SHARMA v Minister for Immigration

[2013] FCCA 573

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHARMA v MINISTER FOR IMMIGRATION [2013] FCCA 573

Catchwords:
MIGRATION– Application for judicial review – Migration Review Tribunal found it had no jurisdiction to review – no jurisdictional error – application dismissed.

Legislation:  
Migration Act 1958, ss.338, 347, 476, 494B & 494C

Migration Regulations 1994 (C’th), Regs 1.15C & 40.10
Commonwealth Constitution, s.75(v)
Federal Circuit Court Rules 2001, R 44.12

Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476
Craig v The State of South Australia [1995] HCA 58

Applicant: RISHI SHARMA

Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number: ADG 282 of 2012

Judgment of: Judge Lindsay

Hearing date: 11 June 2013

Date of Last Submission: 11 June 2013

Delivered at: Adelaide

Delivered on: 11 June 2013

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Mr Alderton

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The Application filed on 14 November 2012 be dismissed pursuant to Rule 44.12 of the Rules of Court.

2. The applicant do pay the respondents’ costs of and incidental to these proceedings fixed in the sum of THREE THOUSAND, THREE HUNDRED AND TWENTY-SIX DOLLARS ($3,326.00).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 282 of 2012

RISHI SHARMA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

1. Before me this morning is an application pursuant to s.476 of the Migration Act 1958 (“the Act”) which application seeks an order by way of review of a decision of the Migration Review Tribunal of 12 October 2012.  The decision of the Tribunal was that it did not have jurisdiction to deal with the application for review.  The effect of that decision was to leave, as it were, intact, the decision of the delegate of the Minister not to grant the applicant the visa that he was pursuing which was a skilled graduate (subclass 485) visa.  The delegate’s decision was made on 28 June 2012, and it related essentially to the failure of the applicant to provide, in one form or another, evidence that satisfied the requirements of Regulation 1.15C of the Migration Regulations 1994 (C’th) (“the Regulations”) that he had competent English. 

2. That issue was something that had been adumbrated in a letter the delegate sent the applicant on 2 April 2012.  So almost three months before the decision this issue was the subject of a request for specific information.  I know from the material before the Tribunal that the applicant says that he received by way of email – and I will come to that mode of service and why it was chosen by the delegate in a moment – but I know from the decision of the Tribunal that the applicant says he received the email of 28 June after that date.  It could have been up to several weeks late, and he told me today that the letter of 2 April which made the request for the information, inter alia, relating to the competent English requirement was just not sent at all.  So as I understand it, it was not received late.  It was not received at all, and the decision of the delegate was, in the absence of that evidence, not to grant the visa. 

3. The application came before the Tribunal but it had been filed late. It had been filed on 25 July 2012 when it ought to have been filed on 19 July 2012, and the reason it ought to have been filed by that date is a function of the requirements of the Act and the Regulations made under the Act. Section 347 of the Act provides in subsection 1(b) that the application for review in a Migration Review Tribunal review must be given to the Tribunal within the prescribed period, and it must be a period in this case not later than 28 days after the notification of the decision. That requirement arises from the fact that the decision is one, to use the language of s.347 of Act, “covered by” s.338(2) of the Act. As to what the prescribed period is under s.347 of the Act, we have to go to the Regulations and in particular Regulation 40.10 which says that for s.347(1)(b) of the Act, the period in which an application for review of a Migration Review Tribunal decision must be given to the Tribunal, and then (a) is the applicable sub-regulation and it provides for a period of 21 days.

4. That is how we calculate the requirement to file the review from the delegate’s decisions by 19 July 2012, and there is no dispute but that it was not filed until the 25 July 2012. The consequence of that from the point of view of the Tribunal was that it had no jurisdiction to entertain the application. It simply did not have a review before it because s.347(1)(b)(i) of the Act had not been complied with. That is the first limb of it. The other reason it is said it could not be entertained is because there was no mechanism for extending the time for the review. The Tribunal did not have a mechanism analogous to the mechanism that this Court has in certain circumstances to extend the time for application made to this Court.

5. The Tribunal in dismissing the application for those Reasons did not do so without giving the applicant an opportunity to comment on what it proposed to do. 

6. There was a letter of 27 July 2012 at CB 74 which asked for the provision of any information, but more importantly there was a letter of 6 August 2012 CB 76 which drew this matter to the applicant’s attention, and his response which is at CB 78 is to say what he said before me today that he did not receive it until it was too late.

7. I said I would mention the mode of service of the decision. That is a matter that is dealt with by s.494B of the Act, and sub-section (5) provides that documents the Minister needs to give a person may be given by a method for doing that is constituted by transmitting it by fax or email, and if it is done by email, sub-section (5) of s.494C of the Act says when it is that the document is taken to have been received by the recipient. If it is dispatched by email to that email address, it is taken to have been received at the end of the day on which the document was transmitted.

8. That is the other factor that goes into that calculation.  So the material sent by the applicant to the Tribunal CB 78 is really just a confirmation of the lateness.

9. To return to the jurisdiction of this Court, it is a jurisdiction that is the same as the High Court of Australia has under s.75(v) of the Commonwealth Constitution but only in relation to “migration decisions” as they are defined under the Act, and they include a privative clause, or purported privative clause decision which this decision of the Tribunal is. I would only allow the review if I was satisfied that the decision of the Tribunal were attended by jurisdictional error (see Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476). That concept has been explained in a number of cases, perhaps most usefully and most concisely by the High Court of Australia in Craig v The State of South Australia [1995] HCA 58. There is nothing in the application to this Court which identifies anything resembling a jurisdictional error. The remedy choice which is only a matter of ticking a box is not even addressed.

10. The applicant here for reasons which are to some extent understandable from his personal point of view just put to me matters which indicated the importance of him being given another opportunity to put material before the Tribunal, and it relates to his pursuit of another class of visa. He maintains he must have the Tribunal revisit the 485 visa application in order to be able to promote that other visa application.  I cannot comment on that.  I do not know about that, but at least it would make his pursuit of this review explicable.

11. However, my examination of the way in which the Tribunal proceeded and the way in which the delegate antecedent to the Tribunal proceeded has not identified any jurisdictional error.

12. I cannot identify any error in the way the Tribunal went about its task, let alone a jurisdictional error, and in those circumstances I propose to accede to the application of the Minister and will order that the Application filed on 14 November 2012 be dismissed pursuant to Rule 44.12 of the Federal Circuit Court Rules 2001. 

13. It is appropriate in my view that costs follow the event.  There will be an order that the applicant pay the minister’s costs of and incidental to this application fixed in the sum of $3,326.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Lindsay

Date:  24 June 2013