Patel v Minister for Home Affairs
[2018] FCCA 2519
•23 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PATEL v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 2519 |
| Catchwords: MIGRATION – Student visa – Application for judicial review of Administrative Appeals Tribunal decision – where applicant did not provide evidence of financial capacity with his visa application – Applicant lodged application to the Administrative Appeals Tribunal out of time – whether Tribunal had jurisdiction to review the application – no jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.338, 347 ,476, 494C | |
| Migration Regulations 1994 (Cth), reg.4.10, Sch.2 cl500.214 Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324; (2000) 97 FCR 407 | |
| Applicant: | BHAUMIK JITENDRABHAI PATEL |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 613 of 2018 |
| Judgment of: | Judge Baird |
| Hearing date: | 23 August 2018 |
| Date of Last Submission: | 23 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 23 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Kumar |
| Solicitors for the Applicant | Mr S John, Stephen John Lawyers |
| Solicitors for the Respondent: | Ms S Sangha, Mills Oakley |
ORDERS
The application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,400.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 613 of 2018
| BHAUMIK JITENDRABHAI PATEL |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore, Revised from Transcript)
Introduction
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) in which the Applicant, Mr Patel, seeks judicial review of a decision of the Administrative Appeals Tribunal dated 1 March 2018, affirming the decision of a Delegate of the First Respondent, the Minister for Home Affairs, dated 27 November 2017. That decision of the Delegate was to refuse to grant Mr Patel a Student (Temporary) (class TU) (Subclass 500) Visa.
Background facts
Mr Patel, born in 1988, is a citizen of India. On 29 September 2017, he applied for the Visa through an online application form. Mr Patel was assisted by his then migration agent from Honest Immigration Group in preparing the application. At the time of the Visa application, Mr Patel was in Australia and had previously held an Australian student visa.
In his application form submitted online, in answer to a question under the heading “Funding for Stay”, Mr Patel confirmed that he had access to sufficient funds to support himself for the total period of stay in Australia, and that he understands further evidence of funds may also be requested.
In answer to an item on the application form regarding the financial support from an individual on which he is relying, Mr Patel provided the details: “my parents have fund to support my education”, and stated the approximate value of “A$26,000”.
Under the heading “Genuine Temporary Entrant”, the Visa application form stated as follows:
All student visa applicants are required to provide information in support of their application to demonstrate that they meet the Genuine Temporary Entrant criteria.
The form continued as follows, “give details to support the applicant’s ability to meet the criteria and ensure supporting documents are attached.” In response Mr Patel wrote, “I will attache after submit the application.” Under the form’s heading “Supporting Evidence”, in answer to the direction, “Give details as to why the applicant will not be providing attachments prior to lodging this application”, Mr Patel reiterated the same statement.
The Department of Immigration and Border Protection, by letter generated 29 September 2017, acknowledged receipt of the application. In the “Acknowledgement of application received fact sheet” under the heading “Providing Documents” the Acknowledgment facts sheet stated:
The Department may make a decision on your application without requesting additional information. You should provide us with all the information you feel is relevant.
It is not in dispute that Mr Patel did not provide any attachments, nor provide any supporting documents in relation to his claim of having financial support.
The Delegate’s decision
On 27 November 2017, by letter emailed to Mr Patel’s then migration agent, his authorised representative, the Department informed Mr Patel that his Visa application had been refused by the Delegate. The letter stated on its face, under the heading “Review Rights”:
We 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 [the Tribunal] within 21 calendar days after the day on which you are taken to have received this letter.
In his decision, the Delegate referred to cl.500.214 in Schedule 2 of the Migration Regulations 1994 (Cth) and stated that he was not satisfied that the clause was met.
Clause 500.214(3) provides that:
(3) If required to do so by the Minister, in writing or by use of a computer program available online, at any time, the applicant gives to the Minister evidence of financial capacity that satisfies the requirements specified in an instrument under subclause (4).
The Delegate set out the terms of cl.500.214. He then found as follows:
At the time the [A]pplicant lodged their application for this student visa, they were required by the online system, as part of the application process, to provide evidence of financial capacity. Documentation purporting to evidence their financial capacity had not been uploaded at the time of lodgement. There is no evidence of any documentation evidencing financial capacity having been submitted or uploaded up to the time the decision on this application was made. The [A]pplicant has, therefore, failed to satisfy the provisions of subclause 500.214(3) and, therefore, clause 500.214.
Relevant time periods
Pursuant to s.347(1)(b), of the Act and reg.4.10 of the Regulations, an application for review of the Delegate’s decision has to be made within 21 days after the applicant, in the present case Mr Patel, was notified of the Delegate’s decision in accordance with statutory requirements. Pursuant to s.494C of the Act, Mr Patel is taken to be notified of the decision on 27 November 2017.
The Tribunal proceeding and decision
Twenty-one days after 27 November 2017 was 18 December 2017. Mr Patel, however, applied to the Tribunal for review of the Delegate’s decision on 22 December 2017. By letter dated 23 January 2018, the Tribunal put to Mr Patel that his application to the Tribunal was invalid as it was not lodged within the relevant time. The Tribunal invited Mr Patel to comment in writing regarding the Tribunal’s jurisdiction and the validity of the application before it. In response, on 28 February 2018, Mr Patel’s then migration agent, Parish Patience Immigration Lawyers, provided the Tribunal with a statement. In the statement, Mr Patel explained that he was under the impression that he had 28 days to lodge the application for review in the Tribunal. (I interpose to note this is notwithstanding that on the face of the letter sent on behalf of the Delegate to Mr Patel dated 27 November 2017 he was clearly on notice that he had 21 days in which to file his application for review.) Mr Patel requested the Tribunal to “exercise its discretionary power to consider [his] application as a valid application to give [him] a chance to have his student visa to pursue his studies”. He also argued that the Delegate had committed legal error as it failed to provide an opportunity for him to submit financial documents.
On 1 March 2018, the Tribunal found that it did not have jurisdiction to review the Delegate’s decision, as Mr Patel had not lodged his application for review within the 21 days time limit. At [8] of its decision, the Tribunal stated that the matters raised in the Applicant’s [Mr Patel’s] submissions dated 28 February 2018, referring to claimed errors in the assessment of the Mr Patel’s Visa application by the Delegate, are not relevant in the circumstances because the Tribunal has no jurisdiction to review his matter.
On 8 March 2018, Mr Patel applied to this Court for review of the Tribunal’s decision.
Grounds of review
On 15 July 2018, Mr Patel filed an amended application which is before me. Mr Patel, in the amended application, set out 2 grounds as follows (without alterations):
Ground 1
The Tribunal should have found that there was no decision at all as delegate of the First Respondent erred in the construction of Clause 500.214 of the Schedule 2 of the Migration Regulations and thereby no time had commenced for review by the Tribunal. The Tribunal fell into jurisdictional error in stating that it did not have jurisdiction (as owing to jurisdictional error committed by the delegate there was no decision at all in respect of which time could commence).
Particulars
(a) The delegate construed the legislation requiring the Applicant to lodge the evidence of financial capacity with the application.
(b) The Applicant had not lodged the evidence of financial capacity.
(c) The delegate construed Clause 500.214 and in particular Clause 500.214(3) as requiring the Applicant to lodge the evidence of financial capacity at the time of the lodgement. The Tribunal also adopted this.
(d) The cl.500.214 does not specify that the evidence ought to be submitted alt together.
(e) The delegate fell into jurisdictional error.
(f) Owing to jurisdictional errors committed by the delegate there was no decision at all in respect of which time could commence.
(g) The Tribunal thereby fell into jurisdictional error in finding that the application was out of time and that it did not have jurisdiction.
GROUND 2
The Tribunal should have found that the delegate of the First Respondent denied the Applicant procedural fairness and/ or engaged in process or reached conclusions that is irrational or illogical and unreasonable. The decision is affected by jurisdictional error such that there is no decision at all. The Tribunal erred in construing that it had no jurisdiction.
Particulars
(a) The Tribunal should have found that the delegate had misconstrued the legislation requiring the applicant to lodge the evidence of financial capacity at the time of the application. The applicant had not lodged the evidence of financial capacity at the time of the Application.
(b) The lack of evidence of financial capacity was determinative and dispositive issue.
(c) The delegate of the First Respondent did not give the applicant any opportunity to present evidence of financial capacity.
(d) The delegate has been procedurally unfair.
(e) The delegate's construction determination of Clause 500.214 and in particular Clause 500.214(3) as requiring the First Respondent to lodge the evidence of financial capacity at the time of the lodgement is irrational/ illogical and/ or unreasonable. The findings are irrational/ illogical and/or unreasonable.
(f) The cl. 500.214 does not specify that the evidence of financial capacity ought to be submitted all together with the application.
(g) The delegate fell into jurisdictional error.
(h) Owing to jurisdictional errors committed by the delegate there was no decision at all in respect of which time could commence.
(i) The Tribunal thereby fell into jurisdictional error in finding that the application was out chime and that it did not have jurisdiction when in fact there was no decision as the delegate's decision was affected by jurisdictional error.
Part 5 reviewable decision
I have already referred to the requirement that an application to the Tribunal for review of the Delegate’s decision should be applied for within 21 days. Mr Patel lodged his application for the Visa while he was in Australia within the migration zone, and the Visa, if the criteria had been met, is one that could have been granted while Mr Patel was here, in the migration zone. The Delegate’s decision was, therefore, a “Part 5-reviewable decision” under s.338(2) of the Act.
Regulation 4.10 provides, variously, that the period in which an application for review of a Part 5-reviewable decision that must be given to the Tribunal, in the present circumstances, starts when an applicant receives notice of a decision and ends at the end of 21 days after the day in which the notice is received. Before this Court, Mr Patel’s counsel accepted that the application to the Tribunal was out of time.
The jurisdiction of this Court
Pursuant to s.476(4)(b), a “primary decision” is defined to include a privative clause decision that would have been reviewable under Part 5 or 7 of the Act if an application for a review had been made within a specified period. The Delegate’s decision would have been reviewable by the Tribunal under Part 5 of the Act had Mr Patel lodged his application for a merits review within 21 days. Therefore the Delegate’s decision is a “primary decision” pursuant to s.476(4). Section 476(2)(a) provides that this Court, has no jurisdiction in relation to a primary decision as defined in s.476(4). Pursuant to s.476(2)(a), this Court does not have jurisdiction to review the Delegate’s decision in relation to jurisdictional errors.
Before this Court, Mr Kumar, counsel for Mr Patel, emphasised that Mr Patel did not seek that this Court review the Delegate’s decision; that concession was properly made.
Proceeding before this Court and grounds pressed
Mr Patel has been legally represented before me today, as I have said, by Mr Kumar of counsel. For the Minister, Ms Sangha, solicitor, appears. During the course of submissions, Mr Kumar stated that he did not press ground 2, and I put to him that ground 2 overlaps ground 1, and that ground 2 does not otherwise raise matters which Mr Kumar wishes to make submissions on separately.
Ground 1
Ground 1 takes issue with the Delegate’s decision and particularly the Delegate’s construction of cl.500.214 of Schedule 2 to the Regulations. Mr Kumar, for Mr Patel, puts the argument two ways:
(1)first, that there was no requirement that the evidence of financial support, or funds to support Mr Patel be lodged at the time of lodging the application, and that the Delegate erred in construing the cl.500.214 requirement as requiring all documents to be filed at the time of application. Rather, he submitted the legislation requires that an applicant be given time to lodge that information. Mr Kumar submits that the Delegate, and I infer the Department, did not request Mr Patel to provide the information that he had represented he would provide;
(2)secondly, the Delegate erred in denying the Applicant procedural fairness in not telling Mr Patel that he needed to submit additional documents, or, indeed, any documents in relation to his financial capacity. Mr Kumar, thus, puts the matter saying, either that the Delegate misconstrued the requirements of cl.500.214 in reaching his decision, or, alternatively, there was no decision because Mr Patel remained in the process of making his application and that process had not finished.
The grounds, so Ms Sangha respectfully submits, are misconceived, as the filing of an application with the Tribunal within time is a prerequisite to the enlivening of the Tribunal’s jurisdiction. She referred the Court to Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324; (2000) 97 FCR 407 at [52].
Consideration
As to the first way that Mr Kumar puts the ground, that is, on the basis that there was a decision, the Tribunal’s jurisdiction was not enlivened because the application before it was out of time. I will come back to that matter.
As to the second way that Mr Kumar puts ground 1, that there is no decision at all, if that was the case then, again, the Tribunal’s jurisdiction was not enlivened, and it follows that there is no jurisdiction before this Court. That is, either way, this Court does not have jurisdiction.
The Tribunal has the jurisdiction conferred upon it by the Act. If it is given a valid application for review, it must determine that application according to its merits. The Tribunal does not otherwise have jurisdiction. It does not have any jurisdiction when there is no valid application before it.
As the application was out of time, it was not a valid application. The Tribunal did not have any discretion to waive the requirement that an application before it be filed within time in order to be a valid application. There is no provision in the Act that allows the Tribunal to override or extend the prescribed time limit, or to entertain an application that is not made within time. Although referring to a Part 7-reviewable decision, the principles stated by Tracey J in SZIUK v Minister for Immigration and Citizenship [2007] FCA 226 at [12] apply.
As the Tribunal did not have jurisdiction, it follows that this Court does not have jurisdiction. As I have already identified in the proper concession made by Mr Kumar, this Court has no jurisdiction to consider the merits of the Delegate’s decision, and, thus, whether or not the Delegate narrowly or otherwise construed the requirements of cl.500.214 is not a matter that arises in this Court. It thus follows that ground 1 must fail.
Although Mr Kumar has not pressed ground 2, I note that to the extent ground 2 says that the Tribunal should have found the Delegate denied Mr Patel procedural fairness, and the Delegate’s construction of cl.500.214 was irrational, illogical and/or reasonable, this ground must fail for the same reasons. The Tribunal could not consider the merits of an application that it had no jurisdiction to consider. The Tribunal not having jurisdiction, there is nothing before this Court that enlivens its jurisdiction to consider the application before it. It follows that this Court is not the appropriate venue for the ventilation of the concerns that Mr Patel has with the Delegate’s decision, or the process that the Delegate followed.
As I have said, I have concluded that the application must be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Baird
Associate:
Date: 7 September 2018
3
5