RAJKUMAR v Minister for Immigration
[2017] FCCA 2704
•10 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAJKUMAR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2704 |
| Catchwords: MIGRATION – Application for judicial review of delegate’s decision to refuse student visa – prescribed period for review application expired – show cause application – no appearance – application for reinstatement – relevant principles – adequacy of explanation – prejudice – application has no merit – no arguable ground – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05, 44.12 Migration Act 1958 (Cth), ss.48A, 48B, 338, 347, 476, 494B, 494C Migration Regulations 1994 (Cth), reg’n 4.02, cl 4.10 The High Denomination Bank Notes (Demonetisation) Act 1978 |
| Cases cited: AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30 |
| Applicant: | SHIVANGI RAJKUMAR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 248 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 6 October 2017 |
| Date of Last Submission: | 6 October 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 10 November 2017 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms Nyabally |
| Solicitors for the First Respondent: | Mills Oakley Lawyers |
| Second Respondent: | Having filed a submitting appearance |
ORDERS
The application in a case is dismissed.
The applicant pay the first respondent’s costs fixed at $500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 248 of 2017
| SHIVANGI RAJKUMAR |
Applicant
And
| MINISTER OF IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment concern an application in a case in which the relief sought by that application was expressed as follows:
1.Request for a second hearing for the applicant’s initial hearing being dismissed on account of absence from the Court due to medical reasons.
2.An order from the Federal Circuit Court, that the decision of the tribunal be quashed.
3.An order from the Federal Circuit Court, that the decision of the initial Federal Court hearing and Court order be quashed.
The application should be dismissed by reason that this application for judicial review has no merit. It has no merit because the application was lodged with the Tribunal outside of the time limit prescribed by the legislation. The Tribunal had no jurisdiction to conduct the review of the delegate’s decision refusing her a Student (Temporary) visa.
Background
The applicant is a 24 year old Indian national who was born in Kathmandu, Nepal. The applicant has completed her year 11 and year 12 education at Maribyrnong College, Victoria. She completed her year 12 qualification in 2011.
On 8 March 2016, the applicant lodged an application for a Student (Temporary) visa. By her visa application, the applicant agreed that the Department of Immigration and Border Protection (Department) might communicate with her by email. She provided the email address: [email protected].
On 8 March 2016, the Department wrote to the applicant acknowledging her application. The Department’s letter was transmitted to the applicant at her email address.
On 18 April 2016, the Department again wrote to the applicant attaching a checklist of the further information which it required the applicant to provide in order that consideration could be given to her student visa application. The Department’s letter was sent to the applicant’s email address.
The Department’s letter stated:
You must respond to this request within 28 days after you are taken to have received this letter.
The applicant did not provide the information that had been requested by the Department in its letter dated 18 April 2016. Instead the applicant transmitted an email stating that she had provided certain documents to the Department and continued:
However I need a bit of extra time to obtain the income stream and financial documents as I am organising them with my mum who is overseas back home . . .
The Department acceded to the applicant’s request. On 26 May 2016, the Department requested that the applicant provide all required documents by 23 June 2016.
On 25 October 2016, a delegate of the first respondent (Minister) refused the student visa application and advised the applicant of such refusal on that day. A copy of the delegate’s decision record was transmitted to the applicant by email on that day.
The delegate’s decision recounted the background to the student visa application including that the applicant had been invited on 18 April 2016 to comment on her circumstances in relation to the Genuine Temporary Entrant criterion and to provide certain documentation. The decision record stated that, “to date, no response to the Genuine Temporary Entrant criteria had been received. Therefore, I am not in a position to consider your viewpoint regarding your circumstances in relation to the points noted above.”
The delegate’s decision contained a review of the available information concerning the applicant and her academic progress, concluding that the applicant was “not a genuine student” and further that she was not a genuine applicant for entry and stay as a student. The delegate’s decision recorded that the applicants enrolment in a Bachelor of Business had been cancelled on 5 September 2016 by reason of her non-payment of fees.
On 17 November 2016, the applicant lodged an application for review with the Administrative Appeals Tribunal (Tribunal). The application bears a date stamp and a stamp indicating the application had been delivered by hand. The application was completed by the applicant in hand and recorded her email address in two sections of the document.
On 23 November 2016, the Tribunal wrote to the applicant inviting her to comment on the validity of the application for review. The letter recorded the Tribunal’s view that “your application is not a valid application as it was not lodged within the relevant time limit. The time limit is 21 days working from the day on which you are taken to have been notified of the primary decision. The primary decision was emailed to you on 25 October 2016 and, on the basis that 25 October 2016 was the date on which you are taken to have been notified, the last day for lodging the application for review was 15 November 2016. As the application was not received until 17 November 2016, it appears to be out of time. However this is a matter which must be determined by a Member.”
The applicant was invited to comment on the validity of her application by 7 December 2016.
By letter dated 5 December 2016 the applicant wrote to the Tribunal providing an explanation for the lodgement of her application. The applicant’s letter identified three reasons which were stated to be:
(a)lack of funds to file an application;
(b)lack of resources and expert opinion;
(c)request of fee reduction on application.
On 16 January 2017, the Tribunal determined that it did not have jurisdiction to consider the application. The Tribunal furnished a copy of its decision record to the applicant by email on 17 January 2017.
The Tribunal’s statement of decision and reasons recorded that the Tribunal did not have jurisdiction in the matter. The Tribunal analysed the history of the matter from the date of the delegate’s decision, transmission of that decision to the applicant on 25 October 2016 and the lodgement of the application for review on 17 November 2016.
The Tribunal referred to para 347(1)(b) of the Migration Act 1966 (Cth) (Act) and reg’n 4.10 of the Migration Regulations 1994 (Regulations) and stated that “an application for review of this decision had to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements.”
Procedural history
On 7 February 2017, the applicant sought an order in the exercise of the court’s jurisdiction under s 476 of the Act seeking to quash the decision of the Tribunal made on 16 January 2017.
The applicant filed an affidavit affirmed on 7 February 2017 exhibiting a copy of the Tribunal’s decision. Annexed to the applicant’s affidavit was a statement entitled “grounds of application.” The grounds identified the basis upon which the Tribunal had decided that it did not have jurisdiction to consider the matter and further stated:
1.I would like to state that an email was sent send to the tribunal on 15-11-2016, notifying them of my intention of applying for an appeal. The email is attached for reference.
2.As the email was sent in the prescribed timeframe of 21 days, so the Tribunal should consider my application to be valid and make a decision on my appeal against DIBP for the refusal of my student visa application.
Also annexed to the affidavit was an email. The quality of the email makes it difficult to discern the date on which it was transmitted but I will assume in favour of the applicant that the email was in fact sent to the Tribunal on 15 November 2016. However, the content of the email does not distinctly state that the applicant intended to apply for an appeal to the Tribunal as the grounds of her application in this court stated. From the copy email attached to the application it appears that the applicant attached various documents described as:
(a)AAT appeal letter. docx;
(b)death certificate.jpg;
(c)test results.ielts.jpg.
By a response filed on 7 March 2017 the Minister contended that: (1) the application failed to raise an arguable case for the relief claimed and should be listed for a show cause hearing pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) (Rules); (2) the application did not contain any proper grounds of review and failed to establish any jurisdictional error in the decision of the Tribunal.
The application was listed for a show cause hearing on 2 August 2017. There was no appearance by or on behalf of the applicant on that day. An order was made pursuant to rule 13.03C(1)(c) of the Rules that the application be dismissed with costs.
In those circumstances, on 22 August 2017 the application for reinstatement was made. It was supported by an affidavit of the applicant affirmed on 22 August 2017 to which I refer below.
The matter was listed for hearing on 6 October 2017. When the matter was called on for hearing there was no appearance by or on behalf of the Minister. Upon enquiry with the applicant it emerged that her application for reinstatement and affidavit had not been served. The applicant suggested that the documents had not been served because she had been told by the Registry that they would accept the documents. I did not enquire further in relation to that issue. Instead, communication was made with the solicitors for the Minister and the matter was adjourned until 2.00pm on that day.
Consideration
Where an applicant does not appear at a hearing, the court may dismiss the application: r 13.03C(1)(c) of the Rules.
The court may set aside an order made in the absence of a party: r.16.05(2)(a). The applicable principles are well settled.
In CAL15 v Minister for Immigration and Border Protection[2016] FCA 1344, Mortimer J held at [4]:
. . . the exercise of that discretion is a broad one, but three factors are consistently considered. They are whether the applicant has an adequate explanation for the non-appearance, whether there is any prejudice to the Minister if the matter is reinstated, and finally whether the applicant has an arguable case on judicial review.
see also BTR15 v Minister for Immigration and Citizenship[2010] FCA 530 at [7] (Edelman J); MZYEZ v Minister for Immigration and Citizenship[2010] FCA 530 at [7] (Ryan J) and MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs(2005) FCA 1066 at [18] (North J).
I apply these principles in the present application.
Reasonable excuse
The applicant’s affidavit merely annexed documents. It did not contain any paragraphs which explained why the applicant had been absent from the hearing on 2 August 2017. Rather it stated in a single paragraph “the documents provided in this application are true to my knowledge.” Attached to the affidavit was a letter dated 18 August 2017 addressed to the court. The applicant’s letter stated that she had been absent from court due to a respiratory infection and high body fever.
A medical certificate was attached to that letter. The letter continued that, based on medical grounds and unprecedented circumstances, the applicant had been unable to make an appearance and proffered a sincere apology both to the court and the Minister.
It does not appear the applicant made any attempt on or before 2 August 2017 to inform the court or the Minister of her illness or inability or intention not to appear at the hearing on 2 August 2017.
The medical records attached to the applicant’s affidavit included a referral by Dr Bonjiorno dated 4 August 2017 requesting an ultrasound of the applicant’s right middle finger together with a script for medication which is indecipherable, also dated 4 August 2017. There is also a receipt dated 4 August 2017. All of these documents post-dated the hearing on 2 August 2017.
However, in addition, the applicant attached a medical certificate dated 2 August 2017 given over the signature of Dr Bonjiorno which certified that the applicant would “be unfit for work for three days as she is suffering from respiratory infection.”
Although I entertain doubt whether the court should accept the applicant’s explanation for her absence from the hearing I will conclude in her favour that she has proffered a reasonable excuse.
Prejudice
It was not submitted by the Minister that any prejudice might flow to the Minister from the reinstatement and again I will assume in favour of the applicant that this factor is also made out.
Reasonably arguable prospect of success
An extension of time under rules of court is not automatic but calls for the exercise of discretion: Gallo v Dawson (1990) 93 ALR 479, 480 (McHugh J). Indeed, inherent in the grant of a discretionary power is an assumption that applications will sometimes be refused: Jackamarra v Krakouer (1998) 195 CLR 516, 540 (Kirby J), see also at 519-521 (Brennan CJ and McHugh J).
In CAL15, Mortimer J considered that it was critical to the proper exercise of the discretion in an application for reinstatement that the court should not proceed as if the application was a final hearing of the judicial review proceeding. Her Honour reasoned that the court need not be satisfied to the same level it would need to be satisfied to allow a judicial review application for that discretion to be exercised in favour of an order for reinstatement of the application: at [5], citing MZABP v Minister for Immigration and Border Protection[2015] FCA 1391 at [62]. Mortimer J reasoned that the threshold for consideration of the merits of the application for judicial review was whether the grounds were arguable: [6]. In this connection, it will be recalled that the same threshold is prescribed in the rules of court on a show cause hearing: cf para 44.12(1)(a)-(b) of the Rules.
I respectfully agree in the reasoning in CAL15 that, because the threshold requirement is to demonstrate that the application for judicial review contains grounds which are arguable, it must be shown that the grounds disclose a “level of rationality and a basis in the material” which is sufficient for the court to be satisfied the application should proceed to a full hearing: [6]. Her Honour emphasised that:
. . . at the level of assessing whether a ground is “arguable”, the Court should not expect a ground of judicial review to be fully developed, especially by an unrepresented asylum seeker whose first language is not English. [6], see also at [40].
It may also be assumed that the applicant was unfamiliar with court processes: cf AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30, [44(g)]; cf Ngu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 21, [11]-[15] (Spender J, Branson and Stone JJ agreeing). Moreover, I am conscious of the unreality and inutility of expecting that such a person will be able to identify the jurisdictional error of which they complain: AMF15, [44(e)], citing Shrethav Migration Review Tribunal (2015) 229 FCR 301, [53] (Mansfield, Tracey and Mortimer JJ). With those observations in mind, I have re-examined the Tribunal’s reasons.
The substantive question is whether the applicant has a reasonably arguable prospect of demonstrating error in the Tribunal decision. The Tribunal determined that it had no jurisdiction by reason of the application for review being lodged out of time.
The Tribunal reasoned that the application for review had to be made within 21 days after the applicant was notified of the decision. The Tribunal found that the applicant was notified of the decision on 25 October 2016 when the copy of the decision was emailed to her.
A document sent by the Department is deemed to be received, when transmitted by email, at the end of the day on which the decision is transmitted: s 494C(5). So long as the delegate complied with the requirements for valid dispatch prescribed by s 494B(4), the applicant is to be treated as having received the notice of the delegate’s decision: Minister for Immigration and Border Protection v ASE15[2016] FCAFC 37, [9] (North, Barker and Mortimer JJ).
As noted above the applicant has employed her email address throughout the process of her application for a student visa.
In this case, the Department transmitted the delegate’s decision dated 25 October 2016 by email. It transmitted that decision on that date. The decision was transmitted to the applicant’s email address: [email protected]. This is the same email address that the applicant employed when she lodged her application for a student visa. It is the same email address that has been employed in communications between the Department and the applicant throughout the processing of her application. It is the email address which is employed by the applicant in this proceeding.
There was no suggestion that the delegate had not transmitted the decision by email to the applicant on 25 October 2016. Indeed, the tenor of the applicant’s email sent to the Tribunal on 15 November 2016 indicates recognition of the time within which the application had to be filed, as perhaps does the delivery by hand of the application on 17 November 2016 also.
By the Tribunal’s calculation, the prescribed period within which the review application could be made expired on 15 November 2016. On 15 November 2016, the applicant informed the Tribunal that she proposed to lodge her application for review. She then lodged that application by hand on 17 November 2016. The front page of the application bears that date stamp and a stamp “by hand.” The applicant accepted that her application was not lodged until that date.
The Tribunal found that the application for review was not lodged until 17 November 2016. The contention that the application was lodged out of time raises the anterior question: what time limit was prescribed within which the application for review must be given to the Tribunal?
The applicant made application for a student visa. The delegate’s decision to refuse that application was a Part 5-reviewable decision: sub-s 338(2), reg’n 4.02.
Division 3 of Part 5 of the Act concerns Part 5-reviewable decisions and is comprised of ss 347-352. By sub-s 347(1), an application for review of a Part 5-reviewable decision must be lodged in an approved form, must be given to the Tribunal within the prescribed period and must be accompanied by a prescribed fee.
As the delegate’s decision was a Part 5-reviewable decision, by operation of sub-s 338(2), the application for review of that decision was an application in respect of which the nominal time limit prescribed by para 347(1)(b)(i) applied. That time limit was 28 days. However, that nominal time limit was capable of being abridged or reduced.
Sub-section 347(5) provides that Regulations made for the purposes of para 347(1)(b) may specify different periods in relation to different classes of Part 5-reviewable decision.
Part 4 of the Regulations concerns Review of Decisions. Division 4.1 of Part 4 concerns the review of decisions other than decisions in relation to protection visas.
Relevantly, cl 4.10(1)(a) of the Regulations applies to that class of Part 5-reviewable decision which is mentioned in sub-s 338(2) of the Act. Clause 4.10(1)(a) prescribes a 21 day time limit for an application for review of a Part 5-reviewable decision to which sub-s 338(2) applies. The 21 day time limit starts on the day that the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received.
As a result, the 28 day time limit prescribed by para 347(1)(b)(i) was reduced to a time limit of 21 days by the combined operation of sub-s 347(1)(b), 347(5) and reg’n 4.10(1)(a). Contextually, it is to be recognised that the notice provisions prescribed by the Act and Regulations are intended to be effective: MZZDJ v Minister for Immigration and Border Protection[2013] FCAFC 156, [21].
The Tribunal’s jurisdiction to conduct a review of the delegate’s decision depended on the applicant having given it a valid application for review within the prescribed time limit: see, e.g., Minister for Immigration and Citizenship v SZMTR [2009] FCAFC 186, [12].
As the Tribunal found, the application for review was given to the Tribunal outside of that 21 day time limit.
The application was given to the Tribunal out of time. Sub-sections 347(1)(b) and (5) of the Act, read with reg’n 4.10(1)(a) of the regulations, operated to prescribe a 21 day time limit was within which the applicant could lodge an application with the Tribunal for a review of the delegate’s decision. If it was lodged out of time the Tribunal had no jurisdiction to conduct the review. Once the time for seeking a merits review of the delegate’s decision had expired, the Tribunal had no power to extend that time: cfMinister for Immigration and Border Protection v ASE15, [2016] FCAFC 37, [15]; SZOBI v Minister for Immigration and Citizenship (No.2)[2010] FCAFC 151, [4], [22].
Conclusion
Once it is concluded that the Tribunal had no jurisdiction to conduct the review and no power to extend the time, it must be concluded that no arguable ground can be shown (in the sense described), for the application for judicial review. Accordingly the application for reinstatement of the application must be dismissed.
I am conscious that the applicant explained her failure to give her application to the Tribunal arose in consequence of the enactment in India of the Demonetisation Act which, she said happened ‘overnight’ and caused people and banks to suffer for a period of about two months. The applicant was reliant on her widowed mother to provide her the financial support necessary to lodge her application.
In Minister for Immigration and Border Protection v ASE15, North, Barker and Mortimer JJ observed that:
it is always open to the Minister, under s 48B of the Act, if the Minister thinks that it is in the public interest to do so, by written notice given to a particular noncitizen, to determine that s 48A (which prohibits the making of a further application for a protection visa where the grant of the visa has been refused, or having a further application for a protection visa made on the applicant’s behalf) does not apply to prevent an application for a protection visa being made by the noncitizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given. In a case such as the present, the exercise of power under s 48B could mitigate the arbitrary operation of s 494C(4) of the Act by allowing the protection visa application process to be started anew. That, however, is an administrative decision for the Minister, not for this Court. [2016] FCAFC 37, [51].
Although those observations were made in the distinct context of the particular restrictions that are applicable to a protection visa, they seem apposite in the present case: cf s 48.
The Reserve Bank of India did withdraw the status of banknotes of certain denominations with effect from 10 November 2016 being a date which coincides with the applicants attempt to lodge her application. The applicant did seek relief in respect of a filing fee on the application, and submitted that she had been reliant on her mother to provide her the financial support necessary to lodge her application. There was nothing in the case to indicate recent invention.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 10 November 2017
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