Naqvi v Minister for Immigration
[2016] FCCA 2891
•8 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NAQVI v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2891 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision that it lacked jurisdiction due to the late lodgement of the review application – interlocutory dismissal of show cause application as incompetent – no relief sought in the application. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth) ss.347, 476, 477, 494D |
| Cases cited: Kankaew v Minister for Immigration & Anor [2014] FCCA 2335 WZAQB v the Minister for Immigration [2012] FMCA 688 |
| Applicant: | SYED ALI FAIZAN NAQVI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 693 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 8 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 8 November 2016 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms S Sangha of Mills Oakley Lawyers |
INTERLOCUTORY ORDERS
The application filed on 24 March 2016 is dismissed as incompetent.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 693 of 2016
| SYED ALI FAIZAN NAQVI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a show cause application filed 24 March 2016, seeking the review of a decision of the Administrative Appeals Tribunal (Tribunal), made on 25 February 2016. The Tribunal found that it lacked jurisdiction in the matter before it because the review application was made late. The applicant, Mr Naqvi, in his application to the Court, sought an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) (Migration Act). That application was not necessary as the show cause application was filed within 35 days of the decision of the Tribunal.
There is, however, a fundamental problem with the application. That problem is that Mr Naqvi’s application does not seek any orders. He has not sought a constitutional writ or an injunction. In the circumstances, the application fails to properly invoke the jurisdiction of the court under s.476 of the Migration Act and the application is incompetent, as is noted in the Minister’s submissions. On that basis alone, the application should be dismissed by reference to the authority in WZAQB v the Minister for Immigration (2012) FMCA 688 at [28] to [33].
The incompetence of the application could have been cured by amendment. Procedural orders were made by Registrar Morgan on 5 May 2016. Those orders provided Mr Naqvi with the opportunity to file and serve an amended application giving complete particulars of each ground of review advanced by 23 June 2016. That opportunity was not exercised by Mr Naqvi. I find that the application is incompetent and should be dismissed. However, in case I am wrong in that conclusion, I will proceed to consider whether the application raises an arguable case for the relief which might, hypothetically, have been sought.
Background facts relating to Mr Naqvi’s visa application and the decision of the Tribunal on it are set out in the Minister’s outline of legal submissions, filed on 20 September 2016.
Background
Mr Naqvi is a citizen of Pakistan, who applied onshore for a Student (Temporary) (Class TU) visa on 17 July 2015.[1] In his visa application form, Mr Naqvi agreed to the Department communicating with him by fax, email or other electronic means and provided the email address: [email protected].[2] In his visa application form, Mr Naqvi answered “No” to the following questions in the character declaration.[3]
[1] Court Book (CB) 1-8
[2] CB 3
[3] CB 5
Has any applicant ever been charged with any offence that is currently awaiting legal action?
Has any applicant ever been convicted of an offence in any country (including any conviction which his now removed from official records?)
Has any applicant ever been the subject of an arrest warrant or Interpol notice?
Mr Naqvi also answered “Yes” to a declaration in the following terms:[4]
I understand that if any fraudulent documents or false or misleading information has been provided with this application or if I fail to satisfy the Minister of my identity my application may be refused and I, and any member of my family unit, may become unable to be granted a visa for a specific period of time
[4] CB 6
On 3 August 2015, Mr Naqvi was invited to comment on adverse information in relation to his criminal record.[5] Specifically, the Department received information that Mr Naqvi had been charged with the following offences following an incident on 13 December 2014:
Drive low range prescribed concentration of alcohol and reckless driving (charge reference number H57236263),
Drive low range prescribed concentration of alcohol and reckless driving (charge reference number H57076721)
Drive mid range prescribed concentration of alcohol, use unregistered vehicle and drive while disqualified (charge reference number H58455963).
The case was heard on 28 May 2015 at Burwood Local Court and Mr Naqvi was convicted. A warrant has been issued for his arrest as he failed to attend Court.
[5] CB 19-23
On 27 August 2015, the Department received submissions and supporting documents on behalf of Mr Naqvi, from Mr Chaudhry at MLC Lawyers.[6] Mr Naqvi submitted that he was drinking excessively due to personal reasons including the breakdown of his relationship with a long term girlfriend, health of his mother and unemployment. He submitted that he was unable to attend Court because he was in Pakistan attending to his sick mother, and did not attend Court in May because he did not realise there were proceedings against him. Mr Naqvi submitted that he was genuinely mistaken when he made the declaration and that he had enrolled in a drug and rehabilitation course. He stated that he established a business with a partner 1Ten Business Services and sought an opportunity to study and contribute to Australia’s economy.[7] There was no request for Mr Chaudhry to be appointed as Mr Naqvi’s migration agent in connection with the application in accordance with s.494D of the Migration Act.
[6] CB 26-37
[7] CB 26-27
On 10 December 2015, the delegate of the Minister (delegate) refused to grant the visa.[8] The notification of decision letter and attachments were sent to Mr Naqvi by email to [email protected] on 11 December 2015.[9] The delegate found that Mr Naqvi did not satisfy cl 573.224 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Migration Regulations) as Mr Naqvi made a false declaration in his student visa application in relation to his criminal history and did not meet Public Interest Criterion 4020 in Schedule 4 to the Migration Regulations.[10]
[8] CB 42-48
[9] CB 38; Affidavit of Sharon Manpreet Sangha affirmed on 19 September 2016
[10] CB 47-48
The Tribunal’s decision
On 6 January 2016, Mr Naqvi applied to the Tribunal for review.[11]
[11] CB 51-52
On 7 January 2016, Mr Naqvi emailed the Tribunal and said that he lodged his application for review but was not sure whether he had 21 or 28 days, and whether those days were working or calendar days, and that he did not have a chance to “check it on holidays” because his iPhone was broken.[12] He repeated his submission to the delegate that he was not aware of the Court notice because he was overseas and sought an opportunity to complete his studies.[13]
[12] CB 57
[13] CB 57
By letter dated 20 January 2016, the Tribunal wrote to Mr Naqvi and invited him to comment on the validity of his application.[14] The Tribunal noted as Mr Naqvi was notified of the delegate’s decision on 10 December 2015, the last day for lodging his application for review was 31 December 2015 but his application was not made until 6 January 2016.[15]
[14] CB 59-60
[15] CB 59-60
On 3 February 2016, Mr Naqvi responded by email and repeated his earlier explanations for his delay in lodging his application.
On 26 February 2016, the Tribunal found it had no jurisdiction to review the delegate’s decision as the application for review was not made within the prescribed period. Pursuant to s.347(1)(b) of the Migration Act and regulation 4.10 of the Migration Regulations, the Tribunal found that an application for review must be filed within 21 days of the day that Mr Naqvi is notified of the delegate’s decision.[16] The Tribunal found that Mr Naqvi was notified of the delegate’s decision by a letter dated 10 December 2015 transmitted to him by email.[17] The Tribunal was satisfied that Mr Naqvi was notified of the decision in accordance with the statutory requirements.[18] The Tribunal found that the 21 day period in which Mr Naqvi could validly lodge an application for review to the Tribunal ended on 31 December 2015.[19] However, as Mr Naqvi did not lodge the application until 6 January 2016, the Tribunal found that it did not have jurisdiction in the matter.[20]
[16] CB 66 [3]
[17] CB 66 [4]
[18] CB 66 [4]
[19] CB 51 [5]
[20] CB 51 [5]
The Tribunal did not have any discretion to waive or extend the prescribed period.[21]
[21] Kankaew v Minister for Immigration & Anor [2014] FCCA 2335 at [35]
Present Proceedings
I have before me as evidence two affidavits and the court book filed on 26 May 2016. The two affidavits are an affidavit made by Mr Naqvi and accompanying his show cause application and an affidavit by the Minister’s solicitor which introduces documents bearing upon the notification of the delegate’s decision to Mr Naqvi.
Only the Minister prepared written submissions in accordance with the Registrar’s procedural orders. I invited oral submissions from Mr Naqvi this morning. He sought to explain his delay in seeking review before the Tribunal. He conceded, however, that he was a few days late in lodging his review application with the Tribunal. Unfortunately for Mr Naqvi, his reasons for being late are not material. It is the fact of being out of time that prevented the Tribunal dealing with the review application and that fact is not in dispute.
For that reason, the show cause application must fail. The Minister’s submissions otherwise deal with the grounds raised in the show cause application. There are four grounds which are dealt with in the Minister’s submissions which I adopt.
Ground one states that the reason for the visa refusal was a “huge mistake”, that Mr Naqvi was not aware of the Court notice because he was overseas. These complaints were made to the delegate in response to the invitation to comment letter. To the extent that Mr Naqvi seeks review of the refusal of his Student visa, the Court has no jurisdiction to review the delegate’s decision.[22]
[22] Migration Act s.476(2)(a)
Ground two states that “everything is cleared under my name” and that the applicant is undertaking a Community Services Order. Ground three states that the applicant wishes to complete his studies because he has been studying “for a long time” and does not want to “quit” without completing his studies. Ground four makes a request for the Court to “review [his] application”. These grounds do not allege any error in relation to the Tribunal decision and plainly seek impermissible merits review.
Conclusion
I conclude that the application fails to identify any arguable case of jurisdictional error in the Tribunal’s approach or its decision. Accordingly, if the application had been competent, I would have dismissed it pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale. Mr Naqvi indicated that he may require time to pay, but he did not oppose the making of costs order.
I will order Mr Naqvi to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,60 6 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 14 November 2016
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