PREET v Minister for Immigration

[2015] FCCA 2707

FEDERAL CIRCUIT COURT OF AUSTRALIA

PREET & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2707

Catchwords:
MIGRATION – Migration Review Tribunal – Temporary Business Entry (Class UC) visa – application to tribunal lodged out of time – no jurisdiction – show cause hearing – no arguable case.

Legislation:
Migration Act 1958 (Cth), ss.66(1), 338, 494B(5), 494C(5)

First Applicant: KOMAL PREET

Second Applicant: AMRIK SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: MLG 2515 of 2014

Judgment of: Judge Riley

Hearing date: 17 August 2015

Date of last submission: 17 August 2015

Delivered at: Melbourne

Delivered on: 17 August 2015

REPRESENTATION

Counsel for the first applicant: The first applicant appeared in person

Solicitors for the first applicant: The first applicant was not represented

Counsel for the second applicant: The second applicant appeared in person

Solicitors for the second applicant: The second applicant was not represented

Counsel for the first respondent Bromley Hornsby

Solicitors for the first respondent: Sparke Helmore

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Sparke Helmore

ORDERS

1. Pursuant to rule 44.12 of the Federal Circuit Court Rules2001, the application filed on 12 December 2014 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $3,416.

3. The name of the second respondent be amended to the Administrative Appeals Tribunal.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2515 of 2014

KOMAL PREET

First applicant

AMRIK SINGH

Second applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First respondent

MIGRATION REVIEW TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is a show cause hearing in an application to review a decision of the Migration Review Tribunal (“the tribunal”).  The issue in a show cause hearing is whether the applicant has an arguable case.  The tribunal considered that it had no jurisdiction, because the application to it was lodged out of time.

2. The applicant was notified of the decision of the Minister’s delegate by email on 4 August 2014. Consequently, under the provisions of ss.66(1), 494B(5) and 494C(5) of the Migration Act 1958 (Cth) (“the Act”), the applicant was deemed to have been notified of the decision on that date. She then had 21 days to file her application. That meant the application needed to be filed on or before 25 August 2014.

3. The tribunal considered that, once the applicant had been validly notified of the tribunal’s decision, the applicant had to lodge the application to the tribunal within 21 days.  The tribunal also considered that it had no jurisdiction to extend time, even if the applicant was not at fault in lodging the application late.  I accept that the tribunal correctly understood the law. 

4. The applicant said in her material that she had been given a different date by immigration officers. That may be true. However, immigration officers are not able to change the effect of the legislation. The tribunal had no power to extend time. Thus, any error on the part of an immigration officer cannot override the clear words of the Act.

5. The complication in this case is that it is possible that the application that was made to the tribunal was not actually an MRT-reviewable decision. The section that deals with that question is s.338 of the Act. That section relevantly provided that:

   (2)A decision ... to refuse to grant a non-citizen a visa is an-MRT reviewable decision if:

   ...

   (d) where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:

   (i) the non-citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or

   (ii) an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.

6. The visa sought by the applicant was a Temporary Business Entry (Class UC) visa.  Accordingly, the applicant was required to be sponsored by an approved sponsor and the visa was of a temporary kind.

7. The applicant conceded before the court today that she did not have sponsorship by an approved sponsor at the time the application to review the decision to refuse to grant the visa was made.  Consequently, subparagraph 338(2)(d)(i) is of no present moment.  In relation to the second limb of paragraph (d), there was no evidence either way that the sponsor had sought review of the sponsorship refusal decision.

8. The situation is that either:

   (a)the delegate’s decision in this case was an MRT-reviewable decision, because there was a review pending of the sponsorship refusal, in which case the application to the tribunal was out of time; or

   (b)the application to the tribunal was not an MRT-reviewable decision because there was no review pending in respect of the refusal decision, in which case the delegate’s decision was not an MRT-reviewable decision and therefore the tribunal had no jurisdiction. 

   Consequently, whatever the facts were under s.338(2)(d)(ii) of the Act, the tribunal had no jurisdiction.

9. Unfortunately, and perhaps through no fault of the applicant’s own, it seems to me that the tribunal had no jurisdiction, one way or the other, to review the delegate’s decision. Therefore, it cannot be said that the applicant has an arguable case in the application to this court.  Therefore, the application should be dismissed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  5 October 2015