Saroj v Minister for Immigration
[2018] FCCA 3134
•5 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SAROJ v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3134 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for judicial review of decision of Administrative Appeals Tribunal that it had no jurisdiction to review a decision of a Delegate of the Minister for Immigration not to grant to him a Partner (Temporary) (Class UK) (Subclass 820) visa or a Partner (Residence) (Class BS) (Subclass 801) visa because the applicant applied to the Administrative Appeals Tribunal outside of the 21 day time limit imposed by s.347(1)(b) of the Migration Act 1958 (Cth) – no jurisdictional error identified by the applicant – application for judicial review dismissed. |
| Legislation: Administrative Appeals Tribunal Act 1975 (Cth), ss.24Z, 29 Evidence Act 1995 (Cth), s.58 Migration Act 1958 (Cth), ss.5F, 65, 66, 336N, 347, 494C Migration Regulations 1994 (Cth) |
| Cases cited: Australian Competition and ConsumerCommission v Air New Zealand (2012) 207 FCR 448 Brown v Minister for Home Affairs [2018] FCA 1643 |
| Applicant: | SOMCHAI SAROJ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1731 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 21 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 5 November 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Ms S. He |
| Solicitors for the First Respondent: | Mills Oakley |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 5 July 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1731 of 2016
| SOMCHAI SAROJ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Thailand aged 43 years, having been born on 15 October 1975.
By Application filed in this Court on 5 July 2016 he seeks to quash and impliedly have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 8 June 2016 which found that it did not have jurisdiction to hear and determine an application for review of the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 1 February 2016 refusing to grant to the Applicant a Partner (Temporary) (Class UK) (Subclass 820) visa (temporary Partner visa) and a Partner (Residence) (Class BS) (Subclass 801) visa (permanent Partner visa and collectively Partner visa) under s.65 of the Migration Act 1958 (Cth) (the Act) because it had been lodged with the Tribunal after the 21 day time period prescribed under the Act.
I note that the grant of a Partner visa comprises a two stage process because the effect of cl.801.221(1) of Sch.2 to Migration Regulations 1994 (Cth) (Regulations)is to prescribe that at time of decision for the permanent Partner visa the relevant applicant is already the holder of a temporary Partner visa.
Background
The Applicant arrived in Australia on 19 February 2009 on a Student (Class TU) (Subclass 570) visa and was subsequently granted a further like Student visa on 24 October 2011. The Applicant then lodged a Partner visa application on 11 February 2013, but this application was withdrawn on 26 July 2013 after the relationship with his then sponsor had broken down.
The Applicant then on 14 March 2014 lodged his current Partner visa application the subject of this proceeding with Ms Sasipapha Huangthai as his sponsor (the sponsor). The sponsor was an Australian permanent resident and had married the Applicant on 14 February 2014.
At the time the Applicant lodged this Partner visa application he was represented by a migration agent, being Mr Thongpanh Malivong, who was authorised to receive correspondence on his behalf from the Department by email to the email address being ‘[email protected]’ (the nominated email address).
Statutory Provisions Relevant to Partner Visa Applications
As at the date of application the Applicant had to satisfy cl.820.211 of the Regulations. Relevantly, cl.820.211(1) and (2) provided as follows:
820.211
(1) The applicant:
(a) is not the holder of a Subclass 771 (Transit) visa; and
(b) meets the requirements of subclause (2), (5), (6), (7), (8) or (9).
(2) An applicant meets the requirements of this subclause if:
(a) the applicant is the spouse or de facto partner of a person who:
(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(ii) is not prohibited by subclause (2B) from being a sponsoring partner; and
(c) the applicant is sponsored:
(i) if the applicant’s spouse or de facto partner has turned 18—by the spouse or de facto partner; or
(ii) if the applicant’s spouse has not turned 18—by a parent or guardian of the spouse who:
(A) has turned 18; and
(B) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
Relevantly, the Applicant was required to prove that he was a spouse of the sponsor under s.5F of the Act, which provided as follows:
5F
(1) For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.
(2)For the purposes of subsection (1), persons are in a married relationship if:
(a) they are married to each other under a marriage that is valid for the purposes of this Act; and
(b) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Decision of Delegate
Regulation 1.15A of the Regulations had been made for the purposes of s.5F(3) of the Act and the Delegate in her Decision Record considered the matters required by that regulation in determining whether or not the Applicant and the sponsor were the spouse of each other under s.5F of the Act, being:
a)the financial aspects of the relationship;
b)the nature of the household;
c)the social aspects of the relationship; and
d)the nature of the persons’ commitment to each other.
In the result, the Delegate found in his Decision Record dated 1 February 2016 that the Applicant had provided minimal evidence in relation to the financial position of himself and the sponsor and he was thus unable to properly consider the financial aspects of their relationship. The Delegate also found that the Applicant and the sponsor had not provided a good description of their daily routine and living arrangements and was not satisfied that the sponsor resided with the Applicant at the address they had provided.
Further, the Delegate recorded that the Applicant and the sponsor had provided no information regarding the social aspects of their relationship and no evidence in this regard from either themselves, the sponsor’s family or their friends and acquaintances. The Delegate also found that there was limited evidence provided of the Applicant and the sponsor’s commitment to one another, and the Delegate therefore found that the Applicant was not the spouse of the sponsor as required by cl.820.211(2)(a) and refused his application for the temporary Partner visa, which meant that the Delegate also had to refuse to grant the permanent Partner visa to the Applicant.
I find on the evidence before me that the Decision Record of the Delegate and the notification of refusal letter each dated 1 February 2016 were sent on that day by email to the nominated email address.
That evidence is in the Court Book where the notification of refusal letter and Decision Record are reproduced and I find that the notification of refusal letter complies with s.66 of the Act and is dated 1 February 2016. I find that the notification of refusal letter advised the Applicant that any application for merits review of the refusal decision had to be given to the Tribunal within the prescribed timeframe, which commenced on the day on which he was taken to have been notified of this decision and ended at the end of 21 days thereafter.
Additional evidence establishing that the notification of refusal letter and Decision Record were forwarded by email on 1 February 2016 is to be found in the affidavit of Nicola Johnson, sworn on 8 June 2017, which attaches business records of the Department of the Minister which I infer and consider to be authentic (see: s.58 of the Evidence Act 1995 (Cth) and Australian Competition and ConsumerCommission v Air New Zealand (2012) 207 FCR 448 per Perram J and DZE17 v Minister for Immigration and Border Protection [2018] FCA 1521 per Allsop CJ (DZE17)).
Decision of Tribunal
The Applicant lodged an application to the Tribunal for merits review of the Delegate’s decision on 23 February 2016. The Delegate’s decision was a Part 5-reviewable decision.
By letter dated 4 May 2016 the Tribunal wrote to the Applicant and pointed out that it appeared that the review application lodged by him was not valid as it had not been lodged within 21 days from the day on which he was taken to have been notified of the decision of the Delegate. The letter went on to assert that the Delegate’s decision was emailed to the Applicant’s authorised recipient on 1 February 2016 and that this was the date on which he was taken to have been notified of the Delegate’s decision and that therefore the final date for the Applicant to lodge his application for review was 22 February 2016, but it had not been lodged until 23 February 2016 and therefore appeared to be out of time. The letter invited the Applicant to make any comments on whether a valid application for review had been made.
The Applicant responded to the Tribunal’s invitation in email correspondence sent on 16 May 2016, 17 May 2016 and 18 May 2016.
In his email of 16 May 2016 the Applicant claimed that he had known that he had until 22 February 2016 to lodge his application for review, that he was paid his wages on 18 February 2016 at 8pm, informed his registered migration agent on 19 February 2016 and sent to him his bank account details. He seems to claim that on 22 February 2016 he gave more bank account details to his registered migration agent and checked his bank account regularly until the morning of 23 February 2016, when the funds he expected to have been used for the lodgement fee were still in his bank account. Later in the day his review application was lodged.
In his email of 17 May 2016 he largely stated the same facts and circumstances as he had in his email of 16 May 2016, saying:
I inform agency visas on 19 February 2016, and also send my bank account details for send my application to MRDivision on that day because I got payment of wages on 18 February 2016 at 8pm from my employer companies, but agency visas not do anything for my application on that day and appointment with me to see them on 22 February 2016.
I go to see agency visas on 22 February 2016 to give more details bank account. I keep checking my bank account until 23 February 2016 morning, the money for my application MRDivision still in my bank account, I called to agency visas ask them about that. Agency visas tell me they will send my application on 23 February 2016 afternoon.
The Applicant’s email of 18 May 2016, sent via his friend and work colleague Mr Mark Daniels, recited the same essential facts as his emails of 16 May 2016 and 17 May 2016 had done.
At [2] of its Decision Record the Tribunal found that the review application had been lodged on 23 February 2016 and at [4] that the material before it indicated that the Applicant had been notified of the Decision Record of the Delegate on 1 February 2016 by email.
At [6] the Tribunal recorded the substance of the Applicant’s response on 16 May 2016 to the invitation to comment letter from the Tribunal dated 4 May 2016. Then at [7] the Tribunal noted that there would be no legal basis for it to accept the review application lodged on 23 February 2016 as it had no discretion to accept a review application that is lodged outside the prescribed time frame and there was no provision for extension, even in cases where extenuating circumstances might exist.
Accordingly, the Tribunal found that:
a)in accordance with s.494C of the Act, the Applicant was taken to have been notified of the decision on 1 February 2016;
b)the prescribed period within which the review application could be lodged ended on 22 February 2016; and
c)as the application for review was not received by the Tribunal until 23 February 2016 it followed that it was not made in accordance with the Act and the Tribunal had no jurisdiction in the matter.
Grounds of Attack on Tribunal Decision in this Court
The Grounds relied upon by the Applicant were verbatim as follows:
1. MRT review application was lodged with the Tribunal on 01/02/2016.
2.The decision was made without considering visa subclass requirement.
3. The decision was made with considering the technical defect of immigration department.
Consideration
Ground 1
At the hearing I pointed out to the Applicant that there was no evidence whatsoever that his review application to the Tribunal was lodged on 1 February 2016 and that the only evidence was that it was lodged with the Tribunal on 23 February 2016. Such is the case and the Applicant agreed with this and also that his migration agent had “got the delegate’s decision on 1 February 2016” and that the Applicant knew he had to lodge his review application by 22 February 2016.
Accordingly, Ground 1 fails on a factual basis and does not establish jurisdictional error.
Grounds 2 and 3
I will interpret these Grounds as contending that the decision of the Tribunal that it did not have jurisdiction was legally wrong. In my view, the decision of the Tribunal was clearly correct. The evidence which is before me establishes that the Decision Record of the Delegate and the notification of refusal letter, both dated 1 February 2016, were sent by email on that date to the nominated email address.
The relevant statutory regime in relation to applications for Partner visas and the relevant 21 day time period to lodge an application for review of a decision of a Delegate has recently been analysed and considered by Charlesworth J in Calimoso v Minister for Immigration & Border Protection [2016] FCA 1335 (Calimoso) and I do not consider it necessary to set out that regime in detail again here. It suffices to say that, in my view, the Tribunal was correct to find that the application for review was lodged outside the statutory time limit and was therefore invalid and, accordingly, the Tribunal had no jurisdiction to hear the review application on its merits. That statutory legislation meant that the application for review had to be lodged by the Applicant with the Tribunal by, as was found by the Tribunal in its Decision Record, 22 February 2016, but it was lodged one day late on 23 February 2016.
Unfortunately for the Applicant, there is no provision in the Act that allows the Tribunal, or a Court, to override or extend the time limit prescribed by s.347(1)(b)(iii) of the Act or any jurisdiction to entertain an application that was not made within time. As Charlesworth J stated in Calimoso at [29]:
[29]The time period in which an application for review must be filed is absolute. The Tribunal has no discretion to extend the time in which an application may be made.
To similar effect Marshall J had said in Patel v Minister for Immigration and Citizenship [2012] FCA 145 at [7] as follows:
[7] Section 347 of the Act permits a review of a decision of a delegate to the Tribunal. Under s 338(2) of the Act a decision to refuse to grant a Skilled Visa is reviewable in and by the Tribunal. Section 347(1)(b) provides that an application for a review must be made within the prescribed period. Regulation 4.10 of the Migration Regulations 1994 (Cth) (“the Regulations”) prescribes a period of 21 days to bring an application to review a decision referred to in s 338(2) of the Act where, as here, the applicant is not in immigration detention. The Regulations do not provide for an extension of the 21 day time limit, even in special or exceptional circumstances. This appears to be a deliberate choice of the framers of the regulations. …
A Final Matter
At the hearing the Applicant asserted that it was his migration “agent’s intention to not submit” his review application, by which he presumably meant submit within time. However, there is no evidence in support of this assertion, which is also inherently implausible.
The Applicant stated that he could not lodge his review application until at least 8pm on 18 February 2016 when he was to receive his wages from which he could pay the required lodgement fee. On 19 February 2016 he first approached his migration agent about lodgement of the review application, and on 22 February 2016 it would seem he again saw the migration agent. However, there is no evidence of why the review application was not lodged until 23 February 2016. Perhaps the Applicant’s bank would not allow the migration agent to access the Applicant’s bank account to obtain the lodgement fee. Perhaps the employer was late in crediting the wages to the Applicant’s bank account. Be that as it may, there is no evidence that the migration agent was negligent, let alone fraudulent.
This complaint concerning the migration agent was only raised at the hearing and was not presaged by his Grounds concerning which I had advised the Applicant at the directions hearing on 5 August 2016 as follows:
HIS HONOUR: …Can you translate this for the applicant, please, Madam Interpreter, order 2 gives the opportunity to the applicant to file an amended application giving full particulars of the grounds on which he relies. It’s not for me to give him legal advice, but I can tell him this: that the grounds that he has got in his present application are, effectively, meaningless. And so he better take – I suggest that he certainly take up the opportunity to file an amended application which gives reasons and proper particulars of what his complaint is about the decision below.
Conclusion
The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and accordingly the Application made to this Court is to be dismissed.
Postscript
A word should be said of the decision of the Federal Court of Australia in Brown v Minister for Home Affairs [2018] FCA 1643 (Brown) handed down on 31 October 2018 when this judgment was in its penultimate draft form.
Brown was in a sense a provisional judgment subject to final submissions to be made on behalf of the Minster on the question of the extent of the power under s.29 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to extend the time for the making of an application to the Tribunal for review of a decision under the Act.
In the circumstances I consider it sufficient to find that:
a)by force of s.336N of the Act “the Tribunal’s powers in relation to Part 5-reviewable decisions may be exercised by the Tribunal only in its Migration and Refugee Division”; and
b)by force of s.24Z(1) of the AAT Act s.29 of the AAT Act does not apply in relation to a proceeding in the Migration and Refugee Division of the Tribunal, and see generally in this regard the decision of Griffith J in CLA15 v Minister for Immigration & Border Protection [2017] FCA 116 at [20] and the decision of Judge Smith in this Court in Kumar v Minister for Immigration [2017] FCCA 1116 at [109] and [110].
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 5 November 2018
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