LALH v Minister for Immigration

[2013] FCCA 76

FEDERAL CIRCUIT COURT OF AUSTRALIA

LALH v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 76

Catchwords:  MIGRATION – Review of Migration Review Tribunal decision – error by the Tribunal in determining its jurisdiction, by reference to whether the review application before the Tribunal was filed within time.

Legislation: Migration Act 1958 (Cth)

Cases cited: SZIWV v Minister for Immigration [2007] FCA 1338

Applicant: NAVJOT SINGH LALH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2376 of 2012

Judgment of: Judge Driver

Hearing date: 18 April 2013

Delivered at: Sydney

Delivered on: 18 April 2013

REPRESENTATION

Counsel for the Applicant: Mr P Afshar

Solicitors for the Applicant: Christopher Levingston & Associates

Counsel for the Respondents: Ms R Francois

Solicitors for the Respondents: Minter Ellison

CONSENT ORDERS

1. On 18 April 2013, the Court declares that the application for review lodged by the applicant with the Migration Review Tribunal on 27 April 2012 seeking review of a decision of a delegate of the first respondent dated 24 September 2012 was received within the time limit prescribed by s.347(1)(b) of the Migration Act 1958 (Cth) and regulation 4.10 of the Migration Regulations 1994.

2. A writ of certiorari shall issue quashing the decision of the Migration Review Tribunal dated 24 September 2012.

3. A writ of mandamus shall issue requiring the Migration Review Tribunal to re-determine the review application before it according to law.

4. The first respondent pay the applicant's costs fixed in the amount of $6,471.

5. The Court notes that the first respondent accepts that the second respondent erred in its decision dated 24 September 2012 when it found it did not have jurisdiction because the purported notification of the delegate's decision sent by email on 30 March 2012 was not valid notice under s.66 of the Migration Act 1958 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2376 of 2012

NAVJOT SINGH LALH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application filed on 19 October 2012 seeking judicial review of a decision of the Migration Review Tribunal (Tribunal) made on 24 September 2012.  The Tribunal found it did not have jurisdiction in the matter before it on the basis that the review application had not been filed with the Tribunal within the prescribed period.  As is well known, the Tribunal has no power to extend that period. 

2. The matter was listed for hearing before me today.  The applicant filed an Application in a Case on 28 March 2013 (also listed for hearing today) seeking a number of orders, including orders for discovery and interrogatories.  That application was directed to establishing that the migration agent who had initially been assisting the applicant with his visa application acted without instructions and committed fraud on the Commonwealth.   

3. The particular issue bearing upon the decision of the Tribunal was whether the review application had been lodged in time.  This in turn raised for consideration the question of whether the applicant had been properly notified of the decision of the delegate.  The Tribunal found that he had.  His complaint was that he had not, because the email address used by the Minister’s Department was not the applicant’s email address and he had, so he said, not given any authority for that address to be used for the purposes of communications.  That was, however, only one element of the broader issues of agent fraud that the applicant now asserts. 

4. Having examined the circumstances, the Minister is willing to concede that the Tribunal fell into jurisdictional error in dealing with the notification issue and hence its own jurisdiction.  Counsel for the applicant was initially minded to press the Court to continue for additional declaratory relief in relation to the validity of the applicant’s initial visa application.  I was taken by counsel for the Minister to the decision of the Federal Court in SZIWV v Minister for Immigration[1].  Having regard to that decision, I am persuaded that the interests of the administration of justice would not be served by pursuing that broader issue which the applicant wishes to agitate.

   [1] [2007] FCA 1338

5. I accept from that decision that the Tribunal is empowered to review not only decisions of a delegate, but purported decisions of a delegate.  I cannot review the decision of the delegate because it is a “primary decision” as defined in the Migration Act 1958 (Cth), whether or not the initial visa application made by the applicant was a valid one. It is open to the Tribunal to address the issue of the validity of the visa application purportedly made by or on behalf of the applicant. However, the Tribunal did not decide whether the applicant’s original visa application was a valid one. The Tribunal simply decided that it had no jurisdiction because of its view that the review application had been filed late.

6. The Tribunal regarded the broader issue of the validity of the visa application as irrelevant to its decision on its own jurisdiction.  In the terms of that decision, it was correct.  However, as the Tribunal fell into jurisdictional error in determining its own jurisdiction, the Tribunal is able to review the decision of the delegate in terms of the validity of the visa application and if that issue is pursued before the Tribunal by the applicant, it would no doubt, be required to consider that issue.  Ultimately, the orders proposed by the Minister were consented to by the applicant.  The parties are also agreed on the issue of costs. 

7. I will therefore, make orders in accordance with the short minutes presented on behalf of the Minister.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  19 April 2013