Singh v Minister for Immigration

[2013] FCCA 1310

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1310

Catchwords:
MIGRATION – Application for extension of time for judicial review – review of Migration Review Tribunal decision – costs.

Legislation:  
Migration Act 1958 (Cth), ss.477, 348(1), 347, 66, 494

Migration Regulations, regs.4.10(1), 2.16

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348 to 349
Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCR 657
Xie v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCAFC 172
SZJQC v Minister for Immigration and Citizenship & Anor [2008] HCASL 66 S427/2007
Tay v Minister for Immigration and Citizenship and Another [2010] FCAFC 23
SZFDE and Others v Minister for Immigration and Citizenship and Another [2007] HCA 35

Applicant: PUNINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 82 of 2013

Judgment of: Judge Jones

Hearing date: 9 July 2013

Date of Last Submission: 9 July 2013

Delivered at: Melbourne

Delivered on: 13 September 2013

REPRESENTATION

Counsel for the Applicant: In Person together with  Mr Kumar (friend of the Applicant)

Solicitors for the Applicant: Not Applicable

Counsel for the Respondents: Mr Knowles

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application for an extension of time pursuant to section 477(2) of the Migration Act 1958 (Cth) is refused.!Unexpected End of Formula

2. The applicant pay the first respondents costs of $6,646.00 within 21 days of the date of this Order.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 82 of 2013

PUNINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for an extension of time to proceed with an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 30 July 2012, which decided it lacked jurisdiction to review a decision of a delegate of the Minister to refuse to grant the applicant a Skilled Independent Overseas Student (Residences) (Class DD) visa (“skilled migration visa”).

2. As the application was made on 22 January 2013, the application was some 4 months outside the 35 day limit provided under s.477(1) of the Migration Act 1958 (“the Act”).

3. Section 477 relevantly provides:

   “(1)An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

   (2)The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

   (a)an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b)the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

   (3)In this section:

   date of the migration decision means:

   ........................................

   (b)in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal—the date of the written statement under subsection 368(1) or 430(1); or

   ..........................................

   (4)For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).

   (5)To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.”

4. In his application for judicial review, the applicant set out the grounds for review as follows:

   “1.I was financially poor so I was organising the funds for the lawyer.

   2.As the MRT file was lodged out of time by my agent I wrote back to them stating that its lawyers fault and was waiting for the decision which they made on 14 January 2013.”

5. In the applicant’s affidavit filed 22 January 2013 the applicant deposed:

   “1.    That my MRT file should be lodged.

   2.Should be able to get some compensation amount from my lawyers attached a copy of the decision made on 30 July 2012.”

6. As the first respondent correctly observes in its submissions, the discretion provided to the Court to extend the 35 day period is appropriately informed by consideration of factors which include the reason(s) for the delay and whether the reasons are unacceptable, any prejudice suffered by the respondent, and the merits of the substantive application.

7. The Court is satisfied that the approach set by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen[1] is one which ought appropriately inform this Court in the exercise of its discretion.

   [1] (1984) 3 FCR 344, 348 to 349

Background

1. The applicant is an Indian citizen. He arrived in Australia in 2006, it appears from his submission under a student visa.

2. On application for the skilled migration visa, the applicant authorised the Minister to communicate with him via email, (…[email protected]) (Court Book (“CB”) 4). At the hearing the applicant confirmed that this was his email address. The Court notes that various requests for information from the Minister’s delegate were sent to the applicant by email to his email address and the applicant was responsive to those requests (CB 57-68, 101-106, 123-127). This email trail occurred over the period from the date of the applicant’s application for the visa to around 30 April 2012.

3. On 18 April 2012 a delegate of the Minister refused to grant the applicant a skilled migration visa. On this same date, the delegate sent to the applicant a copy of the delegate’s decision record and other documents to the email address provided by the applicant in his application for the skilled visa; namely, …[email protected]. The decision and other documents attached to this email:

   ·Specified, in respect of his unsuccessful application for a skilled visa, the visa criterion which the applicant had not satisfied (CB 110);

   ·Gave written reasons why the applicant had not satisfied that visa criterion (CB 109-111);

   ·Stated that the delegate’s decision was reviewable by the Tribunal (CB 107); and

   ·Stated how, when and where the applicant could apply to the Tribunal for review of the delegate’s decision (CB 107-108 and 112-115).

4. On 16 May 2012 the applicant applied to the Tribunal for review of the delegate’s decision. In his application the applicant:

   ·Gave his personal contact details (CB 129);

   ·Gave his representative’s details, being a Ms Siedlecka (CB 134);

   ·Specified that the correspondence to him be sent to the address of the representative (CB 135);

   ·Provided details of a credit card to pay the prescribed fee in the name of Narinder K Sharma (CB 136).

5. The applicant clarified in the hearing that Mr Sharma was in fact the migration agent representative. It is noted that correspondence (acknowledging receipt of the application) from the Minister’s delegate, was sent to the address provided by the applicant in his application to the Tribunal for review. That correspondence stated the Tribunal received his application on 16 May 2012 (CB 141).

6. There is a case note (number 7557362) dated 22 May 2012, which records that the applicant came to the Tribunal front counter to discuss his application and that the delegate advised the applicant that it appeared his application was lodged out of time. The applicant was further advised that he would be provided with an opportunity to comment on the validity of the application (CB 150).

7. On 24 May 2012, the applicant advised the Tribunal of a change of contact details, now his own and provided his residential address (CB 151 to 152).

8. By correspondence dated 5 June 2012, sent to the applicant’s residential address, the Tribunal advised the applicant that it had formed a preliminary view that his application was not a valid application as it was not lodged within the relevant time limit, being 21 days from the day on which he had been taken to have been notified of the primary decision (CB 153).

9. By correspondence dated 21 June 2012 to the Tribunal, a Mr Peter Vlohos, Barrister and Solicitor informed the Tribunal that he had been requested to act on the applicant’s behalf (an authorisation form 956 was enclosed). In that correspondence the writer stated that according to the applicant’s instructions he was advised by his then migration agent to appeal the rejection of his visa by way of application to the Tribunal. The applicant agreed with this advice instructing his agent to proceed. The applicant paid the required fees for the appeal and was told by the agent that the appeal would be submitted to the Tribunal within the time allowed. The correspondence acknowledges that the period allowed for the appeal was 21 days after the applicant is taken to have been notified of the decision, that the decision was delivered by email to the applicant on 18 April 2012 and that, as the application for review by the Tribunal was submitted on 16 May 2012, it was 7 days outside the time limit. The writer went on to state:

   “…

   We are of the opinion that the Tribunal should allow Mr. Singh the opportunity to present his case to the Tribunal. The lateness of his Application was not his creation but that of his former Migration Agent. Mr. Singh has had difficulty in recent times with his health, suffered depression and despite this he has continued to view matters as far as they concern his day to day life in Australia with a positive outlook. We have, if required by the Tribunal his current and recent past Medical history.

   …”

10. By correspondence dated 31 July 2012, the Tribunal sent notification of the decision of the Tribunal dated 30 July 2012 to the applicant’s authorised representative, Mr Vlahos at his business address. The notification stated that the Tribunal had no jurisdiction to determine the application (CB 160-161). Attached to this correspondence was a fact sheet which informed the applicant of his right to seek judicial review by this court (CB 162-163).

11. By correspondence dated 17 August 2012, the applicant’s legal representative sought ministerial intervention pursuant to section 351 of the Act (CB 171-172).

12. By correspondence dated 6 September 2012 the applicant was advised that as the Tribunal has not made a decision, the Minister lacked power to exercise his discretion under section 351 (CB 174-175).

13. On 28 November 2012, the applicant’s solicitor emailed the Tribunal requesting it to reconsider its decision that it lacked jurisdiction to deal with the applicant’s application for review (CB 180-181).

14. By correspondence dated 14 January 2013, addressed to the applicant’s legal representative, the applicant was advised that the Presiding member of the Tribunal, “has decided not to reopen this case” (CB 188).

Tribunal decision

1. The Tribunal found that the applicant had not applied to the Tribunal within the period of time prescribed by the Act and the Migration Regulations 1994 (Cth) (“the Regulations”); being 21 days from the date on which the applicant had been notified of the delegate’s decision (CB 166 [16]). The Tribunal held that the applicant had been notified of the delegate’s decision on 18 April 2012 and had therefore been required to apply to the Tribunal by 9 May 2012 (CB 167 [21]). The Tribunal held it could not extend the time for making the application (CB 167-168 [23]). Consequently, the application made by the applicant on 16 May 2012 was not valid (CB 168 [24]). On this basis, the Tribunal found that it did not have jurisdiction.

Legislation

Jurisdiction of the Migration Review Tribunal

1. Subsection 348(1) of the Act provides that the Tribunal has jurisdiction to review an MRT-reviewable decision if an application is properly made under s.347 for review of that decision.

2. The delegate’s decision to refuse to grant the applicant a skilled migration visa was a MRT-reviewable decision pursuant to s.338(2) of the Act.

3. Section 347 relevantly provides:

   “An application for review of an MRT‑reviewable decision must:

   (a)   be made in the approved form; and

   (b)be given to the Tribunal within the prescribed period, being a period ending not later than:

   (i) if the MRT-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)-- 28 days after the notification of the decision; or

   …”

4. The prescribed period is set out in reg. 4.10(1) of the Regulations. Regulation 4.10(1) relevantly provides:

   “For paragraph 347(1)(b) of the Act, the period in which an application for review of an MRT‑reviewable decision must be given to the Tribunal:

   (a)if the MRT‑reviewable decision is mentioned in subsection 338(2) or (7A) of the Act—starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received;…”

5. There is no dispute that the prescribed period for purpose of the applicant making a valid application for review, was the period ending at the end of 21 days after the day on which the applicant received notice of the delegate’s decision. What is in dispute, having regard to the oral submissions made by the applicant and his friend, Mr Kumar,  on his behalf is:

   ·The date on which the applicant received notice of the decision; and

   ·Whether the prescribed period may be extended, having regard to the specific circumstances of the case.

6. It is therefore appropriate to set out in some detail the notification provisions of the Act.

Notification provisions

1. Section 66(1) of the Act provides that when the Minister refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way. Sub-regulation at 2.16 (1) and (3) of the Regulations provide that the Minister must notify the applicant of a decision to refuse to grant the visa by one of the methods specified in s.494B of the Act.

2. Subsection 66(2) specifies various matters that must be met where a decision to refuse an applicant for a visa is notified. This subsection requires, if the refusal was because the applicant did not satisfy a criteria for the visa, specification of that criteria; if the grant of the visa was refused because of a provision of the Act or Regulations, the specification of those provisions; the provision of written reasons; the rights of an applicant to review the decision including the time in which the review may be made and which the application for who can apply and where the application for a review can be made.

3. Subsection 494B (5) of the Act provides that one specified method by which the Minister can give a person a document consists of the Minister transmitting a document by e-mail to the last e-mail address provided to the Minister for the purposes of receiving documents.

4. Subsection 494C (1) and (5) relevantly provide that, if the Minister gives a document to a person by the method in s.494B (5), the person is taken to have received the document at the end of the day on which the document is transmitted.

Submissions

1. It is to be noted that at the hearing the applicant was self represented but was assisted by a friend, Mr Kumer, who also made submissions on the applicant’s behalf.

2. The applicant submits that as the eldest son in his family he carries all the responsibility for providing for his family, that his family is not wealthy as he belongs to a low class family and that his father spent all his money to send him to Australia so that he could become a permanent resident and therefore look after his family. The applicant complains that the failure to have his application reviewed by the Tribunal was a failure of the migration agent as he gave the agent everything he needed on 9 May 2012. He states that he hasn’t seen his family for around 7 years and has been in bad health. He saw a forensic psychiatrist in 2011 and was diagnosed as having acute depression and has been taking medication since 28 September 2011. The applicant tendered in Court (“Exhibit AE1”) various email correspondence with the Department of Immigration and Citizenship (“Department”) detailing complaints regarding his former migration agent. It is apparent from the email train that the applicant is now lodging complaints with the Department as a consequence of being informed by the office of the Migration Agent Registration Authority that the agent, Mr Sharma, is not a registered agent and hence outside the authorities jurisdiction. It is apparent and the Court accepts that the applicant is much aggrieved by the failure of his former agent to file his application for review in time. The applicant also tendered a confidential psychological assessment conducted by Dr Aaron Cunningham, forensic psychologist dated 25 September 2011. (“Exhibit AE2”)It appears this assessment was undertaken arising out of driving charges against the applicant. The diagnosis was depression. There is a mental health plan which provides for the  applicant to attend counselling over the period May to July 2012 as well as a reference from the applicant’s general practitioner to the forensic psychologist which discloses that the applicant was commenced on the anti depressant Zoloft. This reference is dated 28 September 2011. There is no recent medical evidence provided by the applicant.

3. The applicant also stated, at the hearing, that at the time the delegate of the Minister sent the decision by email to him, he was in custody. The applicant provided a Statuary Declaration in which he declared he was in custody for 20 days. Attached to that was a Prisoner Report dated 19 April 2012 (“Exhibit AE3”). It appears to disclose that between 12 April 2012 and 18 April 2012 the applicant was in custody. The Court can take this information no further. The relevance of this latter material is that Mr Kumar submitted that whilst the applicant was in custody he was not able to access his emails. The applicant submitted he was in custody between 30 March 2012 and 18 April 2012 and that subsequently he was unable to access his emails because he was homeless and living in a garage and because he suffered psychological illness. It is to be recalled that in his application for review the applicant submitted that he had insufficient funds to arrange legal representation and was otherwise awaiting information from the Tribunal in respect of his attempts to re-open his case. It is apparent from the material and the Court Book that the applicant did indeed request the Tribunal to re-open his case but that this was refused on 31 July 2012 (CB 161).

4. Having regard to the application for review and affidavit and the applicant’s oral submissions the Court identifies the following grounds relied on  in support of the application for extension of time for judicial review by this Court:

   ·The delay in seeking judicial review was as a result of his approaches to the Tribunal to re-open his case, his inability to obtain funds for legal representation, the fact he was in custody and homeless, and his medical condition being depression; and

   ·As to his substantive application, the prescribed time limit available for Tribunal review ought to have been extended by the Tribunal because the filing of his application out of time was as a consequence of the failure of his migration agent at that time, not his own.

5. The Minister submits that the applicant’s explanation does not satisfactorily explain the applicant’s delay and, in any event, in deciding whether it is necessary, in the administration of justice to extend the time for review, the Court must have regard to the prospect of the applicant succeeding in the application for judicial review. The Minister submits that the application for judicial review does not have any reasonable prospect of success on the basis that:

   ·The applicant was notified of the delegate’s decision on 18 April 2012. The delegate’s decision was emailed to the applicant at his last email address on that date and, pursuant to provisions of s.s 494B and s.494C of the Act and Regulation 2.16, the applicant was taken as having been notified of the delegate’s decision on 18 April 2012;

   ·The decision and other documents attached to that email meet the relevant criteria set out in s.66(2);

   ·By reason of regulation 4.10 (1)(a), the period in which the applicant could make an application for review by the Tribunal commenced on 18 April 2012 and ended 21 days after that date, being 9 May 2012; and

   ·This prescribed period may not be extended by the Tribunal other than in circumstances of fraud perpetrated by the migration agent.

1. Consequently, the Tribunal’s decision that it lacked jurisdiction was correct. As the decision was not affected by jurisdictional error, the substantive application lacked any prospect of success.

Extension of Time –Consideration

Delay

1. The Court accepts the applicant sought Ministerial Intervention in relation to the Tribunal decision and requested the Tribunal to “reopen” his case. Ministerial intervention was refused and the applicant was advised of this by correspondence dated 6 September 2012. The Tribunal advised the applicant that it would not reopen the applicant’s case on 14 January 2013. The fact the applicant embarked on these steps to dispute the Tribunal’s decision, does not, in the Court’s view, constitute a reasonable explanation for the delay in seeking judicial review. The applicant was, at least until late November 2012, legally represented and had been advised by the Tribunal of the right to judicial review on 30 July 2012. Further, the Court is not satisfied that waiting to obtain funds for legal representation is a reasonable basis for delay.

2. The Court is prepared to accept that the applicant suffers from depression, however, there is no evidence before the Court that his medical condition affected his capacity at the relevant time such that the delay of around 4 months is satisfactorily explained.

3. Consequently, the Court is not satisfied the reasons advanced by the applicant for the delay are reasonable.

Substantive merits of the application

1. The submissions of the applicant require the Court to decide whether the provisions of the Act dealing with the notification of decisions are susceptible to qualification by reasons of the particular circumstances of a case.

2. In Murphy v Minister for Immigration and Multicultural and Indigenous Affairs[2] (“Murphy”), Spender J considered the operation of subsection 494B(4) which deals with service by post and s.494C(4) of the Act, which deals with a dispatch of a document by prepaid post and which relevantly provides that, “the person is taken to have received the document” if the document was dispatched from a place in Australia to an address in Australia – seven working days after the date of the document. His Honour held, that in his view, “this provision manifests an intention the person is taken to have received the document 7 working days after the date of the document, without qualification.”[3]

   [2] (2004) FCR 657

   [3] Ibid at [69]

3. The decision in Murphy was followed by the Full Court in Xie v Minister for Immigration and Multicultural and Indigenous Affairs[4]. This decision also concerned the operation of subsection 494C(4). The appellant claimed he actually received a delegate’s decision dated 4 August 2004 on 1 September 2004 not 13 August 2004 (being the seven working days period after the date of the document). The appellant argued that, as he had not received the notification until 1 September 2004, the deeming provisions contained s.494C did not operate. The Full Court rejected that argument holding that, “subsection 494C(4) does not purport to create a rebuttable presumption of fact”[5]. The Full Court observed that, “The sequence of statutory and regulatory provisions to which we have referred proscribes with precision the steps to be taken in notifying a visa applicant of the outcome of his or her application.”[6]

   [4] (2005) FCAFC 172

   [5] Ibid at [13]

   [6] Ibid at [14]

4. In these proceedings, the Minister referred the Court to a decision of Kirby and Hayden JJ dated 27 March 2008, SZJQC v Minister for Immigration and Citizenship & Anor[7] refusing special leave to appeal from the judgment of the Federal Court of Australia dismissing an appeal from an order of the then Federal Magistrates Court. The decision concerned the operation of notification provisions for the purpose of reviews by the Refugee Review Tribunal of decisions of the Minister’s delegate. In this case the delegate refused to grant a protection visa pursuant to s.412 and reg.4.31. These provisions are expressed in terms substantially the same terms as s.347 and reg.4.10. The application for special leave was refused. It is useful to refer to the following extracts of that decision because, as the Minister rightly points out, the circumstances in that matter reflect those advanced in these proceedings as a basis for qualifying the operation of the deeming provisions. Their Honours stated at [3]:

   “There is no statutory power for the Tribunal, or anyone else, to extend the time limit, whatever the reasons for the default. The applicant has asserted that at all times he acted promptly by approaching a registered migration agent and instructing her to ensure the protection of his rights. He states that he trusted the registered migration agent to help him “competently, diligently and fairly”; that he was very disappointed that this had not occurred; that it had involved a breach of duty to him; and that he did now not trust any migration agent. He contented that, if correct, the unchangeable time limit would deprive him of substantive rights without any judicial consideration of the “substantial justice and the merits of the case” as s 420 of the Act ordinarily requires. He complains that the delay “is not my fault” and that he had been unaware of the “time limit of my right to appeal”.

   [7] [2008] HCASL 66 S427/2007

5. The decisions of Murphy and Xie were applied by the Full Court of the Federal Court of Australia in Tay v Minister for Immigration and Citizenship and Another[8] in relation to subsection 494B(5). In this matter the applicant provided in her visa application an email address as her authorised contact address. On 22 September 2008 the Department sent to that email address a notification that the applicant’s application for visa had been rejected by a delegate of the Minister. The email attached a letter enclosing the decision record. The applicant’s solicitor sent a letter by email to the Department stating that the applicant did not receive the email informing her of the refusal to grant a decision until 16 October 2008. Referring to the provisions subsection 494B(5), the Full Court stated: [9]

   “On the face of it, it would seem to follow from these provisions that the applicant is deemed to have been notified of the delegate’s decision on 22 September 2008 irrespective of whether she had in fact received it on that day or at all. Consequently the period in which the applicant could apply for review of the delegate’s decision expired on 13 October 2008.”

   [8] [2010] FCAFC 23

   [9] Ibid [5]

6. In those proceedings the applicant challenged the decision in Xie. The Full Court stated:[10]

   “For reasons given below, we have concluded that the decision in Xie is not wrong nor does it produce unintended or irrational consequences. The construction of s 494C(4) in Xie and the consequent rigidity of time limits imposed on applications for review my seem harsh but, as the explanatory material referred to below indicates, they result from the considered decision of the legislature as to an appropriate way to facilitate visa applications and to clarify when documents are received. In so far as is presently relevant, the provisions of s 494C(4) and (5) are identical and therefore the reasoning of the Full Court in Xie is equally applicable to both subsections.”

   [10] Ibid [19]

7. The Full Court went on to observe in relation to the provisions of s.494C:

   “24.Section 494C makes very detailed provision for determining when a document is taken (deemed) to have been received from the Minister. Those provisions must be construed in a statutory context of similarly detailed provisions concerning the methods by which the Minister may give documents to a person when this is a requirement (s 494B) and when it is not required (s 494A) and the identification of the authorised recipient of documents (s 494D). These provisions all evidence concern that there should be certainty in the transfer of documents from the Minister both as to the method and as to the time of delivery. This was recognised by the Full Court in Xie leading it to conclude that s 494C(4) did not create a rebuttable presumption…

   25.That s 494C(5) does not create a rebuttable presumption fo fact is supported not only by our construction of the relevant statutory and regulatory provisions, but also by extrinsic material relevant to the introduction of these provisions. Sections 494A, 494B, 494C and 494D were introduced into the Migration Act by the Migration Legislation Amendment (Electronic Transaction and Methods of Notification) Act 2001 (Cth). On 4 April 2001, in his Second Reading Speech concerning the Bill that preceded this Act, the Minister for Immigration and Multicultural Affairs said:

   “These amendments essentially consolidate into the Migration Ac existing provisions found in either the Migration Act or the migration regulations. They clarify when notification of a decision occurs and on what date. This is critical for review mechanisms, as an application for review must be made within a specified period, or the case is out of time.”

8. Counsel for the Minister properly drew the Court’s attention to a decision of the High Court in SZFDE and Others v Minister for Immigration and Citizenship and Another[11]. That decision centred around the provision of Division 4 of Part 7 of the Act laying down the procedure for the conduct of reviews by the Migration and Refugee Review Tribunals. In the particular circumstances of this case the appellant, acting on the advice of a person who wrongly represented himself to be a lawyer and migration agent, declined to appear before the Tribunal following an invitation made by the Tribunal for the applicant to appear pursuant to s.425 of the Act. The appellant was advised by that person that he was going to take a different approach; namely, writing a letter to the Minister[12]. The High Court noted that the ultimate issue was the effect, upon the Tribunal’s decision making process for which the Parliament provided in Part 7 of the Act, by reason of the fraud perpetuated on that person.[13] The decision of the High Court held that the fraud had the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the appellants.[14]

   [11] [2007] HCA 35

   [12] Ibid at [39]

   [13] Ibid at [47]

   [14] Ibid at [49]

9. It is to be noted that the High Court reflected on the significance of its decision as follows[15]:

   “[53].The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the tribunal of reviews and the place therein of the ss 425 and 426 A. In the Full Court, French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. The outcome in the present appeal stands apart from the above such considerations.”

   [15] Ibid at [53]

10. The Court is satisfied that the decision of the Minister’s delegate refusing to grant the skilled migration visa was sent by email dated 18 April 2012 to the applicant’s last named email address, being …[email protected]. By reason of the operation of subsection 494C(5) the applicant is deemed to have been notified of the delegate’s decision on the date of the email; 18 April 2012 whether he had in fact received it on the day or at all. Consequently the period during which the applicant could apply for a review of the delegate’s decision expired, on 9 May 2012: reg. 4.10.

11. The applicant submits that whilst in custody and for a subsequent period to that time, he was unable to access his email address. This submission is inconsistent with records of an email sent by the applicant using the email address,  …[email protected], dated 28 April 2012 (CB 127). The Court is satisfied that the applicant was able to access his email, in the period subsequent to the notification of the decision by the delegate to the applicant’s last known email address on 18 April 2012.

12. On the submissions of the applicant there is no question of fraud which stultified the operation of the legislative scheme to afford natural justice to the applicant. Mr Sharma the applicant’s former migration agent may not have been a registered migration agent, however, there is no evidence that he provided the applicant with fraudulent advice. On the submissions of the applicant, Mr Sharma negligently failed to file the applicant’s application for review by the Tribunal within the prescribed period, notwithstanding that the applicant had provided him with all necessary documentation. This failure or negligence does not rise to the particular conduct which was the focus of the High Court in SZFDE (supra). The Court accepts that the applicant may be aggrieved by the behaviour of his former migration agent and by the fact that in those circumstances he believes the provisions operate harshly. However, it is settled principle having regard to the authorities referred to above that, absent fraud which vitiates the operation of the provisions in Division 4 Part 7 of the Act, the deeming provisions operate without qualification.

13. The Court finds that the Tribunal’s decision that the applicant made his application for review by the Tribunal outside the 21 days limit as prescribed under the Act and Regulations and that it had no jurisdiction to deal with the application made by the applicant, was correct.

14. It is obvious from these findings that the Court is of the view that the applicant’s application for review of the Tribunal decision lacks substance or any merit.

Conclusion

1. In light of the findings of this Court, the Court is satisfied that it is not in the interest of the administration of justice to extend the 35 day period within which an application may be made to this Court for a remedy to be granted pursuant to s.477(2). The application for an extension of the 35 day period is refused.

2. The Minister submits that in the event that the applicant’s application for an extension of time for judicial review is unsuccessful then costs be fixed in accordance with Part 3 Schedule 1 of the Federal Circuit Court Rules 2001 for proceeding concluded at Final Hearing, namely $6,646.00.

3. The Court is satisfied that as the application was wholly unsuccessful and the proceedings were concluded at a final hearing, the applicant should pay the costs fixed at $6,646.00.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate:

Date:  13 September 2013