Palanchoke v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1978

FEDERAL CIRCUIT COURT OF AUSTRALIA

Palanchoke v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1978

File number:

ADG 203 of 2018

Judgment of:

JUDGE YOUNG

Date of judgment:

11 August 2021

Catchwords:

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) which found that it did not have jurisdiction to deal with the matter – where the applicant failed to lodge the application with the Tribunal within the prescribed time limit – no jurisdictional error made out – application dismissed

Legislation:

Migration Act 1958 (Cth), s 347

Migration Regulations 1994 (Cth), reg 4.10

Number of paragraphs:

8

Date of hearing:

11 August 2021

Place:

Darwin

The First Applicant:

Appearing on her own behalf

Solicitor for the First Respondent:

Ms Calabrese of Australian Government Solicitor

ORDERS

ADG 203 of 2018

BETWEEN:

ARUNA PALANCHOKE

First Applicant

SANJU SHRESTHA

Second Applicant

AARON SHRESTHA

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	11 AUGUST 2021

THE COURT ORDERS THAT:

1.The Application filed on 24 May 2018 is dismissed.

2.The Applicant is to pay the First Respondent’s costs in the fixed sum of $4,500.

3.The First Respondent’s name be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 19 April 2018 which found that it did not have jurisdiction to consider the applicants’ application for review of a decision of the Minister’s delegate (the Delegate) to refuse to grant Student (Temporary) (Class TU) visas (the visas).

2. The grounds of review are not conventional grounds of review and do not constitute allegations of jurisdictional error. That, in itself, would justify dismissal of the application.  However, as the Federal Court of Australia has made clear, where there is an unrepresented person it is appropriate to provide an opportunity to that person to set out any arguments they may wish to make to the Court.  I have afforded Ms Palanchoke that opportunity.  She did not file written submissions and was regrettably unable to address any of the real issues this matter raises.

3. The Applicant told me that she has not sought any legal advice. This is notwithstanding the fact that the initial application was filed more than three years ago. Section 347(1)(b)(i) of the Migration Act 1958 (Cth) (the Act) provides that:

   (1)An Application for review of a Part 5-reviewable decision must:

   ...

   (b) be given to the Tribunal within the prescribed period, being a period ending not later than:

   (i) if the Part 5‑reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—28 days after the notification of the decision

4. I am satisfied this is a decision that is covered by section 347(1)(b)(i) of the Act. The difficulty is the combination of that section which provides that an application for review must be lodged within the prescribed period, being a period not later than 28 days after the notification of the decision and Regulation 4.10(1)(a) of the Migration Regulation 1994 (Cth) which provides that:

   (1)For paragraph 347(1)(b) of the Act, the period in which an application for review of a Part 5-reviewable decision must be given to the Tribunal:

   (a) if the Part 5-reviewable decision is mentioned in subsection 338(2) or (7A) of the Act – starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received

5. The Tribunal’s decision states that the decision of the Delegate was sent to the applicant on 20 February 2018 by email, and under the Act, that satisfies the statutory requirements. The email was sent to an address which is the authorised email address set out by the first applicant in her application for the visas. That being the case, it appears that the notification was sent in accordance with the statutory requirements as the Tribunal observed. The 21 day period, therefore, expired, as the Tribunal member observed, on 13 March 2018 which is 21 days after the applicant received the notice of the decision. The Tribunal’s decision observed that the application was not received by the Tribunal until 27 March 2018. The applicant does not take any issue with those matters; she says that she made a mistake about what the requirements were, and misunderstood the letter advising her of the time period.

6. At the time the applicant was notified of the decision of the Delegate, there was a letter which set out that the review period was 21 calendar days after receiving the letter.  The applicant says that she misunderstood that. She said she was confused by the advice later in the letter which stated that unless she made a valid application for merits review then the bridging visa that she and her family currently had would cease after 35 days.  It is most unfortunate that the letter was not read carefully by the applicant but I am satisfied that the statutory obligations were met by the Minister. 

7. There is nothing in the decision that I can see that constitutes jurisdictional error and the applicant certainly has not been able to point me to anything that would constitute or could constitute jurisdictional error.  It follows that the application must be dismissed. 

8. There will also be an order that the applicant pay the respondent’s costs in the sum of $4,500. 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       25 August 2021