Rai v Minister for Immigration
[2014] FCCA 380
•3 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAI v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 380 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Sherpa v Minister for Immigration & Anor [2010] FMCA 664 |
| Applicant: | BHISHAN DIP RAI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3176 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 3 March 2014 |
| Delivered at: | Sydney |
| Delivered on: | 3 March 2014 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms M Ardita DLA Piper |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3176 of 2013
| BHISHAN DIP RAI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application filed on 19 December 2013 seeking judicial review of a decision of the Migration Review Tribunal (Tribunal) made on 21 November 2013. The Tribunal found that it did not have jurisdiction in the matter before it, which was a purported application to review a decision of the delegate of the Minister in relation to a skilled residence visa application. The judicial review application is supported by a short affidavit by Mr Rai, which I received.
In that affidavit, Mr Rai states that he lodged his review application with the Tribunal on 21 September 2013 and that the Tribunal decision was made without giving him the opportunity to attend a hearing. Both of those factual assertions appear to be uncontroversial.
The judicial review application is opposed by the Minister in a response filed on 24 January 2014. The Minister asserts that there is no error in the Tribunal’s finding that it lacked jurisdiction in the matter due to the fact that Mr Rai had not lodged his review application to the Tribunal within 21 days of the day on which he is taken to have been notified of the decision of the delegate.
In addition to Mr Rai’s affidavit, I have before me as evidence the court book filed on 29 January 2014 and a bundle of documents tendered by Mr Rai, which collectively became Exhibit A1.
The circumstances of this matter are that Mr Rai applied, on his own behalf, for a subclass 885 visa which was considered by the Minister’s Department. Exhibit A1 supports statements made from the bar table that prior to the decision of the Minister’s delegate to refuse that visa application, Mr Rai became concerned that he would not be able to establish eligibility because of difficulties in obtaining a passing grade in an English language test. He engaged the services of two companies, Austlink Consulting Pty Ltd and Austlink Education Group Pty Ltd, to assist him in obtaining alternative visas, those being a subclass 457 visa and a subclass 187 visa. He contracted to pay a substantial sum to those companies for their assistance. It appears that around this time, he also engaged the services of Mr Shamim Ahmed of AIC Migration Services, although it does not appear that the Minister’s Department was notified of that, at least in relation to the skilled residence visa application.
The delegate made his decision to reject the visa application on 28 August 2013. That decision was notified to Mr Rai by a letter dated the same day, which was emailed to Mr Rai at his nominated email address on the same day[1]. Under the well settled regulatory regime for the notification of decisions, Mr Rai was taken to have been notified of the delegate’s decision on the same day that the email was sent. He then had 21 days to apply to the Tribunal for review of the delegate’s decision.
[1] Court Book, 14-17
That period expired on 18 September 2013 and, as has been conceded by Mr Rai, he did not lodge his review application with the Tribunal until three days later. It might be considered unfortunate that the Tribunal lacks the power to extend time for the lodgement of review applications. The High Court and this Court have, from time to time, made law reform recommendations that the Tribunal should be given that power[2]. However, no such power has been conferred. In the circumstances, the Tribunal correctly concluded that it did not have jurisdiction in the matter.
[2] Sherpa v Minister for Immigration & Anor [2010] FMCA 664 at [39]
On the basis of statements made by Mr Rai from the bar table, it seems that his attention was distracted at the time of notification of the delegate’s decision by the alternative visa processes upon which he was then engaged. That is unfortunate, especially as he told me he has not been successful in any of those visa processes. It appears to me that the review application to the Tribunal and these proceedings were intended by Mr Rai to maintain a regular migration status while he sought to make a successful residence visa application of one kind or another. That is still his intention. It is a matter for him what visa processes he now chooses to pursue with the Minister’s Department.
Mr Rai has, however, failed to raise an arguable case of jurisdictional error by the Tribunal in these proceedings and in the circumstances, I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $2,800. That is below the amount prescribed in the Federal Circuit Court Rules for a proceeding at this stage. Mr Rai had some concerns about his capacity to pay but that is not a reason for the Court to refrain from making a costs order.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,800.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 4 March 2014
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