SINGH v Minister for Immigration
[2018] FCCA 2292
•8 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2292 |
| Catchwords: PRACTICE AND PROCEDURE – Show cause hearing – applicant’s ground of review lacked merit – no arguable case –no jurisdictional error – application for judicial review summarily dismissed. |
| Legislation: Migration Act 1958, ss.347(1), 494C Federal Circuit Court Rules 2001, r.44.12 |
| Cases cited: AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 |
| Applicant: | GURWINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1152 of 2017 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 8 August 2018 |
| Date of Last Submission: | 8 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 8 August 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Applicant: | None |
| Counsel for the First Respondent: |
| Solicitors for the First Respondent: | DLA Piper Australia |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | DLA Piper Australia |
ORDERS
The application filed on 31 May 2017 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $3 606.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1152 of 2017
| GURWINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(ex tempore)
On 4 May 2017 the Administrative Appeals Tribunal decided that it did not have jurisdiction in this matter. That was for the simple reason that the applicant did not file his application to the tribunal within 21 days after the applicant was notified of the minister’s delegate’s decision to refuse the grant of the relevant visa application.
The question for me was whether the tribunal fell into jurisdictional error in deciding that it had no jurisdiction.
For the reasons that follow, in my view the tribunal made no error with the consequence that this application for judicial review must be dismissed.
The relevant chronology may be shortly stated.
On 30 August 2016 the applicant applied for a student (temporary) (class TU) (subclass 500) visa. The delegate took the view that the applicant failed to meet the criteria of cl 500.212 of sch 2 to the Migration Regulations. The delegate refused the visa for which the applicant applied by decision dated 13 March 2017.
On 4 April 2017 the applicant filed an electronic application for a merits review. The 21 day period prescribed by s 347(1)(b) of the Migration Act within which the applicant had to apply to the tribunal expired on 3 April 2017. The applicant applied one day out of time.
The tribunal took the view that the applicant was deemed to have received notification of the delegate’s decision on 13 March 2017. The tribunal also took the view that the applicant had until 21 days within which to file his application with the tribunal, the 21st day being 3 April 2017. It said that the application filed 4 April 2017 was filed beyond the time limited for the filing of the applicant’s application for a merits review.
I agree.
The applicant argued that his agent delayed in providing to the applicant the delegate’s decision until 17 March 2017 so that the 21 day limitation period should be calculated using 17 March 2017 as the commencement date. I disagree. In SZNZL v Minister for Immigration and Citizenship[1] Barker J of the Federal Court of Australia held that the date when the applicant actually received notification of the delegate’s decision is not relevant for the purposes of s 494C of the Migration Act. That is the case even if the delay in the provision of the notification was the migration agent’s fault, a point observed in Cheng v Minister for Immigration and Citizenship.[2]
[1] (2010) 186 FCR 271
[2] (2013) 213 FCR 362
In this case, the applicant filed his application beyond the prescribed period set out in reg 4.10. The tribunal had no jurisdiction to entertain the substantive application, as was held in SZQVV v Minister for Immigration and Citizenship[3] and in Fernando v Minister for Immigration and Multicultural Affairs.[4]
[3] [2012] FCA 871
[4] (2000) 97 FCR 407
The minister pointed out, correctly in my view, that even if the applicant’s agent had acted negligently in filing the application out of time that would not have borne upon the tribunal’s jurisdiction as was held in SZRHA v Minister for Immigration and Citizenship.[5]
[5] [2013] FCA 531
This was a show cause hearing, ordered to be heard under r 44.12 of the Federal Circuit Court Rules. That rule empowers a judge in my shoes to make a range of orders, including an order for the summary dismissal of the proceeding. Cases at the highest level including Spencer v Commonwealth of Australia[6] and AMF15 v Minister for Immigration and Border Protection[7] have held that an order for the summary dismissal of a proceeding should not be lightly made. Other cases, such as Siddique v Minister for Immigration and Border Protection[8] as well as SZTTW v Minister for Immigration and Border Protection[9] have held that even if a court is persuaded that there is little merit in an applicant’s claim, the court nevertheless possesses a residual discretion to not order the summary dismissal of the proceeding. I have kept the instructions of those cases uppermost in mind.
[6] (2010) 241 CLR 118
[7] [2016] FCAFC 68
[8] [2014] FCA 1352
[9] [2014] FCA 837
Having made those observations, in my view this was a clear case in which the tribunal had no jurisdiction. The tribunal correctly decided as much. It did not fall into jurisdictional error in reaching the decision that it did. To the contrary, the tribunal decided in the manner the legislation and case law required.
I dismiss this proceeding and order the applicant to pay the minister’s costs in the sum of $3 606.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 17 August 2018
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