Lueangsangthong v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 982

Federal Circuit and Family Court of Australia

(DIVISION 2)

Lueangsangthong v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 982

File number(s):	SYG 1336 of 2018
Judgment of:	JUDGE HUMPHREYS
Date of judgment:	21 November 2022
Catchwords:	MIGRATION – Administrative Appeals Tribunal – Student visa – whether application for review filed within prescribed time.
Legislation:	Migration Act 1958 (Cth) ss 494B, 494C
Division:	Division 2 Family Law
Number of paragraphs:	21
Date of last submission/s:	16 November 2022
Date of hearing:	16 November 2022
Place:	Parramatta
Solicitor for the Applicants:	The Applicant appeared in person.
Solicitor for the Respondents:	Ms Pieri of Minter Ellison.

ORDERS

SYG 1336 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

PONGCHET LUEANGSANGTHONG

First Applicant

SUNETTRA LUEANGSANGTHONG

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMNISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE HUMPHREYS
DATE OF ORDER:	21 NOVEMBER 2022

THE COURT ORDERS THAT:

1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.The application is dismissed.

3.The Applicant to pay the First Respondent’s costs fixed in the amount of $5600.00.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE HUMPHREYS

INTRODUCTION

1. The applicant is a citizen of Thailand, born in 1968.  He first arrived in Australia on a Tourist visa on 4 November 2001.  He was then granted his first Student visa (TU 572) as a dependent onshore on 18 January 2002.  This visa was valid until 13 September 2004.  He was granted a further three Student visas as a dependent, and then granted a Student visa as the primary visa holder on 28 March 2008.

2. Since his initial Student visa, the applicant has held a further four Student visas or associated bridging visas and had been residing in Australia as a temporary visa holder for over 16 years as at the date of the departmental decision in 2018.

3. On 23 February 2018, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant a further Student visa on the basis that the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.

4. In a letter of the same date, sent via email to the applicant at his nominated email address, the applicant was advised of his right for merits review of the decision at the Administrative Appeals Tribunal (“the Tribunal”).  The letter stated as follows:

   An application for merits review of this decision must be given to the AAT within 21 calendar days after the day on which you are taken to have received this letter.  This review period is prescribed in law and an application for merits review may not be accepted after that date.

5. The applicant sought merits review at the Tribunal. However, the review application was lodged with the Tribunal on 19 March 2018. In a decision dated 18 April 2018, the Tribunal found that in accordance with s 494C of the Migration Act 1958 (Cth) (“the Act”), the applicant was presumed to have received the notification letter that his visa had been refused on the day that it was transmitted by email to him.  Accordingly, the prescribed period to apply to the Tribunal for merits review ended on 16 March 2018.  As the application for review was not received until 19 March 2018, the Tribunal found it had no jurisdiction in the matter.

   Grounds of Judicial Review

6. In an application, filed with the Court on 14 May 2018, the applicant relies on the following grounds of judicial review (reproduced verbatim):

   1.   I met all the condition to grant the student visa in Minister for Home affairs and AAT.

   2.   I lodged AAT within the valid time frame, but AAT didn’t review my case because AAT thought I didn’t review it in valid time.

   The Applicant’s Submissions

7. The applicant appeared before the Court unrepresented.  He was assisted by an Interpreter.  Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court Book and that the first respondent’s written submissions had been translated to him.  The Court also ensured the applicant had access to a pen and paper so he could take notes during the course of the hearing should he so wish to.

8. At the commencement of the hearing, the Court explained that it was undertaking judicial review, not merits review and the difference between the two types of review.  The Court also explained the procedure by which the hearing would be undertaken.

9. Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of his case.  The applicant told the Court that he had done everything he could do to comply with the requirements for lodging the application for review to the Tribunal on time. This included paying his Migration Agent the filing fee and confirming with them that they had lodged the application within the required time period.

10. The Court explained that it did not doubt his evidence, but that the Tribunal had no discretion to extend the time period for filing of the application. It appeared he had been let down by his Migration Agent.

11. At the conclusion of the first respondent’s oral submissions, the applicant was asked if you wish to state anything in reply.  He answered “No”.

    Consideration

12. This matter revolves around whether or not the applicant lodged his application for review at the Tribunal within the required 21 day time period.

13. Based on evidence attached to the Affidavit of Julian Pinder, Solicitor, affirmed 20 July 2018, the Court is satisfied that the refusal decision was sent to the applicant on 23 February 2018 at his nominated email address. The applicant is presumed to have received the refusal decision on the day it was transmitted to him: ss 494C and s 494B(5) of the Act.

14. The Court notes that the application form lodged with the Tribunal states that the “application lodgement date” is shown as 19/3/2018 06:49:10 AEDT (Court Book pages 74-75).  When the applicant was invited to comment on the validity of the application, his Migration Agent submitted that on 16 March 2007 (presumed to be 16 March 2018) she paid the Tribunal filing fee by bankcard.  It was submitted that a valid application was thus made on 16 March 2018 when payment was made.  The Migration Agent did not attach any evidence of payment had been made of the Tribunal on 16 March 2018.

15. Also attached, was an application form to the Tribunal dated 6 March 2018 (Court Book pages 97-100) which specifically states “the application has not been successfully lodged with the AAT.  You can print this form to lodge an application by post, fax or in person at an AAT office” (emphasis added).

16. The agent also attached a submission from the applicant which stated that the applicant requested the agent to submit the application to the Tribunal by no later than 9 March 2018.  The applicant says that on 7 March 2018, the agent “positively confirmed” that the application had already been lodged.  The applicant states he only learned on 16 March 2018 that the application had not been lodged.

17. On the basis of the evidence before the Court, it is clear that the application for review by the Tribunal was not lodged within the prescribed time period of 21 days.  In these circumstances, the Tribunal was correct to find that they had no jurisdiction.  This appears to be a matter where the applicant has been let down by his Migration Agent.  Regrettably, this is not a matter that the Court can take into account in considering the application before the court.

18. Ground 1 of the application for judicial review is misconceived. The Court does not have jurisdiction to determine if the applicant met the criteria for the grant of the visa sought. The Court is limited to judicial review.

19. For the reasons set out above, Ground 2 has no merit as the application for review by the Tribunal was not lodged within the prescribed time period of 21 days. Ground 2 has no merit.

    conclusion

20. No jurisdictional error is apparent in respect of the matters relied upon by the applicant.  As the applicant is unrepresented, the Court has considered the Tribunal decision record but is unable to find any unarticulated jurisdictional error.

21. In these circumstances, the Court has no option other than to dismiss the application.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Deputy Associate:

Dated:       21 November 2022