Manandhar v Minister for Immigration
[2019] FCCA 2742
•11 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MANANDHAR v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2742 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Student visa application – application for judicial review of a decision of the Administrative Appeals Tribunal that it lacked jurisdiction to hear and determine a merits review application from the decision of the Delegate because it was lodged outside the applicable 21 day statutory time – applicant was one day late in lodging merits review application – applicant claimed that Administrative Appeals Tribunal had discretion to waive 21 day statutory time limit for compelling reasons – Administrative Appeals Tribunal correctly had regard to the relevant statutory regime – no jurisdictional error identified – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.66, 338, 347, 476, 494B, 494C, 494D Migration Regulations 1994 (Cth) |
| Cases cited: Ali v Minister for Home Affairs [2019] FCA 1102 Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407 Patel v Minister for Immigration and Citizenship [2012] FCA 145 |
| Applicant: | KAPIL MANANDHAR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 4027 of 2017 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 11 September 2019 |
| Delivered at: | Sydney |
| Delivered on: | 11 September 2019 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Mr D. Baddeley |
| Solicitors for the First Respondent: | Mills Oakley |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 22 December 2017 is dismissed.
The Applicant pay the First Respondent’s costs of the proceeding in the sum of $5,400.
The name of the First Respondent be amended from ‘Minister of Immigration and Border Protection’ to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 23 October 2019 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 4027 of 2017
| KAPIL MANANDHAR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised from Transcript)
Introduction
The Applicant in this proceeding is a male citizen of Nepal aged 26 years, having been born on 13 May 1993.
By Application filed in this Court on 22 December 2017 he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 28 November 2017 in which the Tribunal found that it did not have jurisdiction to hear and determine an application for merits review of the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 10 October 2017 refusing to grant to him a Student (Temporary) (Class TU) (Subclass 500) visa (Student visa) because it had been lodged with the Tribunal after the time prescribed under the Migration Act 1958 (Cth) (the Act).
I note that it is common ground between the parties that the merits review application was lodged one day outside the statutory time limit and in my view, in the circumstances of this case, that common ground was correctly taken by reason of the combined effect of s.338(2), s.347(1)(b), reg.4.10(1)(a) of the Migration Regulations 1994 (Cth) (Regulations), s.494B(5), s.494C(5) and s.494D and I so find as a jurisdictional fact.
Background
The Applicant had been granted a previous Student visa valid until 23 August 2017. On 22 August 2017, he applied electronically for the Student visa through his appointed registered migration agent, whom the Applicant authorised to receive written communications on his behalf as his authorised recipient at the migration agent’s nominated email address (nominated email address). At the time of lodgement of his Student visa application, he was enrolled in a Bachelor of Accounting Degree at the Universal Business School in Sydney (Universal) due to finish in January 2019.
At time of application the Applicant was, therefore, compliant with cl.500.211 of Sch.2 to the Regulations as a primary criterion which required him to be enrolled in a course of study both at time of application and at time of decision. He was compliant with it certainly at time of application.
Decision of Delegate
In her Decision Record the Delegate referred to cl.500.211 to the Regulations and the fact that the Applicant had lodged a Confirmation of Enrolment in the Bachelor of Accounting Degree at Universal on 22 August 2017, but found from the Department’s database and the Provider Registration and Individual Student Management System, that on 29 September 2017 Universal had “cancelled” the Applicant’s enrolment due to non-commencement of studies.
Accordingly, it followed that the Applicant at time of decision failed to satisfy a primary criterion, namely, with the requirement of cl.500.211(a) that he be enrolled in a course of study, and the Delegate refused to grant the Student visa to the Applicant.
The evidence before me establishes that the Decision Record of the Delegate and the Notification of refusal of application for a Student visa letter, both dated 10 October 2017, were sent by email to the nominated email address on the same date, being 10 October 2017. Further, this is common ground, because it was admitted by the Applicant in his merits review application lodged with the Tribunal lodged on 1 November 2017 and further confirmed to be common ground by the Applicant at the hearing today.
Decision of Tribunal
Attached to his merits review application form was a medical certificate from Dr Meghana Bhargava which stated that the Applicant:
…
Mr Kapil Manandhar has been unwell off and on for 4 weeks and has been unfit for work from Monday, 30 October 2017 to Wednesday, 1 November 2017 inclusive…
An email from the Applicant’s registered migration agent was also sent to the Tribunal on 1 November 2017, which stated:
…
I am writing this email on behalf of the my client Mr KAPIL MANANDHAR who had his visa refusal on 10th of October 2017 and had a timeline to submit his AAT review within 21 days after the day his visa was refused and the deadline was until yesterday. My client was unwell for last few weeks and was therefore couldn’t contact me to submit his application and organize fee for AAT review. I have lodged his AAT application for review today and requesting you to consider 1 day miss on medical grounds of my client.
…
Then, by letter dated 21 November 2017, the Applicant, in response to an invitation from the Tribunal to comment on the validity of his merits review application, stated as follows:
…
My name is Kapil Manandhar. I am writing this letter in relation to my circumstances for making AAT application after 1 day of my given deadline of 21 days. I was unwell for a few weeks after I lodged my Student Visa application for Subclass 500 and my visa got refused on 10/10/2017 and I was very depressed. I was also struggling to organize Fees for AAT Merit Review Application as I was unwell and could not do anything despite the multiple reminders from my Migration Agent to lodge it in time.
By the time, I got better and went to my doctor for medical certificates and had organized funds for AAT review application, I had already missed my deadline of 21 days to submit my application with AAT. I was aware that it would be invalid application as stated by my Migration Agent and AAT have no jurisdiction, but I insisted to lodge the application, thinking that AAT probably have some room to consider on medical grounds as we all get sick which is beyond our control and I just missed the deadline by 1 day and have submitted evidence of medical certificate at the time of application.
I am a genuine student. My student visa application for subclass 500 got refused as I was unwell and couldn’t attend my college for Orientation, and my college cancelled my COE thinking that I was out of contact without any emails or letters to me. But when I contacted my college after my visa was refused, they gave me another COE to start my class from Jan 2018 intake.
…
In the result the Tribunal in its Decision Record, consistent with the concession of the Applicant and his registered migration agent, found that the Applicant was one day late in lodging his merits review application and that it was therefore invalid. It concluded at [9] of its Decision Record in the following terms:
[9] The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 10 October 2017. Therefore the prescribed period within which the review application could be made ended on 31 October 2017. As the application for review was not received by the Tribunal until 1 November 2017 it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.
Grounds of Attack on Tribunal Decision in this Court
The Applicant relied on two Grounds, being:
1. The Department of Immigration and Border Protection (DIBP) did not consider that due to my illness I could not attend the orientation day. The college cancelled my COE without informing me. There was a procedural error by DIBP.
2. Administrative Appeals Tribunal (AAT) did not take my application for review. I am in the view that the AAT does have discretion to waive 21 days deadline as I had circumstances which were beyond of my control.
I also note that the Applicant relied at the hearing in this Court on his affidavit affirmed on 22 December 2017 which admitted that he had not lodged his merits review application on time.
Consideration
Ground 1
This Ground appears to attack the decision of the Delegate which is a primary decision and which this Court has no jurisdiction to review by force of s.476(2)(a) of the Act.
Accordingly it fails to establish that the Tribunal decision is affected by jurisdictional error.
Ground 2
It is common ground that the merits review application was lodged with the Tribunal by the Applicant one day outside of the required time limit, and for the reasons given by the Tribunal, that is clearly correct. This Ground asserts, in effect, that the Tribunal had a discretion to waive the required 21 day period and today at the hearing the Applicant asserted that the Tribunal could consider an application lodged outside that time limit if there were compelling circumstances.
However, unfortunately for the Applicant, that is not the case. He refers to no authority in support of his assertion and the fact of the matter is that there is no provision in the Act that allows the Tribunal or a Court to override or extend the time limit set by s.347 of the Act or any jurisdiction to entertain an application that was not made within time. As Charlesworth J stated in Calimoso v Minister for Immigration and Border Protection [2016] FCA 1335 at [29]:
[29] The time period in which an application for review must be filed is absolute. The Tribunal has no discretion to extend the time in which an application may be made…
To similar effect, Marshall J in Patel v Minister for Immigration and Citizenship [2012] FCA 145 at [7], in analogous circumstances to the present case, stated as follows:
[7] Section 347 of the Act permits a review of a decision of a delegate to the Tribunal. Under s 338(2) of the Act a decision to refuse to grant a Skilled Visa is reviewable in and by the Tribunal. Section 347(1)(b) provides that an application for a review must be made within the prescribed period. Regulation 4.10 of the Migration Regulations 1994 (Cth) (“the regulations”) prescribes a period of 21 days to bring an application to review a decision referred to in s 338(2) of the Act where, as here, the applicant is not in immigration detention. The Regulations do not provide for an extension of the 21 day time limit, even in special or exceptional circumstances. This appears to be a deliberate choice of the framers of the regulations. An application for review of a delegate’s decision is taken to be given to the Tribunal when it is received at the Tribunal’s registry. The appellants’ application was not received at the Tribunal’s registry until 29 March 2011.
In other words, the filing of an application for merits review with the Tribunal within the prescribed time limit is a prerequisite to the existence of the Tribunal’s jurisdiction: Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407 at 419 [49] – [50] per Dowsett, Finkelstein and Heerey JJ; Vean of 2002 v Minister for Immigration and Indigenous Affairs (2003) 133 FCR 570 at 578 [32] – [33] per Gray, Whitlam and Mansfield JJ.
Accordingly it follows that Ground 2 fails to establish that the decision of the Tribunal suffers from jurisdictional error.
Two Further Matters
This matter was set down for hearing today on 27 April 2018 when procedural orders were made, consented to by the Applicant, to get the matter ready for hearing, and which provided for the Applicant to file and serve any amended application and any further affidavit evidence upon which he intended to rely by 3 August 2018. He did not do so. However, during his address to the Court at the hearing the Applicant suggested for the first time that he was misled by his migration agent who told him that he had 28 days, instead of 21 days, to lodge his application for merits review with the Tribunal. His Grounds make no such allegation.
I pointed out to the Applicant that there was no such allegation made in his affidavit affirmed on 22 December 2017, or in the email of the migration agent to the Tribunal dated 1 November 2017 (see: [10] above)
Further, when invited to comment on the Tribunal’s prima facie view that his application for merits review was too late, in his letter to the Tribunal emailed on 21 November 2017 (see: [11] above), there was no suggestion by the Applicant that the migration agent had misled him. Rather, the purport of the email is quite inconsistent with any such suggestion, because the Applicant said, after having conceded that he was one day late after the “given deadline of 21 days”, that he had been unwell and that he was struggling to organise fees which had to be paid for the merits review application, and that he “could not do anything despite the multiple reminders from my migration agent to lodge it in time”.
This case was commenced as long as December 2017 and in the circumstances I was not prepared to entertain any belated suggestion from the Applicant for the first at the hearing that his migration agent misled him and I would not have been prepared to give any adjournment to the Applicant, even if it had been asked for, which it was not, to allow this case to, in effect, commence again with a completely new and different Ground. Accordingly, I indicated to the Applicant that I would not entertain this belated claim from the Bar table, which is not supported by any admissible evidence.
Further, even if there were to be a finding that the migration agent was negligent, there is no claim of fraud against the migration agent.
The second matter is that the Minister, as a model litigant, in connection with the notification of refusal letter from the Department dated 10 October 2017, raised the recent decision of the Full Court of the Federal Court of Australia in DFQ17 v Minister for Immigration [2019] FCAFC 64 (DFQ17), in which case the cancellation letter under consideration was regarded by the Court as being piecemeal, obscure and incomprehensible in giving the information required to be given to the Applicant and that therefore the relevant time limit for lodging the merits review application had not commenced.
The notification letter in this case is distinguishable from that in DFQ17 and substantially in the form of the notification letter considered by Nicholas J in Ali v Minister for Home Affairs [2019] FCA 1102 in which, relevantly, at [24] – [26] and [29], his Honour stated as follows:
[24] In the present case the Minister has submitted that the Full Court’s decision in DFQ17 is distinguishable. I accept that submission. In my view the facts of this case are different from DFQ17. In DFQ17 Perram J considered that the information as to the time within which the relevant application had to be made in that case was (at [62]) “…piecemeal, entirely obscure and essentially incomprehensible”.
[25] I am bound by DFQ17 and must follow it in so far as it concerns the proper construction of s 66(2)(d) of the Act. It is authority for the proposition that s 66(2)(d)(ii) requires that the relevant information (ie. the time in which the application for review may be made) must be clearly conveyed.
[26] The letter sent to the appellant on 21 April 2017 included the following (at pages 1–2):
Review rights
The decision can be reviewed.
The Department cannot consider your visa application any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision. 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.
You may only seek merits review of this decision with the AAT if you are physically present in Australia at the time this application for merits review is made.
This review period is prescribed in law and an application for merits review may not be accepted after that date.
(emphasis added)
…
[29] A person exercising a reasonable amount of care when reading the letter would understand it to convey that an application for review had to be lodged within 21 calendar days after the date the letter was emailed. In my opinion the letter provided sufficient information to facilitate the timeous lodgement of an application for review: Zhan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 469 at [66].
In my view, the notification letter in this case complied with s.66(2)(d) of the Act and DFQ17 does not establish any jurisdictional error for the purposes of this case.
Conclusion
Being only one day late it is easy to sympathise with the position of the Applicant. However, as I explained to him, in a mass immigration system there have to be cut-off dates and the granting, limiting and determining of legal rights by reference to dates is common in the Australian legal system in many different areas of the law.
The Applicant has failed to establish that the decision of the Tribunal was affected by jurisdictional error and accordingly his Application to this Court is to be dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 25 September 2019
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