Marupudi v Minister for Immigration
[2009] FMCA 592
•25 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MARUPUDI v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 592 |
| MIGRATION – Review of Migration Review Tribunal decision – show cause application filed out of time – refusal of an extension of time. |
| Migration Act 1958 (Cth), s.477 |
| Applicant: | VENKATA RAMANA MARUPUDI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1354 of 2009 |
| Judgment of: | Driver FM |
| Hearing date: | 25 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 25 June 2009 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms N Johnson Sparke Helmore |
INTERLOCUTORY ORDERS
The show cause application filed on 4 June 2009 is dismissed as incompetent.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1354 of 2009
| VENKATA RAMANA MARUPUDI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a show cause application filed on 4 June 2009, seeking review of a decision of the Migration Review Tribunal (“the Tribunal”) signed on 11 February 2008. The Tribunal decided that it did not have jurisdiction in the matter before it. The application has attached to it several documents, one of which is typewritten grounds of appeal that do not have any apparent connection with the decision of the Tribunal. However, in the body of the application, Mr Marupudi has written in handwriting words to the effect that he is the victim of agent fraud and he requests an extension of time for his application to the Court.
Under amendments to s.477 of the Migration Act 1958 (Cth) (“the Migration Act”), which took effect on 15 March 2009, Mr Marupudi had 35 days from the decision of the Tribunal to lodge his show cause application. That period may be extended by the Court in the exercise of discretion. Under transitional provisions enacted at the same time, a decision of the Tribunal which preceded the date of commencement of the amendments is taken to have been made on the date of commencement, namely, 15 March 2009. Accordingly, the present decision of the Tribunal must be taken to have been made on 15 March 2009. Under s.477 as amended, Mr Marupudi had until 20 April 2009 to file his application with the Court. It was not filed until 4 June 2009. He therefore requires an extension of time if his application is to be dealt with.
I received Mr Marupudi's affidavit, which accompanies his application. In that affidavit he states that he received notice of the Tribunal decision on 17 April 2009. As I understand his evidence, he did not receive the Tribunal's notification of its decision dated 11 February 2008, a copy of which is attached to his affidavit, but he did receive, on 17 April 2009, another letter from the Tribunal dated 15 April 2009, in which the Tribunal declined a request to relodge his review application with the Tribunal. I note that the Tribunal included a copy of its decision with the letter dated 15 April 2009.
I have before me as additional evidence the court book filed on 17 June 2009. In addition, Mr Marupudi gave oral evidence. Mr Marupudi's evidence is that he has been disadvantaged by a person named Jason Sinha, who he engaged to make a visa application on his behalf and also to make a review application to the Tribunal. My associate, during the course of the hearing, conducted an internet search, but was unable to identify any migration agent by that name. There is a record of a Mr Madhuri Sinha being a registered migration agent in Western Australia, but he appears to be a different person.
Mr Marupudi's evidence is that he and Mr Sinha collectively completed the review application to the Tribunal, which was lodged on 19 October 2007. Mr Marupudi completed those parts of the application which appear on pages 30 and 31 of the court book and Mr Sinha completed what appears on pages 32, 33, 34 and 35 and part of what appears in a fee‑waiver application, which appears on pages 37 to 44 of the court book. Mr Marupudi concedes writing his name and the date, 18 October 2007, on the document which appears at page 36 of the court book, but denies signing his name. His evidence is that Mr Sinha said he was not to sign the application until he paid $10,000 for Mr Sinha's services. Mr Marupudi says that he did pay that money, although it took him some time to do so. Curiously, the review application was lodged by facsimile with the Tribunal the day after the application was dated by Mr Marupudi.
Mr Marupudi concedes that he gave an out-of-date address in the review application. He denies receiving any of the correspondence from the Tribunal which appears in the court book. The only correspondence from the Tribunal he concedes receiving is the letter dated 15 April 2009. Mr Marupudi conceded, under cross‑examination, that he had little understanding of either the visa application, the review application or the fee‑waiver application; he simply did as instructed by Mr Sinha. He said it was Mr Sinha's idea to give the Tribunal an out-of-date address. He made no objection. He says that he did not authorise Mr Sinha to sign his review application on his behalf, although, when informed later that Mr Sinha had done so, he acquiesced. I proceed on the basis that the review application was ultimately made on behalf of Mr Marupudi, on his authority. It was, therefore, a valid application.
The Tribunal's decision was that it did not have jurisdiction in the matter because the delegate's decision was not reviewable by the Tribunal. There is no reason to doubt the correctness of the Tribunal's decision. I am prepared to accept that Mr Marupudi was disadvantaged by giving an out-of-date address for correspondence to the Tribunal, but that was a difficulty of his own making. It was he who chose to engage the services of Mr Sinha and pay $10,000 for those services without any regard to or understanding of what he was getting for his money. He paid cash and did not require a receipt. In my view, the evidence of Mr Marupudi discloses that he was willing to pay to become part of a process before the Department and the Tribunal, without any real understanding of the nature of that process.
The delay in the filing of the present application is a delay of more than a month. Theoretically, it would have been possible for the show cause application to be lodged within the prescribed period because Mr Marupudi was notified of the Tribunal decision on 17 April 2009 and he has delayed significantly in ultimately making the present application. The reasons for the delay are essentially unexplained. He was aware of the true position before the period for filing the present application expired, but he still delayed in applying to the Court. He complains of agent fraud, but he was left in no doubt as to what the true position was when he received the Tribunal's letter dated 15 April 2009 on 17 April 2009. Further, to the extent that Jason Sinha engaged in improper conduct, in my view, Mr Marupudi was knowingly concerned in that conduct. He does not come to this Court with clean hands.
Having regard to the extent of the delay, the lack of adequate explanation for the delay and the interests of the administration of justice, I am not persuaded that sufficient reason has been advanced for the Court to grant an extension of time. I therefore refuse that request. I will order that the show cause application filed on 4 June 2009 is dismissed as incompetent.
Costs should follow the event. The Minister seeks an order for costs, fixed in the sum of $1,800. That is slightly above scale, but I am satisfied that costs of not less than amount have been reasonably and properly incurred on behalf of the minister, when assessed on a party and party basis. Mr Marupudi claims that he is impecunious but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,800.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 26 June 2009
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