Randhawa v Minister for Home Affairs

[2020] FCCA 821

FEDERAL CIRCUIT COURT OF AUSTRALIA

RANDHAWA & ANOR v MINISTER FOR HOME AFFAIRS & ANOR [2020] FCCA 821

Catchwords:

MIGRATION – Student Visa - review of administrative appeals decision – where the Applicants did not file a Merits Review within the prescribed period being 21 days – where the First Applicant alleges fraud – whether the decision was affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.3471(b)

Migration Regulations 1994 (Cth), Reg.4.10

Brown v Minister for Home Affairs (No.2) [2018] FCA 1787
Beni v Minister for Immigration and Border Protection [2018] FCAFC 228

First Applicant: HARMANDEEP KAUR RANDHAWA

Second Applicant: JAGROOP SINGH RANDHAWA

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 494 of 2019

Judgment of: Judge Vasta

Hearing date: 17 March 2020

Date of Last Submission: 17 March 2020

Delivered at: Brisbane

Delivered on: 17 March 2020

REPRESENTATION

First Applicant: In Person

Second Applicant: In Person

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the Application filed 27 May 2019 is dismissed.

2. That the Applicants pay the costs of the First Respondent fixed in the sum of $5,000.

IT IS NOTED:

(A)That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 494 of 2019

HARMANDEEP KAUR RANDHAWA

First Applicant

JAGROOP SINGH RANDHAWA

Second Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. Every once in a while in this jurisdiction, one encounters cases where the strict application of the law, that each Judge has undertaken to perform, leads to a result that seems, in many ways, unjust.  This current matters is such a matter.  On 26 April 2019, the Administrative Appeals Tribunal (“the AAT”) found that it did not have jurisdiction to conduct a merits review on a decision given by the Delegate of the Minister in May of 2018.  The Applicants, on 27 May 2019, asked this Court to review that decision.

2. As can be seen from page 1 of the Court book, an application for a student visa by the Applicant, with her husband as a secondary applicant (as a member of a family unit), was made for a student visa on 14 March 2018.

3. The First Applicant had been given a student visa and had been in this country for, it would seem, around four years.  The visa was to run out in March of 2018.  Either just before, or just after, it was to run out, this application for a further student visa was lodged. It was lodged electronically.

4. The application was in the name of the First Applicant.  It showed that she was married.  It gave the details of her husband, the Second Applicant, who was with her.  It noted their usual address in India.  It noted their address in Australia and it gave a phone number of 0456 121 222.  It gave an email address of [email protected].  It nominated that email address as to where all correspondence should be sent to.  It attached then a number of documents and gave some education history details in Australia.

5. Particularly, the application attached an educational certificate, a fixed term deposit certificate, a certificate of overseas student health cover, the marriage certificate, the overseas qualifications, a copy of the passport and a copy of the Pearson Test of English Academic for the husband, the Second Applicant.  There was also the certificate of overseas student health cover and the same marriage certificate.  The application noted that there would be submitted a statement of purpose in one to two days.  The statement of purpose, it would seem, was not submitted.

6. On 2 May 2018, the Delegate decided not to give the First Applicant a student visa.  The Delegate noted this, at page 74 of the Court Book, that: 

   Information in the application for a student visa requires the applicant to provide a statement and include any supporting information in relation to the Genuine Temporary Entrant (GTE) criterion.  The applicant did not adequately address the GTE criteria by providing a statement of purpose, evidence of employment and a copy of their educational qualifications…

7. The Delegate then considered a number of matters and decided not to grant the visa.  That decision was then sent to the First Applicant at the email address of harmaankaur2018@gmail.  That letter, with the decision record, was then deemed to have been received on that day.  The letter, found at Page 68 of the Court Book, spoke of the review rights, saying that:

   The decision can be reviewed. 

   We cannot consider your visa application any further.  However, you are entitled to apply to the Administrative Appeal Tribunal (AAT) for a merits review of this decision.  An application for merits review of this decision must be given to the AAT within 21 calendar days after the day on which you are taken to have received this letter.

8. In other words, simple mathematics would say that the application to the AAT had to be filed by 23 May 2018.  It was not filed by that date which meant that the AAT had no jurisdiction to hear the matter.

9. The First Applicant said that she did not know that the application had actually been refused.  When she found out that it had been refused, she engaged a migration agent to represent her. 

10. In essence, she has claimed that she has been the victim of a scam from a person who has made himself, or his company, out to be registered migration agents.  What she has said to me, and she has given me some documents, was that she paid $20,000 to a person by the name of Siddharth Sheth.  She paid that $20,000 in three instalments; one on 10 February, one on 26 February and one on 30 May 2018.

11. She concedes that she did give all of the documents that were attached to her application to Mr Sheth, but she did not give a statement of purpose.  Even though the application said that a statement of purpose would be given in one or two days, the First Applicant did not send to Mr Sheth a copy of a statement of purpose until 11 April 2018; some 28 days after the lodgement of this application.  That may not matter greatly in the scheme of things. 

12. The greatest crime against the First Applicant, she says, is that the email address of [email protected] is not her email address.  It is not an address that is known to her and, even though it may have parts of her names in it, it is certainly not her address.

13. She believes it may be an address that the person, Mr Sheth, has created but she is not sure of that.  Therefore, she says, when the notification that the application was refused, she did not know about it because she had no access to that email address, nor did she even know that such a note could have been sent to that email address. 

14. She says that she had some grounds that she wanted to agitate before the AAT.  The main ground is that she did have a statement of purpose which, at the very latest, was available on 11 April 2018 (which was certainly some two to three weeks before the Delegate made their decision).  She points out that the Delegate took very much into account that there was no statement of purpose.  The AAT could have reviewed the decision taking into account her statement of purpose.

15. The First Applicant said that she has made a complaint online about this person, Mr Sheth, and she has made a complaint to the State Police and the State Police have said that they cannot do anything about it because it is not a State issue.  Though not germane to the issue before me, it would seem to me, though, that certainly some area of law enforcement should be made aware of this matter. A casual perusal of the application that was put in, shows that the only matters that were completed in the application seem to be clicking choices from dropdown menus such as a “yes” or “no” with regard to questions that were being asked on the application form.

16. There does not seem to have been any true active engagement with the process and simply a form being filled out and a number of documents attached to it.  Certainly, it would be very difficult to justify that such work would have cost $20,000.

17. Be that as it may, the First Applicant, then, with the help of her new migration agent, attempted to bring the matter before the AAT. 

18. I should say that there is no evidence that Mr Sheth is a migration agent.  It would seem that the evidence is that he is not.  However there was nothing in the application that suggested that the application was filled out by anyone other than the First Applicant.  Therefore, from the standpoint of the Minister or the Delegate, they have received an application.  It is a valid application.  Obviously the proper fees have been paid.  The form has been filled out.  The matter has been considered and the decision was conveyed to the address that was on the application form.

19. Because that had all occurred, the AAT ruled that s.3471(b) of the Migration Act 1958 (Cth) (“the Act”) and Reg.4.10 of the Migration Regulations 1994 (Cth) (“the Regulations”) had not been complied with. That is, that an application for review of this decision had not been made within 21 days of the Applicant being notified.

20. The AAT referred to a decision of Greenwood, J in Brown v Minister for Home Affairs (No. 2) [2018] FCA 1787 (“Brown”) where His Honour had said, at paragraph 57, that he felt that the Tribunal did have power to extend the timeframe for appeal lodgements.

21. The AAT noted that His Honour’s decision was given on 19 November 2018.  The AAT also noted however, in another matter, Beni v Minister for Immigration and Border Protection [2018] FCAFC 228, the Full Court looked at what Greenwood, J had said in Brown and decided that His Honour was incorrect in his decision, and that the Tribunal does not have the power to extend time limits.

22. Therefore, because the AAT did not have the power to extend the time limits, the only way in which the Tribunal had jurisdiction was if the application had been lodged within the 21 days. Because it had not been lodged within the 21 days, the AAT ruled that it did not have jurisdiction to review the matter.

23. The application before me had five grounds which I will read into the record: 

    (1)  I am a victim of an organized scam targeting international students, seeking unreasonably high fees for visa extensions. l took the services of an agent (who said that he was a registered migration agent) for the student visa and that decision has had huge costs and repercussions. He had a huge office in Sydney and there was no reason for me to believe that he was scamming me. The agent lodged my student visa, provided a different email address, and made many mistakes. I now believe that he had no intention to get the visa granted. This was his way to get me to keep paying him once the visa got refused. The Statement of Purpose was deliberately not provided to the Department. The Scam has been reported to Border Watch. (attached). He closed his office and has done the same to many more people. I did not get the refusal in time as he had provided a different email address. This can be checked as in my many years in Australia, I have never used that email address. We requested the department to re-issue the notification of the refusal of my student visa. The department has refused to consider our application. In case of such frauds which has not only happened to me , but to a lot of other international students, these circumstances must be considered as compelling and compassionate circumstances I have gone through this due to my ignorance and trust that an agent in Australia cannot do such frauds. I apply for judicial review on grounds of request for procedural fairness in case of fraud.

    (2)    The Visa Officer refused the visa application based on a number of Confirmation of Enrolments which were duplicated and not in my knowledge. I have requested PRISMS Help desk to find out. This in itself is a jurisdictional error.

    (3)  We had no choice but to lodge an appeal for review. On 19 November 2018, Justice Greenwood handed down a decision that "the filing deadline (21 days in this case) is not absolutely fixed and inflexible in every circumstance, and that since the 1st July 2015, the Tribunal has had the power to extend the filing deadline". (Brown v Minister for Home Affairs (No. 2)- (2018] FCA 1787). We requested the Tribunal to exercise its power to extend the time frame for the appeal lodgement and consider the appeal as valid. When we lodged the AAT Application AAT had the power to extend the time frame. We received an acknowledgement from AA T on 26 November 2018. On 14 December 2018, the Full Court decided in Brown was wrongly decided and that the AAT does not have the power to extend the time limits. This is consistent with the previous position that extensions of time cannot be granted in the AAT for Migration Appeals. However, we lodged the AAT Appeal in between these two decisions and my case should have been considered by AAT.

    (4)  On 29 April 2019, we received a notification of decision by AAT in which it was stated that AAT has no jurisdiction to determine our application and that they cannot review the decisions of the delegate of the Minister. I have been not only wronged by the rogue agent, but also the Department of Home Affairs, as well as the Administrative Appeals Tribunal. I request and plead that it is a judicial error.

    (5)  Judicial Review is my only option and I humbly request that the court declares that there is an error committed by the Minister as well as AAT. I cannot afford to pay a lawyer and will argue my case.

24. The argument of the First Applicant is, that, because the decision of Greenwood J came out on 19 November 2018 and that the Full Court’s decision came out on 14 December 2018, there was a small window of 25 days in which the law was as Greenwood J had proclaimed to be.  The argument continued that because the First Applicant had lodged the review application before the AAT in that 25 day window, it was actually lodged during a period where the law should have been interpreted as Greenwood, J had ruled it was. 

25. Whilst this may seem a very attractive argument to a layperson, it is obvious that it has no merit whatsoever.  The law did not change.  It was a Judge’s interpretation and, for a short time, was the most authoritative voice on the matter.  But in any event, the question was decided quite authoritatively by the Full Court on 14 December when they made their ruling.  I say that with all the greatest respect to Greenwood J who obviously came to his decision very carefully and very honestly, but as the Full Court has said, incorrectly.  This does not constitute a jurisdictional error.

26. Apart from that, there is no other matter that the First Applicant can bring before me.  As I explained to the First Applicant during the course of the hearing, the Delegate dealt with the application that was before the Department of Home Affairs (“the Department”).  That application was in the name of the First Applicant.  It was an application for a student visa and it contained a number of documents that the First Applicant wished the Department to consider.  The fact that it did not end up containing a document that was sent to Mr Sheth four weeks later, or did not have the First Applicant’s correct email address, really is irrelevant to the Department’s consideration. 

27. The Department was not to know that there was another document that had not been given to it.  The Department was not to know that the email address was incorrect.  The Department followed exactly what it was supposed to do, and that is, to assess the application on all of the material before it and make a decision, and then convey that decision to the address that was contained in the application itself.

28. It does not seem to me that even if there had been an ability to prove the fraud that the First Applicant, in any way, could succeed in this matter. 

29. It is for this reason that I said at the outset that an application of the law, as it must be applied, sometimes leads to a situation that is unjust.  But just because I feel that it is unjust and because I feel great sympathy for the Applicants, that does not give me the right to twist or torture the law so as to make it conform with a favourable outcome for the Applicants. 

30. I must apply the law as Parliament has enacted it.  That is, unless the application was made within 21 days of the time in which the notification of the decision was sent to the email address on the application, the AAT does not have jurisdiction to deal with the matter. 

31. Therefore I dismiss the application with costs in the sum of $5,000.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 17 April 2020.