Sandhu v Minister for Immigration
[2018] FCCA 1636
•12 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SANDHU & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1636 |
| Catchwords: MIGRATION – Application for review – where the application was filed out of time – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 66, 347(1), 347(1)(b), 474, 476, 494B(5), 494B(5)(b), 494C(5) Migration Regulations 1994 (Cth), r.4.10 Federal Circuit Court Rules 2004 (Cth), sch.1, pt.3, div. 1 |
| Cases cited: Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 |
| First Applicant: | KAMLJEET KAUR SANDHU |
| Second Applicant | TAJINDER SINGH KHAIRA |
| Third Applicant | TEJASH SINGH KHAIRA |
| Fourth Applicant | JAPPREET KAUR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 192 of 2018 |
| Judgment of: | Judge Egan |
| Hearing date: | 12 June 2018 |
| Date of Last Submission: | 12 June 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 12 June 2018 |
REPRESENTATION
| First Applicant | In Person |
| Second Applicant | No Appearance |
| Third Applicant | First Applicant as Litigation Guardian |
| Fourth Applicant | First Applicant as Litigation Guardian |
| Solicitors for the First Respondent | Clayton Utz |
| The Second Respondent | Entered a submitting appearance |
ORDERS
That the application be dismissed.
That the Applicants pay the First Respondent’s costs fixed in the sum of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 192 of 2018
| KAMLJEET KAUR SANDHU |
Applicant
| TAJINDER SINGH KHAIRA |
Second Applicant
| TEJASH SINGH KHAIRA |
Third Applicant
| JAPPREET KAUR |
Fourth Applicant
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
I have before me an application for review of a decision of the Administrative Appeals Tribunal (“the AAT”) handed down on 30 January 2018. The application for review was filed on 26 February 2018. The grounds for review are as follows:
“1. The Tribunal’s decision was arbitrary and unreasonable.
2. The Tribunal committed jurisdictional error in failing to exercise its discretion to extend the time to file an application for a short period of time.
3. The tribunal failed to make a relevant enquiry before making their decision.”
The decision under review was one whereby the AAT held that it did not have jurisdiction to review the decision of a delegate of the First Respondent handed down on 14 August 2017 to refuse to grant a Temporary Business Entry (Class UC) Visa pursuant to Section 65 of the Migration Act 1958 (“the Act”). The review application was lodged with the AAT on 6 September 2017. However, pursuant to Section 347(1)(b) of the Act and Regulation 4.10 of the Migration Regulations 1994 (“the Regulations”) an application for review of the decision of the delegate of the Minister had to be made within twenty-one (21) days after the Applicant had been notified of the decision in accordance with the statutory requirements. It is a fact admitted by the First Applicant that the material before the AAT indicated that each of the Applicants were notified of the decision by letter dated 14 August 2017 and that such letter was dispatched by email.
The dispatch of a letter notifying the Applicants of a decision of a delegate of the Minister is able to be dispatched by email pursuant to Section 494B(5)(b) of the Act. By Section 494C(5) of the Act, it is provided that if the Minister gives a document to a person by the method of email as provided for in Section 494B(5) of the Act, the person is taken to have received the document at the end of the day on which the document is transmitted. In this case, because the letter was transmitted by email to each of the Applicants on 14 August 2017, any application for review of that decision had to be made by the Applicants on or before the end of 4 September 2017 pursuant to the provisions of the Act and the Regulations referred to earlier. The Applicants did not make application for review until 6 September 2017 – two (2) days outside the time within which the application for review had to be filed.
In those circumstances, the application for review was filed out of time and the AAT found that it therefore had no jurisdiction to review the application. The decision of the AAT in that regard is a decision with which I agree.
The AAT decision is a privative clause decision within the meaning of Section 474 of the Act. Therefore, prima facie, the AAT’s decision is not reviewable pursuant to Section 476 of the Act. That is except in circumstances where a jurisdictional error occurs, in which case the decision of the AAT would be subject to judicial review. I accept that in this case because the AAT did not have jurisdiction to review the review application, there was no jurisdictional error able to be demonstrated on the part of the AAT.
Addressing the grounds of review, one firstly turns to the ground asserting that the decision was arbitrary and unreasonable. In that regard, the Act prescribed the way in which the Minister was to notify the Applicants of his decision. The notification letter sent to the Applicants complied with the prescribed requirements as set out in Section 66 of the Act. It specified the contents of Clauses 457.223(2), 457.223(4), and 457.321 of the Regulations as constituting the criteria which the Applicants did not satisfy, and it gave written reasons as to why the Applicants did not so satisfy the criteria for the Visa to be granted. The notification letter also stated that the Applicants could apply for the decision to be reviewed, the time in which the application for review was required to be made, and provided instructions including the online and physical addresses to which any review application was to be made.
There was transmission by the Minister to the Applicants of the notification letter and statement of reasons, each by email, to the last known email address for service provided to the Minister by the Applicants for the purpose of their receiving documents. The Applicants had advised the Department that one Mr Hendrik de Korte was their authorised recipient for correspondence. Mr de Korte had consented to the Department communicating to him via email and notification of the delegate’s decision had been sent to Mr de Korte via his email address on 14 August 2017 as indicated earlier. That fact was admitted by the First Applicant. Accordingly, the Minister is taken to have given the Applicants due notice of the delegate’s decision on 14 August 2017.
In circumstances where the notice of the delegate’s decision was given on 14 August 2017, any application for review had to be filed by 4 September 2017 also as indicated earlier. The Applicants filed their application on 6 September 2017, which was two days out of time.
In the case of Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172, the Full Court held that the word “prescribed” in the phrase “within the prescribed period” is of critical importance, and that Sub-Section 347(1) of the Act fixed the maximum period within which applications may be made but authorised the making of regulations prescribing shorter periods.
As set out above, it is my view that the AAT proceeded according to law and accordingly, I am satisfied that the AAT’s decision was not arbitrary and unreasonable.
The second ground of review which must be addressed is the failure to grant an extension out of time. In circumstances such as this, the AAT has jurisdiction to review a Part 5 reviewable decision, but that jurisdiction only arises when the application is properly made and compliant with the statute. Because the application was filed two days later than the time limit allowed at law, the AAT was not required to review it. Prescribed review periods have been held to be both strict and stringent (see Szulh v Minister for Immigration and Border Protection [2015] FCA 835 at [11] – [17] per Robertson J and Han v Minister for Immigration and Multicultural Affairs [2000] FCA 1071 per Sackville J).
Despite the fact that the application for review was lodged a short period of time outside the statutory prescribed period, that fact does not give rise to a jurisdictional error. In a recent decision of His Honour Judge Jarrett in DZAFH v Minister for Immigration & Anor [2017] FCCA 387, it was held that the tribunal was correct to determine that the tribunal had no jurisdiction to determine the purported application despite the review application having been made one day out of time after the expiration of the prescribed period.
Further, the AAT discharged the procedural fairness obligations owed by it to the Applicant by inviting the Applicant to comment on the AAT’s preliminary view that it lacked jurisdiction in the matter, and that it considered that no further delay or extension was required. The AAT considered an email response which conceded that the review application had been made out of time, and it also noted that the Applicants did not put any further material before the AAT to demonstrate that the application had been made within time.
I therefore find in the circumstances that no jurisdictional error was evident in respect of the ground of review that the AAT failed to grant an extension of time.
The third ground is that the AAT failed to make a relevant enquiry. Firstly, the Applicant has not identified any basis on which the Applicants make such assertion. The Applicant always bears the onus of making out any jurisdictional error. See Maroun v Minister for Immigration and Citizenship (2009) 112 ALD 424 at [15]. In the absence of particularisation, no jurisdictional error can be established (see SZVLY v Minister for Immigration and Border Protection [2016] FCA 940 at [28] – [29] per Gilmour J.
I find that it was not unreasonable for the AAT to not take other steps to get further information from the Applicants, or any other third party, in relation to the Applicants’ failure to comply with statutory time limits. Indeed, there is no general obligation upon the AAT to conduct its own inquiries in addition to considering information provided to it by the Applicant (see Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at [1]).
In any event, the mere fact that it may have been reasonable to make an enquiry (which in this case, I do not find) does not necessarily mean that the lack of such enquiry amounted to any jurisdictional error (see Singh v Minister for Immigration and Border Protection [2017] FCA 1285 a t[64] per Murphy J). In any event, the circumstances of this matter are such that the AAT did not need to make any further enquiry in circumstances where the failure to comply with the statutory time limit was clear, obvious and admitted by the Applicants. The receipt of an email from the Applicants indicating that a third party migration agent had failed to properly file the application in time does not, in the circumstances, constitute a basis for the making of further enquiry. No fraud or negligence on the part of the AAT is evident on any basis.
Accordingly, there is no basis for allowing the review based upon the ground that the AAT failed to make a relevant enquiry.
In all of the circumstances, therefore, I dismiss the application for review.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate: Hennie Lui
Date: 26 September 2018
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