Patel v Minister for Immigration

[2018] FCCA 1871

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATEL v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1871

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – where application before Tribunal was filed out of time – Tribunal found it did not have jurisdiction – where Tribunal referred to wrong regulation – no material difference to correct provision – no jurisdictional error – application dismissed.

Legislation:
Federal Circuit Court Rules 2001 (Cth), r.44.12
Migration Act 1958 (Cth), ss.338, 347, 359A, 424A, 494C
Migration Regulations 1994 (Cth), reg.2.55, 4.101A, Sch.2 cl.602.212, 602.213

Cases cited:
Butt v Minister for Immigration and Border Protection [2014] FCA 1354
SZEYK v Minister for Immigration [2008] FCA 1940
SZULH v Minister for Immigration and Border Protection [2015] FCA 835

Applicant: ANITABEN MANUBHAI PATEL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1349 of 2017

Judgment of: Judge Hartnett

Hearing date: 28 June 2018

Delivered at: Melbourne

Delivered on: 28 June 2018

REPRESENTATION

The Applicant: In Person

Solicitor acting as Counsel for the First Respondent: Ms Groves

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicant pay the costs of the First Respondent fixed in the sum of $3,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1349 of 2017

ANITABEN MANUBHAI PATEL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court this day is an application for judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal (‘the Tribunal’) dated 13 June 2017, in which the Tribunal found it had no jurisdiction in the matter.

2. The grounds of application are as follows:-

   “1. The Tribunal failed to exercise its jurisdiction:

   It was error for the Tribunal to assess the application without allowing the applicant to present her arguments.

   2. My point is that the Tribunal did not make any other attempt to contact me to attend the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application because it does not have jurisdiction in this matter, such information was required to be sent to me written to make comments, in order to fully compliance of section 424A.

   3. The Tribunal fell into jurisdictional error by misinforming itself as to the true nature of the applicant’s evidence and, thereby, incorrectly dealt with the review application.”

   (Errors in original.)

3. The First Respondent seeks dismissal of the application, pursuant to r.44.12 of the Federal Circuit Court Rules 2001 and seeks costs in the sum of $3200.  The First Respondent has filed written submissions, on which the First Respondent relies.  Those submissions were filed on 6 June 2018 and the Applicant confirmed this day that she had read those submissions.  Despite an order being made that the Applicant file and serve written submissions prior to today’s date, the Applicant did not do so.  Nevertheless, the Applicant was given an opportunity to make oral submissions this day.  Before the Court in evidence are the contents of the Court Book filed by the First Respondent and included in those documents is a copy of the Tribunal’s Statement of Decision and Reasons (‘the Decision Record’) of 13 June 2017.

4. The Minister submits the application does not raise an arguable case for the relief claimed.  The Court accepts that to be the case and has this day dismissed the application and made a costs order against the Applicant.  The reasons for doing so follow hereunder.

Background

1. The Applicant is a female citizen of India.

2. On 5 April 2017, the Applicant applied for a Medical Treatment (Visitor) (Class UB) (subclass 602) visa (‘the visa’).  On 10 April 2017 the visa application was refused.  The decision record of a delegate of the First Respondent (‘the delegate’) is before the Court.  The delegate noted that a valid application for a medical treatment visa had been made by the Applicant.  The delegate noted that the visa could not be granted unless the Applicant met the relevant legal requirements specified in the Migration Act 1958 (Cth) (‘the Act’) and Migration Regulations 1994 (Cth) (‘the Regulations’) and, in particular, cl.602.213 of Schedule 2 to the Regulations which the delegate found the Applicant had not met on the day the delegate made her decision.

3. The delegate noted that departmental records confirmed the Applicant’s last substantive visa (TU 572) ceased on 1 December 2011, being more than 28 days prior to the date on which the Applicant made application for a medical treatment visa, being 4 April 2017. Clause 602.213(5) of Schedule 2 to the Regulations was applicable because of sub-cl.602.213(3), as the Applicant was in Australia at the time of the application, did not hold a substantive temporary visa at that time and did not meet the requirements of sub-cl.602.212(6).

4. On 19 May 2017 the Applicant applied to the Tribunal for review of the decision of the delegate.

5. On 23 May 2017 the Tribunal wrote to the Applicant, inviting her to comment on the validity of her application for review.  That correspondence to the Applicant, from the Tribunal, said relevantly:-

   “I am of the view that your application is not a valid application as it was not lodged within the relevant time limit.  The time limit is 21 days from the day on which you are taken to have been notified of the primary decision.  The primary decision was emailed to you on 10 April 2017 and, on the basis that 10 April 2017 was the date on which you are taken to have been notified, the last day for lodging the application for review is 1 May 2017.  As the application was not received until 19 May 2017, it appears to be out of time.  However, this is matter which must be determined by a Member.

   I am further of the view that your application is not a valid application, as the application fee has not been paid.  In order to have a valid application, payment of the application fee needs to be made before the expiry of the time limit for lodging the application.  On 22 May 2017, we attempted to take payment of the reduced application fee using the credit card details you provided with your application form.  Please note that this payment was not approved (see attached application receipt) so payment is not considered to have been made. However, this is also a matter which must be determined by a Member.

   If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 6 June 2017.  Your application, with any comments you make, will then be referred to a member to make a decision on your application.  If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.”

6. The Applicant provided no response to the correspondence of the Tribunal of 23 May 2017.

7. In a decision dated 13 June 2017 the Tribunal found that the Applicant was notified of the delegate’s decision, in accordance with the statutory requirements, by letter dated 10 April 2017, which was dispatched by email.

8. The Tribunal found that, in accordance with reg.2.55 of the Regulations, the Applicant was deemed to have been notified of the decision on 10 April 2017, and the prescribed period in which the Applicant could have made an application to the Tribunal ended on 1 May 2017. The Tribunal concluded that, as the application for review was not lodged with the Tribunal until 19 May 2017, it was out of time and that the Tribunal did not have jurisdiction to review the matter.

Consideration

1. When read together, s.347(1)(b)(i) of the Act, and reg.4.101A of the Regulations provide that a Part 5 of the Act reviewable decision, covered by s.338(2) of the Act must be made by the end of 21 days after the day on which notice of the decision is received. This requirement was correctly identified by the Tribunal in paragraph 3 of the Decision Record.

2. On the evidence before it, it was open to the Tribunal to conclude that notice of the delegate’s decision was sent to the Applicant by email. Under s.494C(5) of the Act, the Applicant is deemed to have received the document at the end of the day on which the document was transmitted.

3. As submitted by the First Respondent, although the Tribunal mistakenly referred, in paragraph 6 of the Decision Record, to reg.2.55 of the Regulations instead of s.494C(5) of the Act, the Tribunal correctly concluded that the application was lodged with the Tribunal more than 21 days after the day on which notice of the decision was deemed to be received and that the application was out of time. As is often said in cases of this type, it is well-established that a review application received outside the prescribed time limit is invalid and one that the Tribunal does not have jurisdiction to review.[1] 

   [1] SZULH v Minister for Immigration and Border Protection [2015] FCA 835, 17.

4. Further, as submitted by the First Respondent, although the Tribunal wrongly referred to reg.2.55 of the Regulations, that error was immaterial, as there was no material difference between the two provisions, which impose the same time limits and contained the same deeming provisions. In Butt v Minister for Immigration and Border Protection [2014] FCA 1354 at [27], Mortimer J found no jurisdictional error, despite the Tribunal incorrectly referring to s.494C of the Act rather than reg.2.55 of the Regulations.

5. The Applicant’s grounds of review are not arguable. The Tribunal understood the legislative framework and correctly dealt with the Applicant’s review application. Only where the Tribunal has jurisdiction, as part of its conduct of the review, is the Tribunal required to comply with Division 5 of Part 5 of the Act. Where the Tribunal does not have jurisdiction, it is not required to comply with s.359A of the Act, which is analogous to s.424A of the Act.[2] Even were s.359A of the Act to be engaged, the Tribunal gave clear particulars to the Applicant sufficient to discharge any potential obligation under s.359A of the Act or any obligation at common law to afford the Applicant procedural fairness in the communication from the Tribunal to the Applicant of 23 May 2017.

   [2] SZEYK v Minister for Immigration [2008] FCA 1940 at 33-34, 40.

6. There being no arguable case for the relief claimed, the Court has dismissed the application, with costs.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  13 July 2018