PRASAD v Minister for Immigration

[2016] FCCA 1552

FEDERAL CIRCUIT COURT OF AUSTRALIA

PRASAD v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1552

Catchwords:
MIGRATION – Application to extend time in which application for judicial review may be made – whether explanation for delay adequate – whether substantive case arguable – explanation for delay not adequate – substantive case not arguable – not in interests of administration of justice to grant extension of time – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.360, 360A, 379A, 379C, 477

Migration Regulations 1994, cl.572.235 of sch.2, Condition 8202(2) of sch.8

Cases cited:

Hunter Valley Developments Pty Ltd & Ors v Minister for Home Affairs and Environment (1984) 3 FCR 344

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391
Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189
SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146

Applicant: MANASA PRASAD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 985 of 2014

Judgment of: Judge Jones

Hearing date: 16 May 2016

Date of Last Submission: 16 May 2016

Delivered at: Melbourne

Delivered on: 24 June 2016

REPRESENTATION

Counsel for the Applicant: Self-represented

Counsel for the Respondents: Ms McInnes

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The name of the Second Respondent be amended to the ‘Administrative Appeals Tribunal’.

2. The application for an extension of time, pursuant to s.477(2) of the Migration Act 1958, is refused.

3. The Applicant pay the First Respondent’s costs fixed in the sum of $5,452.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 985 of 2014

MANASA PRASAD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This decision is in relation to an application for judicial review of the then Migration Review Tribunal (“the Tribunal”) dated 11 February 2014, affirming a decision of a delegate of the Minister for Immigration and Border Protection (“the delegate”) to refuse to grant the Applicant a Student (Temporary) (Class TU) visa (“the visa”).

2. The Applicant filed her application for judicial review on 26 May 2014. Section 477(1) of the Migration Act 1958 (“the Act”) relevantly provides, that an application to this Court for judicial review of a decision of the Tribunal “must be made to the Court within 35 days of the date of the migration decision”.

3. The Applicant’s application was filed more than two months after the time limit prescribed in s.477(1) of the Act. Sub-section 477(2) of the Act provides that:

   “The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

   (a)  an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b)  the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.”

4. In the Applicant’s application for judicial review, the Applicant stated that the reasons she sought an extension of time were that, “I now wish to seek a review of the MRT decision with an extension of time.  I changed my postal address. Because of that, I did not receive the MRT decision on time on (sic) my new postal address, hence there was a delay in lodging the application.”

5. Consequently, I am satisfied the Applicant has satisfied s.477(2)(a) of the Act. I now turn to consider whether I am satisfied that it is in the interests of the administration of justice to extend the period in which the Applicant may make her application. In considering whether to extend the time for making the application, the Court has a broad discretion. The matters which are generally considered as relevant are, firstly, the extent of the delay, secondly, the explanation for the delay, thirdly, the prejudice to the Respondent if the Court were to grant an extension and, finally, the merits of the application, in the sense of whether the substantive application for judicial review raises an arguable case: Hunter Valley Developments Pty Ltd & Ors v Minister for Home Affairs and Environment (1984) 3 FCR 344 at [348] to [349].

6. I should note that the First Respondent accepts that the delay has been limited, and that the prejudice to the First Respondent, if the application for an extension of time were granted, is also limited.  However, the First Respondent submits that the Applicant’s explanation for the delay – that she had changed her address and did not receive a decision – does not warrant an extension of time. Further, the First Respondent argues that the substantive application has no merit, and there would be limited utility in granting an extension of time.

7. Turning to the first question, which is the explanation for the delay, at the first hearing of this matter, the Applicant claimed that an unnamed person, who was acting on her behalf, failed to pass on her new postal address to the Tribunal. The first hearing of this matter was held on 21 April 2015, and the hearing was adjourned to 16 May 2016, because of particular matters that the Applicant raised in relation to a substantive case. I granted the Applicant leave to file an affidavit on 16 May 2016, being the day of the adjourned hearing. From that affidavit – which I will come to in some detail – the person who the Applicant said did not pass on her new postal address to the Tribunal was a Ms Duti Singh, from an organisation called Career Education Consultancy Australia Pty Ltd (“CECA”).

8. I should note here that the Applicant did not, either in her application for the visa, nor in an application for review by the Tribunal, indicate that she was being represented. Consequently, if the Applicant was represented, then it was by a person off the record. It is relevant to note that the Applicant, in her application to the Tribunal for review of the delegate’s decision, gave her postal address as St Albans, Victoria, 3021 (“the St Albans address”), as the postal address which the Tribunal should send its correspondence (CB 44).

9. I note here for completeness, that in her application, in Part F, dealing with representative details, question 21 asks (CB 49):

   “Do you want to appoint a representative to act on your behalf and to be your authorised recipient?” 

   The Applicant ticked the box marked “No”.

10. The Tribunal decision was sent to the Applicant at the St Albans address. I should note that the Applicant informs the Court that she received an acknowledgement of her application for review by the Tribunal, dated 11 February 2013 (CB 54 to 55), which was addressed to her at the St Albans address, in which the Tribunal said to the Applicant that it was important that she:

    “Tell the tribunal immediately if you change your contact details (such as your residential address, mailing address, telephone number, fax number or email address). If you have a representative, or authorised recipient, it is also important that you inform them of any changes in your contact details.  If you do not, you might not receive an invitation to a hearing or other important information and your case may be decided without notice.”

11. The Applicant says that she passed on her new residential address to Ms Singh from CECA, however, Ms Singh did not pass it on to the Tribunal. For reasons which I will come to shortly, the Applicant can be said to have received the Tribunal decision, because although her case is that her details were not updated by the third party that she utilised, the Tribunal itself complied with the methods of service of documents prescribed under s.379A of the Act. This section sets out the methods by which the Tribunal gives documents to a person other than the Secretary. The Tribunal sent the Applicant its decision to the last address for service provided to the Tribunal by the recipient, and, pursuant to s.379C of the Act, the Applicant was taken to have received the decision.

12. Consequently, I agree that the Applicant’s explanation for the delay in applying for judicial review, which is not lengthy, is not an adequate explanation, given the notice provisions under the Act. I accept that there is no prejudice occasioned to the First Respondent by the delay.

13. I now turn to consider the second question, being whether the Applicant’s grounds of review raise an arguable case. 

14. The First Respondent has drawn the Court’s attention to a decision of Mortimer J in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 (“MZABP”), where her Honour, in considering an extension application under s.477(2) of the Act, observed at [62]:

    “… it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the considerable additional resources expended by the parties and the court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. …” 

15. The Minister also drew the Court’s attention to the observations by Mortimer J in MZABP, in which she observed that this Court was not to engage in a detailed consideration of the Applicant’s case, but to consider the grounds for judicial review at a reasonably impressionistic level, to ascertain whether the Applicant’s grounds for judicial review were sufficiently arguable.

16. By way of background, the Applicant had applied for a Subclass 572 visa (“the visa”). She was required, amongst other things, to meet cl.572.235 of sch.2 to the Migration Regulations 1994 (“the Regulations”) pursuant to which she was required, at the time of decision, to have substantially complied with the conditions of the last visa.

17. The Applicant’s last substantive visa was a Subclass 572 visa, and a Condition applicable to this visa was Condition 8202(2) of sch.8 to the Regulations, which in its terms required the Applicant to be enrolled in a registered course. There was no dispute that the Applicant was not enrolled in a registered course between 4 August 2011 and 16 July 2012, during which time she was overseas from 16 May 2012 to 22 June 2012.

18. Consequently, the Tribunal found that the Applicant did not maintain enrolment in a registered course in Australia for approximately 10 months (CB 67 at [18]).

19. It is appropriate to refer to the proceedings leading up to the Tribunal hearing, as it bears on a consideration of the grounds of review specified by the Applicant in this matter. 

20. The Tribunal notes that the Applicant applied for a review of the delegate’s decision on 8 February 2013, and that by correspondence dated 11 February 2013, the Applicant was invited to provide any material or written argument she wished the Tribunal to consider, as soon as possible (CB 65, [6] to [7]).

21. I should note that the Applicant informed the Court that she received this correspondence, which was sent to her address, as specified on her application (CB 54). The Tribunal noted it did not receive a reply to this letter. 

22. The next part of the chronology is, by correspondence dated 7 January 2014, the Applicant was invited to attend a hearing on 10 February 2014. She was invited to provide evidence of current enrolment, evidence of past studies and an explanation for any gaps in enrolment. The correspondence set out the time, location and date of the hearing (CB 56-57). The Tribunal noted it did not receive a reply to this letter (CB 65 at [8]).

23. The Tribunal noted that the Applicant did not appear at the scheduled hearing. The Tribunal kept the hearing open for several hours past the scheduled time, but the Applicant still did not appear (CB 66 at [9]). The Tribunal stated that it was satisfied that the letters of 11 February 2013 and 7 January 2014 were correctly sent to the address provided for receiving correspondence (CB 66 at [10]).

24. The Tribunal then considered whether to take further action before proceeding to make a decision. It decided not to take further action on the basis that the Applicant had been invited on two occasions to provide any material, and had not done so and had not provided anything in support of her appeal of the Minister’s decision, since she applied for the review in February 2013 (CB 66 at [11]). The Tribunal proceeded to make its decision and, in making its decision, the Tribunal observed the dates of the Applicant’s non-enrolment in a registered course, those being between 4 August 2011 and 16 July 2012 (CB 67 at [18]).

25. The Tribunal then considered the Applicant’s written submissions that she had earlier provided to the delegate (CB 16 to 18), regarding her gap in enrolment and the explanations that she gave (CB 67 at [19]). Ultimately, the Tribunal decided that the Applicant had not addressed the critical period in question, and was not satisfied that the Applicant had given a satisfactory explanation or reason for not maintaining her enrolment for a period of around 10 months, while she held her last student visa (CB 67 at [20]). As I have noted, the Tribunal went on to affirm the delegate’s decision. 

26. I turn now to consider, in general terms, the Applicant’s grounds for judicial review. In her application filed on 26 May 2014, the Applicant gave the following grounds of review:

    “My Visa was refused because of the 11 months gap in enrolment of a Course.  I was not able to attend the MRT hearing because of the fact that I changed my address from … St Albans, VIC 3021 to … North Melbourne, VIC 3003.  I did not receive the MRT decision (sic) post, so I was not able to respond to MRT Appropriately.”

27. In handwriting, she corrects the postcode 3003 to 3051. She continues:

    “I have always believed in the power of quality education and complying with relevant visa conditions..  I have always been diligent with my studies and hence, I intend to complete my study and fulfil all my visa conditions.  I am willing to provide documents towards financial requirements, transcripts and English language requirements that will help me complete my studies successfully and prove my genuine interest in further education.

    On compassionate grounds, please grant me an opportunity to prove my intention as a Genuine Temporary Entrant that will help me achieve my career goal.” 

28. The Applicant’s complaint in this ground of review is that she did not receive the invitation letter from the MRT, and that is why she did not attend the Tribunal hearing. This ground of review is quickly disposed of by reference to the notification provisions of the Act, which I will very briefly go through. The provisions commence with sub-s.360(1) of the Act, which provides that the Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments, relating to the issues arising in relation to the decision under review.

29. Section 360A of the Act requires that the Tribunal give the Applicant notice of the day on which, and the time and place at which, the Applicant is scheduled to appear. Sub-section 360A(2) of the Act provides that such notice must be given to the Applicant by one of the methods specified in s.379A of the Act. The period of notice must be at least the prescribed period or, if no period is prescribed, a reasonable period before the hearing: s.360A(4) of the Act.

30. The notice to the Applicant inviting her to the hearing (CB 56-57), complies with sub-s.360A(1) of the Act. It was also given to the Applicant in accordance with s.379A of the Act. Section 379A of the Act deals with the methods by which the Tribunal gives documents to a person. At sub-s.379A(4) of the Act, a prescribed method is dispatch by prepaid post within three working days of the date of the document, to the last address for service provided to the Tribunal by the recipient in connection with the review (sub-s.379A(4)(c)(i) of the Act).

31. The last address provided by the Applicant was in her application for review, being the St Albans address (CB 44). The invitation to the Applicant, sent out on 7 January 2014, for her to appear before the Tribunal, was sent to that address. Consequently, by reason of sub-s.379C(4) of the Act, the Applicant was taken to have received the document, because the Tribunal gave the Applicant the document by the method prescribed in sub-s.379A(4) of the Act. The Applicant was taken to have received it within seven working days after the date of the document.

32. The invitation invited her to attend a hearing on 10 February 2014 and, in other respects, therefore, complied with s.360A of the Act. The Applicant’s ground for review that she did not receive the invitation because she had changed her postal address, therefore, cannot raise a ground of jurisdictional error. It simply is not arguable, because of these notification provisions of the Act.

33. As noted earlier, at the first hearing date of this application for judicial review, the Applicant, in her oral submissions, raised additional grounds and, in order to avoid the appealable errors which arose in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146, the hearing was adjourned for the Applicant to put her additional grounds of review before this Court. Orders were made for the Applicant to file an amended application, with a supporting affidavit and any written submissions.

34. The Applicant did not file an amended application. She arrived at the hearing on 16 May 2016 with an affidavit. In circumstances where she was self-represented, I granted her leave to file the affidavit, a copy of which was then made available to the counsel for the Minister. The part of the affidavit that is relevant to the additional ground is as follows, and I quote from the affidavit:

    “Since I was having so many issues and misguidance and few tragedies such as burglary of my passport n (sic) educational documents went missing from my house (sic) later death of my younger brother during the gap time. I had lost hope and went in depression and my self-confidence was deteriorating. So I decided to go through (CECA) Career Education Consultancy Australia Pty Ltd.  My case was handled by Duti Singh.  I was following what she was telling me to fix my study issues.  When I change my address in November I spoken (sic) to her and she said that she will update the current address.  I was calling her many times to ask (sic) anything comes up and she said relax it will take easily 2 years before hearing and stop calling as she has many more things to do.  I was (sic) bit relaxed till the time one of my friend (sic) got his MRT decision in May whom applied after me.  I called CECA to find out and that time I was told that Duti Singh left the job and they have no idea (sic) regards me.  I become panic (sic) and went to CECA to find out after almost 3 days continuously visiting them from 9 am to 5 PM I was told like (sic) your decision were (sic) made in Feb (sic) and they have no relevant file or any data (sic) regards me in their system that time I start yelling that I will sue you guys Then the director of CECA Rahul Singh approached to (sic) me by saying they will help me with financially (sic) and will look after paper work too. Since director talked to me they straightaway start work and a Lawyer named Robert start preparing my file.  I was under lot of pressure & stress when I got to know that I become (sic) illegal.  I was in lot of rush I was not in right frame of mindset I did not even read my previous Affidavit which was prepared by Robert.  Same day they took me to police station on Flinders Lane to get certified the form.  I thought they are helping me and the lawyer of the CECA Robert was waiting outside of police station in car to take me to the office of Department Of Immigration to grant me a visa Bridging E.  Same day they said we are lodging an application for federal Court payment method was done in Check (sic) from Rahul Singh.  There are so many issues and explanations which I feel are relevant to be answerable in front of Migration Review Tribunal. 

    I have always believed in the power of quality education and complying with relevant visa condition.  I have been diligent with my studies and hence, I intend to complete my study and fulfil all my visa condition before I visit my parents. 

    I am the victim due to the negligence of Agent of CECA which was acting (sic) behalf of me who failed to update my address with MRT and I lost the chance to appear in front of MRT, However I feel like I better off (sic) explaining the whole scenario in front of MRT. 

    I am not here to challenge to MRT decision.  I am here to humbly request to send me back to MRT so I can defend myself as I have suffered a lot during this period and I am growing older too and achieve my goals and settle down.”

    (my emphasis)

1. I asked the Applicant, given her affidavit, was it a fair characterisation of her second ground of judicial review that, I quote:

   “I lost the opportunity to appear before the Tribunal because of the negligence of CECA and thereby was not given procedural fairness.”

2. The Applicant said that this characterisation reflected her second ground for review.  The Applicant has essentially alleged that she used a third party, whom she said in submissions she had paid a fee of $2,500 at the beginning of her visa application, to, in essence, take over the filing of her visa application and all other methods, despite the fact that this third party, CECA, was not on the record. She complains that, although she informed CECA of her new address, they failed to inform the Tribunal and, consequently, she lost the opportunity to appear before the Tribunal.

3. It seems to the Court that the Applicant has not, in her affidavit material, adduced sufficient evidence to support an allegation of fraud and I refer to the decision of Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5 at [20] and [28]. Her complaint is about negligence by that third party. The threshold of fraud having been committed by a third party, such that jurisdictional error arises, is a stringent one, and one upon which, on the material before the Court, the Applicant simply has not established.

4. It is settled principle that negligence or inadvertence by an Applicant’s migration agent will not be sufficient to give rise to fraud: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189. I am of the opinion that, in the circumstances, the Applicant’s second ground for judicial review is not arguable.

5. There is no basis for concluding that she would have an arguable case to establish jurisdictional error on the part of the Tribunal. Consequently, I am not satisfied I should grant her leave to extend the period in which she may lodge her application for judicial review.

6. In these circumstances, I find that it is not in the interests of the administration of justice to extend the time period in which the Applicant may file her application for judicial review.

7. The Applicant’s application for an extension of time is refused, with costs.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Jones

Date: 24 June 2016