that the tribunal had no jurisdiction to consider the substantive application.
In my view, as I have said, the terms of the Act and the regulations are clear. The tribunal fully appraised itself of the limitations provided in those orders and reasons and the tribunal deemed itself without discretion to vary the time limits imposed.
Insofar as natural justice or procedural fairness are relevant, if at all, in those circumstances I can only repeat that perhaps for the benefit of Mr Kumar, the tribunal did in fact, at paragraphs 5 and 6, acknowledge receipt and consideration of the reasons for delay, although they could not be considered given the nature of the statute.
I am satisfied that the tribunal did not fall into jurisdictional error and the application before me today will be dismissed.
I am satisfied that in matters such as this that the normal course is that costs should follow the event.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 3 December 2014
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