Singh v Minister for Home Affairs

[2019] FCCA 198

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 198

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – Tribunal finding that it lacked jurisdiction as review application lodged out of time – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), s.29
Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.347, 474, 494B, 494C

Migration Regulations 1994 (Cth)

Cases cited:

Beni v Minister for Immigration [2018] FCAFC 228

Applicant: AWTAR SINGH

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1026 of 2018

Judgment of: Judge Driver

Hearing date: 1 February 2019

Delivered at: Sydney

Delivered on: 1 February 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms E Warner Knight of Australian Government Solicitor

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1026 of 2018

AWTAR SINGH

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction and background

1. The applicant, Mr Singh, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 9 March 2018.  The Tribunal found that it did not have jurisdiction in the matter, because of the late lodgement of Mr Singh’s review application. 

2. Background facts relating to this matter are set out in the Minister’s outline of legal submissions, filed on 25 January 2019. 

3. Mr Singh is a 59 year old citizen of India.  He entered Australia on 30 November 2000 on a visitor visa.  He has not held a substantive visa since the expiry of the visitor visa in 2001.

4. Mr Singh applied for and was refused various other visas (it is not appropriate to list them all but they include a business visa and, more recently, a previous application for a medical treatment visa).  He was unsuccessful in numerous proceedings at first instance and on appeal associated with judicial review of the decisions refusing him visas.  A summary of Mr Singh’s immigration and litigation history is set out in the decision of the delegate of the Minister (delegate).[1]

   [1] Book of Relevant Documents (RD) 19-20

5. On 19 December 2017, Mr Singh applied for the visa on the basis that he was suffering from anxiety and hypertension.

6. The delegate found that Mr Singh did not meet the requirements of clause 602.215 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), ie, that he “genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted”, and refused to grant the visa. The decision to refuse the visa was notified to Mr Singh on 15 January 2018 by email to the email address provided in the visa application.[2]

   [2] RD 2, 14 and 45

7. The notification letter advised that Mr Singh had 21 calendar days “from the day on which you are taken to have received this letter”.[3]

   [3] RD 14

8. Mr Singh sought review by application to the Tribunal on 12 February 2018, ie, seven days outside the statutory time limit.

9. On 16 February 2018 the Tribunal sent Mr Singh an invitation to comment on the validity of the review application.[4]  Mr Singh did not respond to the invitation to comment.

   [4] RD 41-42

10. The Tribunal found that it did not have jurisdiction to review the delegate’s decision because the application was outside statutory time limits and notified Mr Singh on 9 March 2018. It reasoned as follows:[5]

    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.

    The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 15 January 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

    The Tribunal finds that the applicant is taken to have been notified of the decision on 15 January 2018. Therefore the prescribed period to apply for review ended on 5 February 2018.

    As the application for review was not received by the Tribunal until 12 February 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.

    [5] RD 48 at [2]-[5]

The present proceedings

1. These proceedings began with a show cause application filed on 12 April 2018.  Mr Singh continues to rely upon that application.  There are three grounds in it: 

   1.The Tribunal had no jurisdiction to make the said decision because its "reasonable satisfaction" was not arrived in accordance with the provisions of the Migration Act.

   2.The Tribunal failed to exercise its jurisdiction: It was error for the Tribunal to assess the application without allowing applicant to present his arguments.

   3.The Tribunal fell into jurisdiction error by misinforming itself as to the true nature of the applicant's evidence and thereby incorrectly dealt with the review application.

2. The application is supported by a short affidavit filed with it.  I received [1] of that affidavit as evidence, and [2] as a submission.  I also have before me as evidence the book of relevant documents, filed on 4 June 2018. 

3. As is noted in the Minister’s submissions, the only issue before the Court is whether the Tribunal was correct to conclude that it did not have jurisdiction to conduct a review. 

4. There is no doubt that Mr Singh applied to the Tribunal outside the prescribed period for launching a review application.  This assumes that Mr Singh was properly notified of the delegate’s decision.  There is nothing before me to indicate that there was any irregularity in that notification. 

5. Mr Singh is concerned that he lost his opportunity for merits review before the Tribunal, but he was not able to point to anything to indicate an argument that the Tribunal’s decision was affected by any jurisdictional error. 

6. In his submissions in reply, Mr Singh asked me to look at a letter he received from the Tribunal by email on 10 September 2018.  I examined Mr Singh’s phone in order to read that letter.  The letter is an invitation to participate in a survey following the conclusion of Mr Singh’s case.  The letter has no impact on these proceedings.

7. I otherwise agree with the Minister’s submissions in relation to this case. 

8. There is no reason to doubt that the Tribunal was correct to find that it lacked jurisdiction.[6] The delegate’s decision was sent to Mr Singh’s email address on 15 January 2018, which was the email address on Mr Singh’s original visa application and remains his current email address, in accordance with s.494B(5) of the Migration Act 1958 (Cth) (Migration Act). Pursuant to s.494C(5) of the Migration Act, Mr Singh is taken to have received the decision at the end of the day on which it was sent.

   [6]     Furthermore, the Full Federal Court in Beni v Minister for Immigration [2018] FCAFC 228 has recently confirmed that Tribunal does not have the power to extend the time within which an application may be brought to seek review of a decision by reason of s.29(7) and s.29(8) of the Administrative Appeals Tribunal Act 1975 (Cth)

9. Mr Singh applied to the Tribunal on 12 February 2018. As noted in the Tribunal’s reasons, pursuant to s.347(1)(b) of the Migration Act and regulation 4.10 of the Regulations, the application for review must be submitted within 21 days after notification of the delegate’s decision. The prescribed period to apply for review ended on 5 February 2018, so Mr Singh was outside the time limit by seven days.

10. As the decision of the Tribunal that it had no jurisdiction was correct, it is a “privative clause decision” within s.474 of the Migration Act.

Conclusion

1. I conclude that Mr Singh is unable to establish an arguable case of jurisdictional error by the Tribunal. I will therefore order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied when the application was filed.  Mr Singh did not wish to be heard on costs.

3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:       5 February 2019