Mehta v Minister for Immigration

[2016] FCCA 1502

FEDERAL CIRCUIT COURT OF AUSTRALIA

MEHTA & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1502

Catchwords:
MIGRATION – Administrative review– Visa – student visa –no jurisdictional error established – application dismissed – costs awarded.

Legislation:

Migration Act 1958 (Cth): s.347(1)(b)
Migration Regulations 1994 (Cth) reg.4.10

First Applicant: HETALBEN VIJAYKUMAR MEHTA

Second Applicant: NARESHKUMAR VELJIBHAI CHAUDHARY

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 108 of 2016

Judgment of: Judge Vasta

Hearing date: 15 June 2016

Date of Last Submission: 15 June 2016

Delivered at: Brisbane

Delivered on: 15 June 2016

REPRESENTATION

The Applicant appearing on her own behalf

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the Application filed 8 February 2016 be dismissed.

2. That the Applicant pay the First Respondent’s costs fixed in the amount of $7,206.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 108 of 2016

HETALBEN VIJAYKUMAR MEHTA

First Applicant

And

NARESHKUMAR VELJIBHAI CHAUDHARY

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed on 8 February 2016 the Applicant comes to this Court seeking a review of a decision of the Administrative Appeals Tribunal.  That Tribunal made a decision on 19 January 2016 that it did not have jurisdiction to look into a review of the decision of the delegate of the Minister. 

2. The background facts, in short compass, are that the Applicant was here on a student visa.  For a number of reasons, the Minister found that there were grounds to consider cancelling that visa.  The Minister contacted the Applicant via email and sent the notice.

3. On 16 September 2015, the Minister decided to cancel the Applicant’s student visa. That meant that, pursuant to s.347(1)(b) of the Migration Act 1958 (Cth) (“the Act”) and r.4.10 of the Migration Regulations 1994 (Cth), an application for review of that decision of the Minister had to be made within seven working days after the Applicant was notified of the decision.

4. As a result of the notice being sent by email on 16 September 2015 that meant that the Applicant was deemed to have been told of what the decision was on that day, 16 September 2015.  Therefore, the Applicant had until 25 September 2015 to lodge with the Tribunal an application for review.

5. The review application was lodged on 22 October 2015, which, as the Minister here has pointed out, was 19 working days late. The Act does not allow for the Administrative Appeals Tribunal to have, in any way, a discretionary power to extend the time in the regulations or even in the Act. It is quite prescriptive about that aspect. Whilst the Tribunal, as it were, made its decision that it did not have jurisdiction, the Applicant comes to this Court having three grounds of application:

Ground One, Two and Three

1. The grounds are set out as follows:

   “1. PROCEDURAL IMPROPRIETY:  BIAS.  IT IS ALLEGED THAT THERE WAS APPARENT BIAS IN THE DECISION OF THE DECISION MAKER.  DEPARTMENT DID NOT SEND ME NOICC (sic) IN RELATION TO VISA CANCELLATION. 

   2. PROCEDURAL FAIRNESS:  THE TRIBUNAL DIDN’T VALIDATE MY APPLICATION STATING THAT IT WAS NOT LODGED IN DUE TIME WHERE AS I HAVE NEVER RECEIVED MY VISA CANCELLATION DUE TO WHICH I CAN’T LODGE MY VISA APPLICATION IN TIME. 

   3. ERROR OF LAW:  E-MAIL ADDRESS IN DIBP SYSTEM WAS CORRECT BUT THEY NEVER SEND ME A NOTICE OF INTENTION TO CONSIDER CANCELLATION OR VISA CANCELLATION DECISION RECORD.”

2. The material that has been provided in the green book does, in fact, show that the emails were sent.  They were not returned.  They did not bounce back, and there is no reason to believe that they were not delivered to the inbox.  The applicant sent a further submission, which reads:

   “Myself Hetal Mehta. I came to Australia in April 2014 on student visa for my higher education study.  I was suppose to start my university in March 2015, but unfortunately I wasn’t able to start Uni on time as mother was passed away in December 2014, and she was the only in my family.  It was a big shock for me to lost my mother. 

   I was in shock and so depressed for months and that’s the only reason I wasn’t able to concentrate on anything not even in my life or study.  I wasn’t talk to anybody or able to think about anything. 

   My husband’s mother was fell down and doctors said she need to go under surgery and that time his passport was expired so we applied for the new passport and we did not received after a month so we rang to immigration department to find out. And the informed us about our student visa cancellation.  They also informed us about the mail, which they sent on my email I’d. 

   I know the immigration department sent me mail on my e-mail address but that time I was under depression and totally wasn’t aware of myself what I am doing and why?  May be that’s the only reason about I did not check my mail. 

   From my school time I’m a ranker student and I love to study and that’s the only reason I came here, but I was under that situation that I didn’t concentrate on my study.  Even I lost my Uni fees.  My mom’s death was a big shock, and thinking of that she isn’t anymore with me, made me depressed.

   I’m only requesting that you give me a one chance to study again. 

   Thank you.

   HETALBEN VIJAYKUMAR MEHTA” (typos in original text)

3. That submission is an acknowledgment that the Applicant did receive the email, which does corroborate what is already in the departmental information filed in this Court. 

4. What the applicant seems to be doing is saying that there was not full consideration given by the Tribunal to her circumstances.  Firstly, that material was not before the Tribunal and so could not be now the subject of criticism, but, secondly, even if that material were before the Tribunal, it really was quite irrelevant. 

5. What the Applicant is doing, and has repeated in this Court, is asking for a judgment of sympathy or mercy to, as it were, ignore what the law says and give her a second chance because she had not seen her email.

6. Whilst a lot of what she says is something that is quite unfortunate, and one would have to be heartless not to feel sympathy for the situation that the Applicant finds herself in, the fact is that the law is the law, and the regulations are, in effect, “sudden death”.  If the application is not lodged within seven days, then that is it.  It cannot then be considered by the Administrative Appeals Tribunal. 

7. I find that there has been no jurisdictional error made by the Administrative Appeals Tribunal.  I therefore dismiss the application with costs.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 20 June 2016