SINGH v Minister for Home Affairs

[2018] FCCA 3686

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3686

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for review lodged outside of required time – whether the applicant was notified of the decision in accordance with the statute – whether the Tribunal had jurisdiction to consider the review – whether the Tribunal complied with the requirements of procedural fairness – whether the Tribunal complied with its statutory obligations – no arguable case of jurisdictional error made out – application dismissed under r 44.12 of the Federal Circuit Court Rules.  

Legislation:

Administrative Appeals Act 1975 (Cth), s.29

Federal Circuit Court Rules 2001 (Cth), r.44.12

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

Migration Regulations 1994 (Cth), rr.4.10, 485.244

Applicant: ANGRAJ SINGH

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2033 of 2018

Judgment of: Judge Street

Hearing date: 12 December 2018

Date of Last Submission: 12 December 2018

Delivered at: Sydney

Delivered on: 12 December 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr S Valliappan
DLA Piper

ORDERS

1. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,667.00.

DATE OF ORDERS: 12 December 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2033 of 2018

ANGRAJ SINGH

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 20 June 2018 holding that the Tribunal did not have jurisdiction to review a decision of the delegate made on 27 April 2018 refusing to grant the applicant a Skilled (Provisional) (Class VC) visa.

2. The applicant is a citizen of India. The applicant applied for the visa on 13 December 2017. On 27 April 2018, the delegate found the applicant did not satisfy the requirements of r 485.224 of the Migration Regulations 1994 (Cth) (“the Regulations”).

3. That decision was notified to an email address provided by the applicant in his application for the visa which was also the email address provided by the migration agent representing the applicant in the application for the visa. The application for review to the Tribunal was filed six days outside the 21-day period provided under s 347(1)(b) of the Act and r 4.10 of the Regulations.

4. The Tribunal wrote to the applicant on 30 May 2018 explaining that the application for a review was lodged 6 days outside the relevant period and giving the applicant an opportunity to put submissions as to why the Tribunal had jurisdiction.

5. The applicant’s migration agent put on submissions dated 12 June 2018 identifying the steps taken by the migration agent to send the decision to the applicant and an alleged problem in receipt of that by the applicant. Nothing in the submissions to the Tribunal advances any basis upon which it could be said there was any fraud by the agent, let alone any fraud upon the Tribunal. The Tribunal identified the applicant’s response. The Tribunal identified the statutory requirements and the notification of the authorised recipient identified by the applicant in the application for the visa and found, in accordance with the statutory requirements, that the applicant had been notified of the decision on 27 April 2018.

6. It was in those circumstances that the Tribunal found that the prescribed period for the application for review ended on 18 May 2018 and that the application to this Court was made outside that prescribed period having been filed on 24 May 2018. The Tribunal found in the circumstances it did not have jurisdiction in respect of the applicant’s application.

Before this Court

1. These proceedings were commenced on 19 July 2018. The applicant has filed an amended application on 16 October 2018 alleging a fraud by the agent. The applicant has also filed submissions in a proposed further amended application in which the applicant alleges that there was power for the Tribunal to extend time under s 29 of the Administrative Appeals Tribunal Act 1975.

2. At the commencement of the hearing the Court explained to the applicant that the matter was fixed to a show cause hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). The applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant contended that he had progressed his studies and that the notification problem was not his fault but was that of the agent, and the applicant contended that he had made progress in his course and should be allowed to pursue his application for the visa.

4. This Court has no power to review the merits of the application. The Court cannot decide the matter on compassionate or discretionary grounds. The proposition that the Tribunal could extend time under s 29 of the Administrative Appeals Tribunal Act1975 (Cth) is incorrect. As s 347 of the Act identified, a mandatory condition for the making of a valid application s 29 of the Administrative Appeals Tribunal Act1975 (Cth) had no application to that provision. The Tribunal was correct to find it had no jurisdiction. The applicant’s contention that the Court could extend time is misconceived. Neither the Court nor the Tribunal had power to extend time. The proposed amended application filed on 10 December 2018 and supporting submissions seek to rely upon a decision that a Full Court of the Federal Court of Australia has already identified is plainly wrong.

5. No arguable case of relevant error by the Tribunal is made out by the submissions filed by the applicant or the proposed amended application filed on 10 December 2018. In those circumstances, Court is not satisfied that it is appropriate to grant leave for the filing of the same or to fix the matter for hearing on another occasion.

6. The amended application filed on 16 October 2018 is also an application that required leave to be relied upon. There is no evidence to support the assertion of fraud by the agent. At the highest, if accepted, in relation to the assertions concerning the difficulties in notification and receipt of the email, there may have been incompetence or negligence, but it does not identify any arguable case of fraud upon the Tribunal. In these circumstances, the Court sees no proper basis to grant leave to rely upon the amended application filed on 16 October 2018.

The grounds

1. The originating application that was filed in the Court advanced two grounds:

   1. Administration Appeals tribunal erred in deciding to dismiss the review Application of the Applicant.

   Particulars

   a. The applicant applied for Temporary Graduate ( class VC) Temporary Graduate (Graduate Work) (subclass 485) visa. The application was dismissed by the delegate of minister on 27 April 2018 as the applicant did not meet clause 485.224 by not providing result of skill assessment.

   b. The applicant applied for extension of time for providing the results of skill assessment as he had no control over when Trades Recognition Australia will release the results, the decision maker did not give extension and refused the visa application.

   c. The applicant applied for merit review in Administrative Appeals Tribunal where honourable member of the Tribunal affirmed the delegates decision.

   d. The applicant did not receive the decision in time and as soon as he received the decision he applied for merit review.

   e. The tribunal did not accept this argument and refuse to hear the applicant's case on the basis of lack of jurisdiction.

   2. The Administrative Appeals Tribunal denied the applicant 'Natural Justice' and 'Procedural Fairness'.

   Particulars

   a. The Applicant was not given time to wait for the decision from trades recognition Australia on his skill application. He applied for extension which was granted for two weeks only. When applied for another extension on the basis that TRA is taking longer than expected to make decision, the request was ignored, and visa application was refused.

   b. The visa officer failed to understand that the result was beyond applicants control.

   c. When applying to AAT the tribunal failed to understand that the applicant did not receive the decision on time and as soon as he received the decision he lodged an application for review.

   d. By not giving the applicant extension for submitting skill assessment result, the delegate of the minister denied the applicant natural justice and procedural fairness.

   e. By not accepting the review application the Administration Appeals Tribunal denied the applicant 'natural justice' and 'procedural fairness.'

Ground 1

1. The first ground asserts that the Tribunal had erred in dismissing the application. For the reasons earlier given the Tribunal was correct in finding it had no jurisdiction. No arguable case of jurisdictional error is made out by ground 1 of the originating application.

Ground 2

1. Ground 2 complained in relation to the requirements of procedural fairness. The applicant was notified by the Tribunal of the issue concerning the want of jurisdiction and the applicant had the opportunity of putting submissions in that regard. There was no denial of procedural fairness. 

2. In the circumstance of the present case, given the applicant had the opportunity to and did respond to the Tribunal’s invitation to comment on the validity, the Tribunal’s conclusion that it had no jurisdiction for the reasons earlier given was correct. No arguable case of jurisdictional error is disclosed by ground 2.

3. The originating application to the Court and the proposed amended applications all failed to identify any arguable case of jurisdictional error.

Conclusion

1. As the application fails to disclose any arguable case of jurisdictional error, the Court is satisfied that this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Rules. Accordingly, the application is dismissed under r 44.12 of the Rules.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 11 January 2019