Singh v Minister for Immigration - [2017] FCCA 2265

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2265

Catchwords:

MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal erred in finding that it had no jurisdiction to review the decision of a delegate of the first respondent refusing the applicant’s visa application – whether the applicant’s application for review of a decision of a delegate of the first respondent was filed outside the mandatory time limit – whether the Administrative Appeals Tribunal erred in failing to comply with section 360 of the Migration Act 1958 (Cth) – whether the decision of the Administrative Appeals Tribunal was affected by bias whether the applicant was properly notified of the delegate’s decision to refuse his application – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.347, 360 , 494B, 494C
Migration Regulations 1994 (Cth), reg.4.10

Cases Cited:
Murphy v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 657
Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172

Applicant:

GAGANDEEP SINGH

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 3743 of 2016

Judgment of:

Judge Emmett

Hearing date:

12 September 2017

Date of Last Submission:

12 September 2017

Delivered at:

Sydney

Delivered on:

12 September 2017

REPRESENTATION

Applicant appeared in person

Solicitors for the Respondents:

Mr Lenny Leerdam
DLA Piper Australia

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 3743 of 2016

GAGANDEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

By application filed on 28 December 2016 the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 5 December 2016 in which the Tribunal found that it has no jurisdiction to conduct a review of a decision of a delegate of the first respondent (“the Delegate”) dated 8 August 2015 refusing the applicant a partner visa.
The issue is whether the applicant was properly notified of the Delegate’s decision to refuse his visa application such that the Tribunal was correct to find that it had no jurisdiction to conduct a review of the Delegate’s decision.
The background of this matter and the decision of the Tribunal are accurately summarised in the first respondent’s written submissions at paragraphs 2 to 11 as follows:
“Background
2 The applicant is a male citizen of India. He arrived in Australia on a Student (Temporary) visa on 17 November 2008.
3 The applicant applied for a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) (Subclass 801) visa, via his agent, on 26 September 2012. Relevantly, the application form stated the applicant's address as “7/1 Reid Avenue, Westmead, NSW 2145”.
4 The application was refused by a delegate of the first respondent on 8 April 2015. The delegate found that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FCCA 2265
Decision Date: 12 September 2017

CaseChat Overview and Summary

In this matter before Emmett J of the Federal Court of Australia, the applicant, Mr Singh, sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT). The AAT had determined that it lacked jurisdiction to review a decision by a delegate of the Minister for Immigration to refuse Mr Singh's visa application. Mr Singh contended that the AAT's decision was affected by jurisdictional error.

The legal issues before the Court were whether the AAT erred in finding that it had no jurisdiction to review the delegate's decision, specifically concerning whether Mr Singh's application for review was filed outside the mandatory time limit. Further, the Court considered whether the AAT failed to comply with section 360 of the *Migration Act 1958* (Cth) and whether the AAT's decision was affected by bias. A related question was whether Mr Singh had been properly notified of the delegate's decision to refuse his application.

Emmett J reasoned that the AAT was entitled to find that Mr Singh had been notified of the delegate's decision on 17 April 2015, as a letter dated 8 April 2015, advising of the refusal, was sent by registered post to the address provided by Mr Singh for correspondence. Although the letter was returned to the Department marked "Unclaimed," the AAT noted a file note of a telephone call on 27 May 2015 where Mr Singh confirmed the address and was verbally advised of the refusal letter. The AAT also found that no substantive reason was provided for the mail being returned unclaimed. Consequently, the AAT correctly determined that the mandatory 21-day period for lodging an application for review expired on 8 May 2015, and Mr Singh's application, filed on 8 August 2016, was lodged significantly out of time. The Court found no jurisdictional error on the part of the AAT.

The application was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The background of this matter and the decision of the Tribunal are accurately summarised in the first respondent’s written submissions at paragraphs 2 to 11 as follows:“Background2 The applicant is a male citizen of India. He arrived in Australia on a Student (Temporary) visa on 17 November 2008.3 The applicant applied for a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) (Subclass 801) visa, via his agent, on 26 September 2012. Relevantly, the application form stated the applicant's address as “7/1 Reid Avenue, Westmead, NSW 2145”.4 The application was refused by a delegate of the first respondent on 8 April 2015. The delegate found that the applicant did not satisfy clause 801.221 of the Migration Regulations 1994 (Cth) (Regulations). The delegate found that that the applicant was not the spouse or de facto partner of the applicant's sponsor, as defined under sections 5F and 5CB of the Act.4.1 The applicant was notified of the decision by registered letter dated 8 April 2015, dispatched by post on 9 April 2015, the following day. The letter was sent to the applicant's address for service provided to the department as listed on the application.4.2 The letter was, however, returned to the Department on 25 May 2015, and marked as “Unclaimed”.5 The applicant applied to the AAT for review of the delegate's decision on 8 August 2016. In that application for review, the applicant listed his residential address and address for correspondence again as “7/1 Reid Avenue, Westmead, NSW 2145”. The application also enclosed a copy of the delegate's decision and notification of decision.6 The AAT determined that it did not have jurisdiction in this matter, on 5 December 2016.The decision of the AAT7 Pursuant to section 347(1)(b) of the Act, and regulation 4.10 of the Regulations, an application for review of the delegate's decision must be made within 21 days after the applicant was notified of the decision (at [3])].8 The AAT found that the applicant had been notified of the delegate's decision on 17 April 2015, in accordance with the Act and regulations (at [4]).8.1 The Tribunal found that the applicant had been notified of the decision by registered post by letter dated 8 April 2015, being the address provided to the department as the applicant's address for correspondence (at [4]).8.2 The AAT noted that the letter had been returned to the Department on 25 May 2015 marked “unclaimed”. However, the AAT also noted the file note on the Department's file of a telephone call of 27 May 2015 in which the applicant confirmed his address, as the address to which the letter had been sent. The file note also records that the applicant was verbally advised that a letter had been sent to him on 8 April 2015 advising that his application was refused (at [6]).8.3 The Department file records that the next contact from the applicant was 2 August 2016 (at [6]).8.4 The AAT noted that it had received a submission dated 21 November 2016 that the applicant did not receive the decision of the delegate. However, the AAT found that the letter had been sent to the correct address, in accordance with the statutory requirements, and noted that no substantive reason was given as to why the mail was returned “unclaimed” (at [5]).9 The AAT found that, in accordance with section 494C of the Act, the applicant was taken to have been notified of the decision on 17 April 2015 (at [7]).10 The AAT found that, based on this notification, the prescribed period in which the application to the AAT could have been made ended on 8 May 2015 (at [7]).11 The AAT therefore found that it had no jurisdiction in this matter (at [8]).”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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