Singh v Minister for Immigration

[2013] FCCA 616

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 616

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision that it lacked jurisdiction – review application filed out of time – issue of fee reduction request considered – no arguable case of jurisdictional error.

Legislation:  

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.494C

Applicant: JASPREET SINGH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 333 of 2013

Judgment of: Judge Driver

Hearing date: 24 June 2013

Delivered at: Sydney

Delivered on: 24 June 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms B Rayment
Sparke Helmore

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,239.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 333 of 2013

JASPREET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application to review a decision of the Migration Review Tribunal (Tribunal).  The decision was made on 21 January 2013.  The Tribunal found that it did not have jurisdiction in the matter.  The applicant, Mr Singh, applied to the Tribunal on 10 July 2012 for review of the delegate’s decision.  The delegate had decided to refuse Mr Singh’s visa application for a Skilled Provisional Class VC Visa apparently because he had not established a sufficient English language ability. 

2. The Tribunal wrote to Mr Singh on 30 August 2012 and noted that it did not appear that his review application was valid as it was not lodged within the relevant time limit.  Mr Singh responded on 24 September 2012.  He sought further time to respond and that request was granted.  On 22 October 2012 Mr Singh made a request for access to written material but he did not further address the question of the time limit on his review application. 

3. In his review application Mr Singh had requested a reduction in the filing fee payable to the Tribunal[1].  At [8] of its reasons[2] the Tribunal notes that Mr Singh was notified on 13 November 2012 that his request for a fee reduction was refused and he was advised that he must pay the application fee by 14 December 2012.  Exhibit R1 is a copy of letters to Mr Singh and his authorised representative advising of the fee reduction decision.  It does not appear that the Tribunal received any further correspondence from Mr Singh. 

   [1] Court Book (CB) 32

   [2] CB 56

4. The Tribunal considered the circumstances of the notification of the delegate’s decision to Mr Singh. The Tribunal noted that the Department had made an error in notifying Mr Singh at a particular email address. Nevertheless the Tribunal relied upon s.494C(7) of the Migration Act 1958 (Cth) to establish a time of deemed receipt of the notification on the basis that Mr Singh had in fact received it notwithstanding the Department’s error. The Tribunal found that Mr Singh was taken to have been notified of the delegate’s decision on 14 June 2012 and he therefore needed to lodge his review application by 5 July 2012.

5. As the application was not made until after that period had expired the application for review was not a valid application and the Tribunal found it had no jurisdiction in the matter.  At [22] of its reasons[3], the Tribunal dealt with the issue of the requested reduction in the filing fee.  However, that issue did not figure in the outcome of the review which turned on the expiration of the period for making the review application. 

   [3] CB 58

6. In his judicial review application filed on 21 February 2013 Mr Singh asserts a miscarriage of justice on the part of the Tribunal for declining his fee reduction request. 

7. I received as evidence, in addition to exhibit R1, his affidavit in support of the judicial review application and the court book filed on 19 March 2013. 

8. Mr Singh told me that he had sought legal aid for his application to the Court but had not received a decision on that request.  He was not able to make any legal submissions in support of his application.  I explained to him the distinction between the fee reduction issue and the time period issue. 

9. Mr Singh appeared to understand that distinction but did not make any submissions about it.  Neither did I require any submissions from the Minister’s solicitor.  In my view, the application before the Court addresses the wrong issue.  As I have already noted, the Tribunal’s decision did not turn on the question of payment of the required filing fee.  Rather, the decision turned on the question of whether the review application was filed out of time.  I see no error in the Tribunal’s approach to that issue.  I find that the judicial review application fails to demonstrate an arguable case of jurisdictional error by the Tribunal. 

10. I will order that the application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

11. In consequence of the dismissal of the application the Minister seeks an order for costs.  The Minister seeks scale costs at the time the judicial review application was filed.  Mr Singh did not wish to be heard on that issue. 

12. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,239.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  2 July 2013