Singh v Minister for Home Affairs

[2020] FCCA 3180

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 3180

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Student (Temporary) (Class TU) visa – where application for review filed out of time – where Tribunal found it had no jurisdiction – whether the Tribunal failed to take into account the applicant’s circumstances – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.66, 347, 476

Migration Regulations 1994 (Cth) reg.4.10.

First Applicant: PRABHJEET KAUR

Second Applicant: KULBIR SINGH

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 130 of 2020

Judgment of: Judge Street

Hearing date: 20 November 2020

Date of Last Submission: 20 November 2020

Delivered at: Sydney

Delivered on: 20 November 2020

REPRESENTATION

The applicant appeared in person via Microsoft Teams.

Solicitors for the Respondents: Mr H McLaurin, MinterEllison, via Microsoft Teams.

ORDERS

1. The application is dismissed

2. The applicants pay the first respondent’s costs fixed in the amount of $6,000.00.

DATE OF ORDER: 20 November 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 130 of 2020

PRABHJEET KAUR

First Applicant

KULBIR SINGH

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 13 April 2020 holding that it did not have jurisdiction in respect of a decision of a delegate of the first respondent (“the Delegate”) refusing to grant the applicants Student (Temporary) (Class TU) visas.

2. The first applicant applied for the visa and the second applicant is her husband and was included in the application for the visa.

3. The Delegate’s decision was notified by email to the email address provided by the applicant in accordance with the statutory regime on 3 June 2019. The email complies with the requirements of s 66(2)(d) of the Act and is not one that suffers from any vice of the kind that had been identified in decisions of the Federal Court of Australia as identified in the Minister’s submissions. 

4. The Tribunal in the present case found that the application had not been lodged within the time required under s 347(1)(b) of the Act and reg 4.10 of the Migration Regulations 1994 (Cth) (“the Regulations).

5. The Tribunal wrote to the applicant on 2 October 2019, drawing to the applicant’s attention the issue of invalidity because of the failure to comply with the 21 day time limit, and the Tribunal received a response from the applicant asserting that she had become confused and that she had a daughter who was sick. 

6. The Tribunal had no discretionary power to extend time or compassionate power to extend time. The Tribunal correctly identified the statutory requirements in respect of the time period and correctly found that the applicant was notified of the decision on 3 June 2019 in accordance with the statutory regime and accordingly, the prescribed period for review ended on 24 June 2019. The application for review was not lodged until 1 July 2019. 

7. In those circumstances, the Tribunal was correct to find that it had no jurisdiction. 

Before the Court

1. These proceedings were commenced on 30 April 2020. On 14 May 2020, a Registrar of the Court made orders fixing the matter for hearing and giving the applicants an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed. 

2. At the commencement of the hearing, the Court explained to the first applicant the nature of the hearing and the first applicant confirmed that she understood the explanation given by the Court. 

3. The first applicant referred to being confused as well as referring to her sick daughter and that she needed her visa to continue her study.  The Court, just like the Tribunal, has no power, to determine the matter on compassionate or discretionary grounds. 

4. Nothing said by the applicant identified any jurisdictional error.

The grounds

1. The grounds in the application are as follows:   

   1.I was born on 18/05/1989

   2.I am currently on Bridging Visa A

   3.I Prabhjeet Kaur and my partner Kulbir Singh have applied for a student visa on 22/03/2019. The visa application was refused by Department of Home Affairs on 03/06/2019 and Administrative Appeals Tribunal gave a no jurisdiction decision on 13/04/2020.

   4.In my opinion DIBP and AAT made the judicial error in refusing my application as both the authorities overlooked my circumstances.

2. The first three grounds fail to articulate anything that could be said to be a jurisdictional error. 

3. The fourth ground asserts that the Tribunal overlooked the applicant’s circumstances. 

4. The applicant’s circumstances were not relevant in the context of the mandatory requirement that the application had to be made within 21 days of notification. The Tribunal was correct in finding that the applicant had been validly notified and complied with the requirements of procedural fairness.

5. There was no jurisdictional error as alleged in ground four. 

6. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 20 November 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 10 December 2020