SINGH v Minister for Immigration
[2014] FCCA 1880
•24 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1880 |
| Catchwords: MIGRATION – Migration Review Tribunal – application to tribunal filed out of time – tribunal had no jurisdiction to consider the application. |
| Legislation: Migration Act 1958, ss.347, 348, 494B(5)(b), 494C(5) Migration Regulations 1994, cl.885.213 of Sch. 2, reg.4.10(1)(a) |
| First Applicant: | JASPAL SINGH |
| Second Applicant: | KAWALJIT KAUR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 271 of 2014 |
| Judgment of: | Judge Riley |
| Hearing date: | 24 July 2014 |
| Date of last submission: | 24 July 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 24 July 2014 |
REPRESENTATION
| Counsel for the First Applicant: | The first applicant appeared in person |
| Solicitors for the First Applicant: | The first applicant was not represented |
| Counsel for the Second Applicant: | The second applicant appeared in person |
| Solicitors for The Second Applicant: | The second applicant was not represented |
| Solicitor Advocate for the First Respondent: | Christopher McDermott |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
Pursuant to rule 44.12 of the Federal Circuit Court Rules 2001, the application filed on 18 February 2014 be dismissed.
The applicants pay the first respondent’s costs of the proceeding fixed in the sum of $1,750.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 271 of 2014
| JASPAL SINGH |
First Applicant
| KAWALKIT KAUR |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is a show cause hearing in a migration matter. The applicants have applied for review of a decision of the Migration Review Tribunal. In that decision, the Tribunal found that it had no jurisdiction to hear the applicants’ case because the application was lodged out of time.
The history of the matter is that the applicants are citizens of India. The first applicant, who is the husband of the second applicant, is the principal visa applicant. On 21 November 2012, he applied for a Skilled Independent (Class VB) (subclass 885) visa.
On 21 November 2013, a delegate of the Minister refused to grant the application. The delegate considered that the applicants had not provided evidence that the principal applicant had competent English. The first applicant had not provided an IELTS test score, which was required pursuant to cl.885.213 of Sch. 2 to the Migration Regulations 1994.
The delegate’s decision was apparently sent to a particular email address, being [email protected]. That was the email address nominated by the first applicant as the address to which he wanted correspondence concerning his application to be sent. The first applicant acknowledged in court today that he had, in fact, received the delegate’s decision on 21 November 2013.
The applicants then applied to the Tribunal for review of the delegate’s decision on 17 December 2013. The Tribunal considered that the application was late. The Tribunal calculated that the application to it should have been lodged no later than 12 December 2013. The application to the Tribunal on that calculation was five days late.
The Tribunal wrote to the applicants inviting them to comment on the view that the Tribunal did not have jurisdiction given that the application was made more than 21 days after the delegate’s decision had been notified to the applicants. The applicants responded saying that they had exceptional circumstances consisting of the first applicant suffering from gallstones and being in serious pain during the relevant period.
The Tribunal went ahead and concluded that it had no jurisdiction in the matter.
The application to this court was filed on 18 February 2014. The applicants were not represented. The grounds of the application are as follows:
1.S.447, Judicial review can be lodged within 35 days after tribunal review has been finalised
2.I am not happy with tribunal decision, applying for judicial review for legitimate decision
3.I do have exceptional circumstances beyond the application lodgement previously
4.I have missed the timeframe to apply the review at Migration Review Tribunal
5.I don’t have hope that Tribunal will accept my application as valid application, please see my MRT application receipt
The application was supported by an affidavit, sworn by the first applicant, saying that he was not happy with the delegate’s decision and saying that he had unspecified exceptional circumstances. The affidavit also included a number of medical certificates indicating that the first applicant was unwell at the relevant time.
The Migration Act 1958 imposes strict time limits on the review of decisions of the delegate. Under s.348 of the Act, the Tribunal is required to review MRT-reviewable decisions that are properly made. Under s.347 of the Act, an application for review to the Tribunal must be given to the Tribunal within the prescribed period. That is a period that is not to be more than 28 days after the notification of the decision.
However, the Regulations have provided for a somewhat shorter lodgement period. Regulation 4.10(1)(a) provides that the application must be given to the Tribunal within 21 days of the applicant receiving notice of a decision. That is an obligatory time frame and there is no discretion in the Tribunal to extend that time frame.
The applicant did, in fact, acknowledge before the court today that he received a copy of the delegate’s decision on 21 November 2013. It was sent to him via email. Under s.494B(5)(b) of the Act, the Minister may give a document to an applicant by email. Under s.494C(5) of the Act, a person is taken to have received an email at the end of the day on which the document was transmitted.
A consequence of those provisions is that the first applicant is taken to have received the delegate’s decision on 21 November 2013. He was required to make any application to the Tribunal within 21 days. The Tribunal did not have any discretion to extend the time for the lodgement of applications. The Tribunal in this case correctly calculated the deadline as 12 December 2013. As the applicants did not lodge their application with the Tribunal until 17 December 2013, the application was out of time. The Tribunal correctly held that it had no jurisdiction.
The first applicant before the court today reiterated that he had health issues at the relevant time and he also said that he has now got an acceptable IELTS test score. However, the court is not able to take into account his recently obtained test score and there is nothing to be gained by remitting the matter to the Tribunal because the Tribunal will not be able to take into account the first applicant’s recently obtained IELTS test score. The requirement was that the test be satisfactorily undertaken in the three years prior to lodging the application with the Department. So, although the applicant was only a few days late with his application to the Tribunal and although he might now satisfy the IELTS requirements, it can make no difference to this particular case.
In all the circumstances, I am not satisfied that the applicant has an arguable case. Consequently, the court must dismiss the application.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 21 August 2014
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