Patel v Minister for Immigration
[2011] FMCA 931
•31 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PATEL v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 931 |
| MIGRATION – Application for review of decision of Migration Review Tribunal – application to review delegation decision was itself out of time – alleged jurisdictional error by Migration Review Tribunal in not allowing review – application refused. |
| Migration Act 1958, s.476 |
| Craig v The State of South Australia [1995] HCA 58 Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 |
| Applicant: | MANISH KUMAR PATEL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | ADG 202 of 2011 |
| Judgment of: | Lindsay FM |
| Hearing date: | 31 October 2011 |
| Date of Last Submission: | 31 October 2011 |
| Delivered at: | Adelaide |
| Delivered on: | 31 October 2011 |
REPRESENTATION
| The Applicants | In person |
| Counsel for the Respondents: | Mr Prince |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The time to institute proceedings for review pursuant to s.477 of the Migration Act 1958 is extended so as to allow the application to have been filed on 4 August 2011.
The application for review filed on 4 August 2011 is refused.
The Applicants pay the Respondents’ costs of and incidental to the proceedings fixed in the sum of Six Thousand Two Hundred and Forty Dollars [$6,240.00].
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 202 of 2011
| MANISH KUMAR PATEL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application to the Court under section 476 of the Migration Act 1958 (“the Act”). The first point that arises is the application to this Court is itself out of time by about a month, but in the light of the concession made in the first respondent’s Outline of Submissions that there was no prejudice to the Minister if the extension of time were granted, pursuant to section 477 I propose to allow that extension of time and there will be an order extending the time for the institution of this application for review under section 477 of the Act so as to allow the application to have been filed on 4 August 2011.
The substantive application is, as I say, one made pursuant to section 476 of the Act. It is in respect of a decision of the Migration Review Tribunal of 9 June 2011. In order to succeed on this application, it is necessary for the applicants to demonstrate that the decision was made in excess of or for want of jurisdiction; in other words, that there is some jurisdictional error associated with the decision. Jurisdictional error is a concept that has been explained on many occasions by the High Court, most notably in Craig v The State of South Australia [1995] HCA 58, but especially in the context of decisions under the Migration Act in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476.
It is difficult to know what jurisdictional error the applicants are pointing to in the way in which the Tribunal reached its decision. The circumstances of the decision were that the application to the Migration Review Tribunal arose from a decision of the delegate of the Minister to refuse to grant the applicants’ application for a Skilled (Class VB) visa. The decision of the delegate was made on 4 August 2010 and notification of the decision was given to the applicants by email on 4 August. I do not understand the applicants to have suggested before the Tribunal and they do not suggest to me today that they did not receive notification of the decision on that date. Notwithstanding that, they did not apply for a review of the delegate’s decision until
29 March 2011.
The Act required the application for review of the delegate’s decision to be lodged with the Tribunal within 21 days of the receipt of the notice, so that would have been by on or before 25 August 2010.
So the application was lodged a little over seven months out of time. There is no provision in the Act for an extension of time in respect of an application to review in the Tribunal the delegate’s decision. That circumstance, the fact that there was no application properly before the Tribunal - was specifically brought to the attention of the applicants and they filed a brief written submission in relation to it which appears at page 43 of the Court Book and in that document they set out essentially what they put to me today.
He tries to explain that the late lodgement of the application to the Tribunal arose because of the circumstance that their student visa was cancelled at or about the same time as this visa application was refused (or within a week in any event) - that they say they lodged with the department an application to review both decisions at the same time. Doing the best as I can to understand the information they are now putting before me, they understood at first that their student visa application was successful, but have subsequently ascertained that it has not been and that in order to be able to promote their application for a visa in this case, they must have that student visa. That is doing the best I can to understand the assertions that are being made to me that the problem arose from them filing the one review, but even accepting that that did happen, it was not explained to the Tribunal and it is not explained to me today how that resulted in his application to the Tribunal being seven months out of time. It is not as if there is any written explanation that has been provided in relation to this or any documents being produced. In any event I am positing there the possibility that what they put to me today, that which in addition to that which was put before the Tribunal, would enable me to find that the decision of the Tribunal was attended by jurisdictional error.
This is not an opportunity to reargue or revisit the exercise of a decision on the merits of the application, it is much more than that, and I am not able to apprehend in the material that is set out in the written response to these matters having been brought to his attention, that is the document at page 43, anything that goes any way to establishing an error on the part of the Tribunal, let alone a jurisdictional error and there is nothing that has been put to me today in addition which persuades me that there has been an error, let alone a jurisdictional error, associated with the way the Tribunal dealt with the application.
The Tribunal, it seems to me, has scrupulously described the various provisions of the Act and the Regulations made under that Act which were relevant to the question of time; in particular there was a careful discussion of matters relating to the mode of notification of the decision, the calculation of the time that ran and the time at which the applicants were taken to have been given the notification and importantly the absence of any provision in the Act for an extension of time for the bringing of the application.
The Tribunal appears to have dealt with the application in accordance with those provisions of the Act and of the Regulations and in those circumstances I am not satisfied that its decision is vitiated by any kind of jurisdictional error. For those reasons the application will be dismissed.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Date: 25 November 2011
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