Sandhu v Minister for Immigration

[2017] FCCA 2820

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANDHU v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2820

Catchwords:
MIGRATION – Application for Student (Class TU) (subclass 500) visa – where application to Tribunal one day out of time – Tribunal’s jurisdiction not engaged – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.347(1)(b), 338(2), 494C

Migration Regulations 1994 (Cth), reg.4.10, cl.500.212 of Schedule 2

Applicant: BIKRAMJEET SINGH SANDHU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 603 of 2017

Judgment of: Judge Jarrett

Hearing date: 17 November 2017

Date of Last Submission: 17 November 2017

Delivered at: Brisbane

Delivered on: 17 November 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed on 20 June, 2017 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 603 of 2017

BIKRAMJEET SINGH SANDHU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By his application filed on 20 June, 2017 the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal dated 1 May, 2017 in which it determined that it did not have jurisdiction to review a decision of a delegate of the first respondent to refuse to grant to the applicant a Student (Class TU) (subclass 500) visa.

2. The first respondent opposes the application.  The second respondent enters a submitting appearance.

3. The applicant is a citizen of India.  He lodged an application for a Student (Class TU) (subclass 500) visa on 3 February, 2017 whilst here in Australia.  In his application he nominated a particular email address at which to receive correspondence from the first respondent about his application.

4. On 24 February, 2017 the first respondent (by his delegate) wrote to the applicant via his nominated email address and requested further information in relation to his visa application.  In response, the applicant provided a written statement and further supporting evidence.

5. On 29 March, 2017 a delegate of the first respondent refused to grant him the visa on the basis that it was not satisfied that the applicant genuinely intended to stay temporarily in Australia and therefore he did not meet the requirements in cl.500.212 of Schedule 2 to the Migration Regulations 1994 (Cth). The delegate notified the applicant of the decision by sending a copy of the decision to his nominated email address as the delegate was entitled to do.

6. The applicant was taken to have received the decision at the end of the day on which the document was transmitted, namely 29 March, 2017: s.494C(5) of the Migration Act 1958 (Cth).

7. On 20 April, 2017 the applicant applied to the Tribunal for review of the delegate’s decision.  The applicant provided a copy of the delegate’s decision with his application for review.

8. On 24 April, 2017 the Tribunal wrote to the applicant and invited him to comment on the validity of his application. The Tribunal considered that it had been filed one day outside the 21 day time limit prescribed by s.347(1)(b) of the Migration Act.

9. The applicant responded to the Tribunal on 27 April, 2017.  He said that he was in a bad financial position and could not afford a migration agent. He said that he thought that he could file the application within 21 working days, but was later told that it was in fact 21 calendar days.

10. On 24 May, 2017 the Tribunal found that it did not have jurisdiction in the matter as the application for review had not been made within the prescribed time period.

11. On 20 June, 2017 the applicant filed an application for judicial review in this Court.  Despite orders made on 8 August, 2017 permitting the applicant to file any amended application including complete particulars of his grounds of review by 26 September, 2017 nothing further has been filed by the applicant.  He has not filed any written submissions either.

12. The application for review specifies the following under the optimistically entitled section: “Grounds of application”:

    1. Family Tieup with home country.

    2. I am close to finish my course.

13. On their face, those statements do not articulate any ground of review that might assist the applicant.  He was unable to articulate any when he appeared before me for the hearing of this application.

14. What he did say was that he had instructed a migration agent to make an application for review to the Tribunal but that, despite him paying money to his migration agent, his agent did not file his application on time.  Those statements stand in stark contrast of course to what it was that he said to the Tribunal when the Tribunal asked for some information about why his application was out of time.  It is, in my view, directly inconsistent with what he told the Tribunal. 

15. That the applicant has been unable to articulate any particular ground of review before this Court is not surprising.  The Tribunal’s decision was demonstrably correct and unattended by any error, let alone jurisdictional error.

16. Section 347(1) of the Migration Act provides:

    347  Application for review of Part 5‑reviewable decisions

    (1)  An application for review of a Part 5‑reviewable decision must:

    (a)  be made in the approved form; and

    (b)  be given to the Tribunal within the prescribed period, being a period ending not later than:

    (i)  if the Part 5‑reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—28 days after the notification of the decision; or

    (ii)  if the Part 5‑reviewable decision is covered by subsection 338(5), (6), (7) or (8)—70 days after the notification of the decision; or

    (iii)  if the Part 5‑reviewable decision is covered by subsection 338(9)—the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision; and

    (c)  be accompanied by the prescribed fee (if any).

17. The delegate’s decision was a Part 5 reviewable decision for the purposes of, inter alia, s.347(1) of the Act. It was so defined by s.338(2) of the Act and so was within s.347(1)(b)(i).

18. Regulation 4.10 of the Migration Regulations prescribes a period for the purposes of s.347(1)(b)(i). It provides:

    4.10  Time for lodgment of applications with Tribunal (Act, s 347)

    (1)  For paragraph 347(1)(b) of the Act, the period in which an application for review of a Part 5 reviewable decision must be given to the Tribunal:

    (a)  if the Part 5 reviewable decision is mentioned in subsection 338(2) or (7A) of the Act—starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received; or

    (b)  if the Part 5 reviewable decision is mentioned in subsection 338(3) or (3A) of the Act—starts when the applicant receives notice of the decision and ends at the end of 7 working days after the day on which the notice is received; or

    (c)  if the Part 5 reviewable decision is mentioned in subsection 338(5), (6), (7) or (8) of the Act—starts when the applicant receives notice of the decision and ends at the end of 70 days after the day on which the notice is received; or

    (d)  if the Part 5 reviewable decision is prescribed under subsection 338(9) of the Act—starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received.

19. The Tribunal correctly identified that the application for review in this case needed to be given to the Tribunal in the period which started when the applicant received notice of the decision and ended at the end of 21 days after the day on which the notice was received, i.e. within 21 days after the applicant was notified of the primary decision in accordance with the statutory requirements. The Tribunal found that the applicant was notified of the delegate’s decision by letter dated 29 March, 2017 which was dispatched by email to his nominated email address on that day.

20. The Tribunal found that in accordance with s.494C of the Act, the applicant was taken to have been notified of the decision on 29 March, 2017. That finding was plainly correct. The Tribunal considered that the prescribed period for making a review application therefore ended on 19 April, 2017. That finding too, was plainly correct.

21. Because the review application was not given to the Tribunal until 20 April, 2017 the Tribunal found that it was not made in accordance with the relevant legislation and that the Tribunal therefore had no jurisdiction to review the decision that aggrieved the applicant.  That finding was plainly correct as well. 

22. Before me today the applicant has asked for some more time in which to make an application to the Tribunal.  I have no power to grant such an order and the Tribunal has no power to extend the time within which an application to review a decision of the delegate in this case might be made. 

23. As such this application discloses no basis upon which this Court might disturb the Tribunal’s decision.  The application for review must therefore be dismissed with costs.

24. The applicant says that he is not in a financial position to pay costs but the usual rule is that costs follow the event unless in the special circumstances of the case, that rule will not be applied.  Impecuniosity is never sufficient to amount to special circumstances such that the usual rule is not applied.  The applicant shall pay the first respondents costs.  Accordingly I so order.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate: 

Date:  17 November 2017