Paudel v Minister for Immigration

[2015] FCCA 1607

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAUDEL v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1607

Catchwords:
MIGRATION – Migration Review Tribunal – Student (Temporary) (Class TU) – jurisdiction of the Tribunal – no jurisdictional error – application dismissed.

PRACTICE AND PROCEDURE – Show cause – application dismissed.

Legislation:  

Migration Act 1958 ss.476
Federal Circuit Court Rules 2001 r.44.12

Applicant: KEDAR PAUDEL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1239 of 2015

Judgment of: Judge Street

Hearing date: 11 June 2015

Date of Last Submission: 11 June 2015

Delivered at: Sydney

Delivered on: 11 June 2015

REPRESENTATION

Solicitors for the Applicant: Mr Kramer

Solicitors for the First Respondent: Mr Elliott
DLA Piper

ORDERS

1. The application be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001.

2. The applicant pay the first respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1239 of 2015

KEDAR PAUDEL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act in respect of a decision of the Tribunal made on 14 April 2015 holding that it did not have jurisdiction to review a decision of the delegate refusing to grant a Student (Temporary) (Class TU), which refusal occurred on 9 February 2015.

2. The Tribunal identified that the application for review had to be made within 28 days after the applicant was notified of the decision.  The Tribunal identified that the applicant had been notified by letter dated 9 February 2015 and despatched by email.  The application for review was lodged on 4 March 2015.  The Tribunal wrote to the applicant on 13 March 2015 identifying the potentially dispositive issue in terms of the want of jurisdiction in the circumstances where the application was not made within the 21 days. 

3. The applicant responded to that invitation by letter dated 27 March 2015 which identified health issues surrounding the failure to comply with the time requirement.  The Tribunal correctly identified that it does not have a discretion in relation to the matter and found that the application was lodged out of time.  The Tribunal did identify that the applicant had sought to advance an explanation concerning his medical problems.  It was in those circumstances that the Tribunal found:

   8. The Tribunal finds that in accordance with r.2.55 of the Regulations, the applicant is taken to have been notified of the decision on 9 February 2015. Therefore the prescribed period within which the review application could be made ended on 2 March 2015. As tl1e application for review was not received by the Tribunal until 4 March 2015 it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

4. The application identifies:

   The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.

5. In this case, the first respondent’s solicitors also notified the applicant by email dated 4 June 2015 that:

   The Minister will seek an immediate show cause hearing and argue that your application raises no arguable case.

6. The grounds identified in the application are as follows:

   1. The Tribunal did not interpret the law correctly.

   2. MRT applied the incorrect law.

7. To the extent that the application identifies an assertion that the Tribunal did not correctly interpret the law, it has no substance. The Tribunal was correct in the finding that it had no jurisdiction.  Equally, the assertion that the Tribunal applied the incorrect law is lacking in substance and the grounds fail to identify any jurisdictional error.

8. Mr Kramer, the solicitor for the applicant, identified that he had only recently received instructions and sought an adjournment.  That adjournment was neither consented to nor opposed, however there is no utility in granting an adjournment in circumstances where the proceedings are clearly doomed to failure.  Mr Kramer sought to identify a potential argument of jurisdictional error relating to his client’s undiagnosed mental condition and in relation to his client’s lack of appreciation of the requirements for lodgement for review.  Mr Kramer also endeavoured to advance an argument relating to the conduct of the migration agent in failing to apply on behalf of the applicant within the relevant timeframe.  None of these arguments had substance.

9. The respondent pointed out that the communication in respect of the notification of the decision had been sent by email to the applicant.  Mr Kramer sought to advance that there was a discretion that may have been the subject of a miscarriage by reason of the medical circumstances.  The Tribunal held that it does not have a discretion and it was in those circumstances that the application was dismissed.  Mr Kramer would be correct in advancing that there was a jurisdictional error if, in fact, there was a discretion.  The Court provided a brief adjournment for Mr Kramer to identify the statutory discretion.  Mr Kramer conceded he could identify no statutory basis for a discretion. 

10. The Tribunal was correct in holding that it had no discretion and, accordingly, there is no jurisdictional error of the kind advanced by Mr Kramer in this case.  Mr Kramer also candidly acknowledged on behalf of his client that his client had received the notification of the decision. 

11. I am satisfied that the application fails to disclose any arguable jurisdictional error and that this is an appropriate case to dismiss under r.44.12. I am satisfied that there would be no utility in granting an adjournment, as the proceedings are clearly doomed to failure, and to do so will only unnecessarily increase the costs to the parties and utilise limited Court time. The application is dismissed under r.44.12.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  15 June 2015