Shrestha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 280
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shrestha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 280
File number: SYG 2228 of 2018 Judgment of: JUDGE KENDALL Date of judgment: 21 April 2022 Catchwords: MIGRATION – Medical Treatment visa – decision of the Administrative Appeals Tribunal – where the application to the Tribunal was filed out of time – whether the Tribunal erred when determining that it lacked jurisdiction – whether the applicant was afforded procedural fairness – whether applicant was validly notified – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 48A, 66, 338, 347, 476, 494B, 494C
Migration Regulations 1994 (Cth), regs 2.16 and 4.10, cl 602.215 in Schedule 2
Cases cited: Abbas v Minister for Home Affairs [2020] FCCA 1051
Alam v Minister for Home Affairs [2019] FCA 389
Ali v Minister for Home Affairs [2019] FCA 1102
Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27
Bala v Minister for Immigration & Border Protection [2019] FCA 600
Beni v Minister for Immigration & Border Protection [2018] FCAFC 228
Craig v State of South Australia (1995) 184 CLR 163
Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75
Manandhar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1426
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Singh v Minister for Immigration & Border Protection [2020] FCAFC 31
SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Zhan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 469
Division: Division 2 General Federal Law Number of paragraphs: 70 Date of hearing: 13 April 2022 Place: Perth Applicant: In person Counsel for the First Respondent: Mr G Johnson Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
SYG 2228 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SUDEEP SHRESTHA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
21 APRIL 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant is a citizen of Nepal (Court Book (“CB”) 1). He arrived in Australia in February 2009 as the holder of a student visa. That visa was cancelled on 30 June 2011 because the applicant had breached his visa conditions. The applicant has remained in Australia unlawfully since that time (CB 31).
On 24 July 2013, the applicant applied for a Protection visa. That application was refused by a delegate of the first respondent (the “Minister”) on 3 December 2013. On 30 June 2014, the Refugee Review Tribunal affirmed the delegate’s decision (CB 31).
There were subsequent judicial review proceedings in relation to the applicant’s Protection visa application in the Federal Court of Australia, the Full Court of the Federal Court of Australia and the High Court of Australia (“HCA”). On 6 September 2017, the HCA dismissed the applicant’s appeal (CB 31).
On 13 October 2017, the applicant lodged a second Protection visa application. That application did not to meet the requirements set out in s 48A of the Migration Act 1958 (Cth) (the “Act”) (CB 31).
On 7 February 2018, the applicant applied for a Medical Treatment (Visitor) (Class UB) (Subclass 602) visa (the “visa”) (CB 1-16).
On 13 April 2018, a delegate of the Minister refused to grant the applicant the visa (CB 29-33). The delegate found that the applicant did not meet the requirements set out in cl 602.215 in Schedule 2 of the Migration Regulations 1994 (Cth) (the “Regulations”). Specifically, the delegate found that the applicant had “applied for a Medical Treatment visa to prolong his stay and maintain residence in Australia” (CB 32).
The applicant was notified of the refusal by letter dated 13 April 2018 (the “notification letter”) (CB 26-28) which was sent to him via email (also on 13 April 2018) (CB 25; affidavit of Emily Rosalind Dankworth Maker filed on 30 March 2022 (the “Maker Affidavit”), p 4).
On 7 May 2018, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 34-35).
On 22 May 2018, the Tribunal invited the applicant to comment on the validity of his application (CB 36-37). That letter stated:
I am of the view that your application is not a valid application as it was not lodged within the relevant time limit. The time limit is 21 days from the day on which you are taken to have been notified of the primary decision. The primary decision was emailed to you on 13 April 2018 and, on the basis that 13 April 2018 was the date on which you are taken to have been notified, the last day for lodging the application for review was 4 May 2018. As the application was not received until 7 May 2018, it appears to be out of time.
However, this is a matter which must be determined by a Member.
If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 5 June 2018. Your application, with any comments you make, will then be referred to a Member to make a decision on your application. If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.
On 4 June 2018, the applicant provided a written response to the Tribunal. In that response, the applicant explained that he was “not aware of 21 days’ time limit” and every letter he had received “from the immigration or court” indicated that “it was 28 days from the date of the letter”. The applicant also explained that he had checked a website which also stated that “it was 28 days for most visa”. The applicant also requested an extension of time within which to lodge the application for review of the delegate’s decision by the Tribunal (CB 41).
On 9 July 2018, the Tribunal determined that it did not have jurisdiction in the matter as the application for review had not been made in accordance with the requirements in s 347(1)(b) of the Act and reg 4.10 of the Regulations. Specifically, the application had not been filed within 21 days after the applicant was taken to have been notified of the delegate’s decision (CB 46-47).
On 10 August 2018, the applicant filed an application for judicial review of the Tribunal’s decision in this Court. That application is made pursuant to s 476 of the Act. To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
THE TRIBUNAL’S DECISION
The Tribunal’s decision is two pages long and spans seven paragraphs. In full, it provides:
APPLICATION FOR REVIEW
1.This is an application for review of a decision of a delegate of the Minister for Immigration on 13 April 2018 to refuse to grant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 7 May 2018. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
2.Pursuant to s.347(1)(b) of the Act and r.4.10 of the Migration Regulations 1994 (the Regulations) an application for review of this decision had to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements.
3.The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 13 April 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
4.On 22 May 2018, the Tribunal wrote to the applicant inviting him to make comments in writing by 5 June 2018 on whether a valid application for review had been made. This letter was sent to him by email on 22 May 2018. On 4 June 2018, the Tribunal received a response from the applicant in which he stated that he was not aware that there was a 21day time limit. He stated that when he received letters from the Department of Immigration and Border Protection or the Courts it was always 28 days and when he checked the website it was 28 days for most visas. He requested an extension of time to lodge his application for review. Unfortunately, the Tribunal does not have the authority to extend the time for the lodgement of an application for review.
5.The Tribunal finds that the applicant is taken to have been notified of the decision on 13 April 2018: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 4 May 2018.
6.As the application for review was not received by the Tribunal until 7 May 2018, it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.
DECISION
7. The Tribunal does not have jurisdiction in this matter.
PROCEEDING IN THIS COURT
The application for judicial review filed by the applicant on 10 August 2018 contains five grounds of review which provide (without alteration):
1.The decision was made on false information recorded in immigration system. The delegate of the minister said on its decision I was illegal between 2011 to 2013 but I have evidence of legal status with me.
2.It fail to acknowledge the specialist medical report where I was going medical treatment.
3.Tribunal had afforded procedural fairness to the Appellant, and/or erred in finding that the Tribunal had complied the procedures it was required to follow under the Migration Act 1958 (“the Act”). Tribunal didn’t give me the opportunity to submit my case and give oral evidence, and/or failed to comply with section 424 of the Act by not disclosing sudden adverse Information's before them. (Veal v MIMIA (2005) 225 CLR 88, paragraphs 20-24).
4.The tribunal made denial of natural justice by not considering applicants as a Genuine application and all physical and mental problem faced by applicant while robbed and torture in the train.
5.The decision was made under false adverse information recorded on immigration system without giving me the opportunity to prove they were wrong.
The applicant filed a supporting affidavit with his application for judicial review which repeats these grounds of review.
On 17 December 2021, procedural orders were made which gave the applicant an opportunity to file an amended application, any affidavit evidence and written submissions. No further materials were filed by the applicant.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicant on 10 August 2018, a Court Book numbering 47 pages (marked as Exhibit 1), the Maker Affidavit filed on 30 March 2022 and written submissions filed by the Minister on 30 March 2022.
The applicant appeared before this Court without legal representation. The Court confirmed with him that he had received a copy of the Court Book, the Maker Affidavit and the Minister’s written submissions.
Although no formal application had been filed, the applicant seemed to suggest that he needed an extension of time because he did not have a lawyer. He advised the Court that he “could not say anything” because he “did not have a lawyer”.
The applicant’s “request” was denied.
The Court needs to be satisfied that it is in the interests of the administration of justice for an adjournment to be granted. If the Court is satisfied that an adjournment is necessary to ensure that there is a just resolution of the proceeding then the Court may exercise its discretion to grant an adjournment.
When determining whether or not an adjournment should be granted the Court will take into account the following factors:
(a)the evidence in support of the adjournment request and the explanation for the adjournment request;
(b)the parties’ choices in the litigation to date and whether the parties will be able to adequately present their case if an adjournment were not granted, such that there is a “just resolution” of the proceeding;
(c)any prejudice to the respondent that cannot be mitigated by costs; and
(d)modern principles of case management (including the avoidance of undue delay) and wastage of public resources.
(See: Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27; Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [44]).
The applicant’s “reasons” for requesting that the matter be adjourned are, arguably, so that he can find a lawyer and/or better prepare for his final hearing. While the Court is sympathetic to the concerns of all applicants who appear before this Court without legal representation (and does all that it can do to assist them), the Court notes that this matter has been on foot since 10 August 2018. There is no evidence before the Court that the applicant has ever had legal assistance, has ever sought legal assistance, is doing so now or that he will, in fact, get legal assistance. Further, the applicant has never (other than on the day of the hearing) indicated that he needed legal assistance or required an adjournment so that he could find a lawyer. Further, the Minister has prepared substantive written submissions and briefed counsel and, if the matter had been adjourned, it would have been some time before the matter could be re-listed and heard.
In the circumstances, the Court determined that it was not in the interests of the administration of justice for an adjournment to be granted.
Noting, however, that the applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal “did wrong”. This is the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Unfortunately, the applicant’s response did not address the issue of error on the part of the Tribunal. In this context, the Court is left to address the applicant’s grounds of review. This Court’s preferred approach when this occurs is to be mindful that, where an applicant is unrepresented and may not have adequate knowledge and an ability to prepare for a hearing, or understand, what is required of them, the Court should read the applicant’s grounds of review as broadly as possible and, further, remain astute to the possibility of legal error in the Tribunal’s decision and raise any concerns in that regard with the Minister: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392. Likewise, it is expected that the Minister, as a model litigant, will raise any issues of concern that might not be raised by an unrepresented applicant.
CONSIDERATION
Grounds 1 and 2
For ease of reference, grounds 1 and 2 provide:
1.The decision was made on false information recorded in immigration system. The delegate of the minister said on its decision I was illegal between 2011 to 2013 but I have evidence of legal status with me.
2.It fail to acknowledge the specialist medical report where I was going medical treatment.
By grounds 1 and 2, the applicant appears to raise concerns about the delegate’s findings in relation to his Medical visa. He stresses that the delegate relied on false information and ignored medical evidence.
This Court cannot assist the applicant in relation to the concerns articulated here as the Court has no jurisdiction (under ss 476(2)(a) and 476(4) of the Act) to review the delegate’s decision (which is a primary decision): Manandhar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1426 at [13].
Grounds 1 and 2 are, accordingly, dismissed.
Grounds 3, 4 and 5
For ease of reference, grounds 3, 4, and 5 provide (without alteration):
3.Tribunal had afforded procedural fairness to the Appellant, and/or erred in finding that the Tribunal had complied the procedures it was required to follow under the Migration Act 1958 ("the Act"). Tribunal didn’t give me the opportunity to submit my case and give oral evidence, and/or failed to comply with section 424 of the Act by not disclosing sudden adverse Information's before them. (Veal v MIMIA (2005) 225 CLR 88, paragraphs 20-24).
4.The tribunal made denial of natural justice by not considering applicants as a genuine application and all physical and mental problem faced by applicant while robbed and torture in the train.
5.The decision was made under false adverse information recorded on immigration system without giving me the opportunity to prove they were wrong.
Read broadly, by grounds 3, 4 and 5, the applicant appears to argue that the Tribunal:
(a)erred in finding that it lacked jurisdiction to hear that matter before it; and
(b)failed to afford him procedural fairness in coming to its decision.
Did the Tribunal err in determining that it lacked jurisdiction?
In Abbas v Minister for Home Affairs [2020] FCCA 1051 (“Abbas”) at [33], this Court provided a framework for assessing whether, in circumstances where an application for review by the Tribunal is filed out of time, the Tribunal was correct in determining that it lacked jurisdiction. Relevantly, in cases such as this, the Court will assess:
(a)whether (and how) the applicant was notified of the delegate’s decision;
(b)the content and clarity of the notification letter; and
(c)whether the application for review was, in fact, filed out of time.
Was the applicant notified?
Section 347(1)(b) of the Act requires that an application for review of the delegate’s decision be lodged with the Tribunal within the “prescribed period”. The prescribed period is found in reg 4.10(1)(a), which provides (emphasis added):
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;
For that 21 day period to commence, the delegate (or the Department) must notify the applicant of the decision in accordance with the requirements outlined in s 66 of the Act.
If the notification does not meet these requirements, then there has been no “notification” of the decision and the time period within which an application to the Tribunal can be made does not commence: Zhan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 469 at [62].
Section 66(1) of the Act specifies that, where the Minister refuses to grant a visa, the Minister must notify the applicant of that refusal in the prescribed way. Regulation 2.16(3) of the Regulations prescribes that the Minister must notify an applicant of the decision by one of the methods specified in s 494B of the Act.
A copy of the “notification of refusal” letter relevant to this matter is provided in the Court Book at 26-28. Having assessed that letter, the Court notes as follows.
Pursuant to s 494B(5)(b) of the Act, the Department is permitted to communicate with an applicant via email. Here, the Department sent the notification letter by email to the applicant on 13 April 2018 (Maker Affidavit, p 4).
By virtue of s 494C(5) of the Act, the applicant was deemed to have received the notification letter on the date it was sent to the email address provided by him to the Department. That is, at the end of the day on 13 April 2018.
The applicant was thus validly notified of the decision to refuse to grant him the visa.
Was the notification letter “clear”?
Section 66(2) of the Act provides that a notification of a decision to refuse an application for a visa must:
(a)if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa, specify that criterion; and
(b)if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa, specify that provision; and
(c)unless subsection (3) applies to the application, give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
(d)if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500, state:
(i)that the decision can be reviewed; and
(ii)the time in which the application for review may be made; and
(iii)who can apply for the review; and
(iv)where the application for review can be made.
Here, the notification letter and decision record clearly identified that the visa was refused because the applicant did not satisfy cl 602.215 in Schedule 2 of the Regulations (CB 26 & 30). Furthermore, the delegate provided written reasons why the criteria in cl 602.215 in Schedule 2 of the Regulations were not met (CB 29-33). Hence, the requirements outlined in ss 66(2)(a)-(c) of the Act were satisfied.
Section 66(2)(d) of the Act requires that the notification contain specific information about an applicant’s right of review. The Court is satisfied that:
(a)having stated expressly that “[t]he decision can be reviewed” and having advised the applicant that he was entitled to apply to the Tribunal for review, s 66(2)(d)(i) of the Act was satisfied (CB 26-27);
(b)having indicated that, if he sought a review, the applicant must be “physically present in Australia” (as required by s 347(3)), the notification satisfied s 66(2)(d)(iii) (CB 26); and
(c)in providing a large table indicating the address for each of the Tribunal’s registries, the national email and the national fax numbers for the Tribunal, the notification letter satisfied s 66(2)(d)(iv) of the Act (CB 28).
An important issue here is whether the notification letter satisfied s 66(2)(d)(ii) of the Act.
In this regard, the Court must consider the content and structure of the notification letter as a whole in determining whether it is sufficiently clear to be valid: Singh v Minister for Immigration & Border Protection [2020] FCAFC 31 (“Singh”).
Assessing the notification letter in this matter, the Court notes as follows:
(a)under the heading “Review Rights” it is stated that the application for review must be lodged “within 21 calendar days after the day on which you are taken to have received this letter” (CB 26). That heading and the advice beneath it directly encompasses the language of a statement referring to the time limit; and
(b)under the large table providing information about the Tribunal registries, it is stated “[a]s this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted”. A person reading the letter “as a whole”, as explained by the Full Court in Singh, would be sufficiently alert to this and would be able to identify and determine that they were required to lodge their application within 21 days after the date the letter was emailed: Ali v Minister for Home Affairs [2019] FCA 1102.
The notification of refusal letter in this matter was clear. Its layout was not confusing. Clear headings and language were used that provided effective “signposts” for the applicant to identify the information he needed in order to lodge a valid application for review.
Was the application for review, in fact, late?
In its decision (at [2]), the Tribunal correctly observed that the time in which the applicant had to lodge an application for review of the delegate’s decision was 21 days from the date on which he was notified: s 347(1)(b) of the Act and reg 4.10(1)(a) of the Regulations.
The 21 day time period commenced on 13 April 2018 and ended on 4 May 2018. The applicant lodged his application with the Tribunal on 7 May 2018. The application was, therefore, out of time.
The Court also notes that the applicant does not appear to dispute the fact that his application to the Tribunal was lodged late.
Did the Tribunal err?
The Tribunal was correct to find it did not have jurisdiction. As the Minister correctly contends in written submissions filed on 30 March 2022 (at [31]), the applicant was validly notified of the delegate’s decision and was correctly informed of his rights of review. Unfortunately, he failed to lodge his application in time. In these circumstances, the Tribunal had no jurisdiction to assess the application for review and made the only determination open to it.
Was the applicant denied procedural fairness?
In his written submissions at [21], the Minister makes the following assessment:
The Tribunal’s procedural fairness obligations under the Act, being the requirements outlined by Part 5, Division 5 of the Act, are only enlivened in the event that the Tribunal is required to review a decision which, relevant to the present proceedings, is when an application is properly made for review of a Part-5 reviewable decision in accordance with s 347. No such application was made in the present matter. In any event, to the extent the Tribunal was required to afford procedural fairness to the applicant in respect of its consideration of whether it had jurisdiction to review the application, it did so by: (1) inviting the applicant to comment on whether his application had been validly made; and (2) considering the applicant’s submissions in response.
For the reasons that follow, the Court agrees.
In circumstances where a Tribunal determines that it has no jurisdiction, such as in this case, “it is well settled” that the natural justice requirements in Part 5 of the Act do not apply: Alam v Minister for Home Affairs [2019] FCA 389 (“Alam”) at [29]. The applicant is thus not “entitled” to attend a hearing once the Tribunal determines that no valid application exists upon which a substantive determination can be made.
However, as correctly observed by the Minister (at [21] in written submissions filed on 30 March 2022), procedural fairness obligations do apply to the Tribunal’s consideration of whether it has jurisdiction: SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 (“SZEYK”) at [36]-[38] affirmed in Alam at [29]-[30].
In this case, procedural fairness required the Tribunal to give the applicant a “reasonable opportunity” to deal with the adverse information relating to the validity of the application for review: SZEYK at [37].
The applicant alleges he was not afforded that opportunity.
The Court disagrees.
On 22 May 2018, the Tribunal sent a letter to the applicant via email inviting him to comment on the validity of his application for review (CB 36-37). That letter set out the details of the information before the Tribunal as follows (CB 37):
Email: [omitted]
Dear Mr SHRESTHA
INVITATION TO COMMENT ON VALIDITY OF APPLICATION FOR REVIEW – MR SUDEEP SHRESTHA
I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Medical Treatment (Visitor) (Class UB) visa.
I am of the view that your application is not a valid application as it was not lodged within the relevant time limit. The time limit is 21 days from the day on which you are taken to have been notified of the primary decision. The primary decision was emailed to you on 13 April 2018 and, on the basis that 13 April 2018 was the date on which you are taken to have been notified, the last day for lodging the application for review was 4 May 2018. As the application was not received until 7 May 2018, it appears to be out of time.
However, this is a matter which must be determined by a Member.
If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 5 June 2018. Your application, with any comments you make, will then be referred to a Member to make a decision on your application. If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.
On 4 June 2014, the applicant replied to the invitation to comment by email (CB 41-42). In that reply, the applicant provided the following comments:
Dear Sir/Madam:
Thank you for the opportunity to provide me the comment regarding my delay application lodgement. I was not aware of 21 days’ time limit. Every time I received the letter from the immigration or court it was 28 days from the date of the letter. When I checked website it was 28 days for most visa. I didn’t see 21 days.
I am very sorry for the delay lodgement, I would like to request for the extension time for lodgement.
Thank you so much for your understanding.
Sincerely yours,
Sudeep Shrestha
The Court notes that the Tribunal did consider the applicant’s comments but found that it did “not have the authority to extend the time for the lodgement of an application for review” (at [4]).
That assessment was correct. Where an applicant lodges an application outside of the prescribed time limit, the Tribunal has no discretion to extend time: Beni v Minister for Immigration & Border Protection [2018] FCAFC 228. The Tribunal had no power to do anything other than find that it could not review the delegate’s decision and thus arrived at the only decision that was open to it.
The applicant was afforded procedural fairness to the extent required in circumstances where the Tribunal was required to determine whether it lacked jurisdiction.
No jurisdictional error arises in this regard.
Grounds 3, 4 and 5 of the application are, accordingly, dismissed.
CONCLUSION
The application for judicial review filed by the applicant on 10 August 2018 fails to identify any jurisdictional error. The Court is also unable to identify any error in the Tribunal’s decision.
The application for judicial review is dismissed.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 21 April 2022
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