Singh v Minister for Immigration

[2013] FCCA 652

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 652

Catchwords:
MIGRATION – Judicial review of decision of Migration Review Tribunal – no jurisdiction in MRT as application to MRT was lodged out of time – application dismissed – application to Federal Circuit Court of Australia also out of time – leave granted pursuant to s.477(2) – application nevertheless dismissed – no matter of principle.

Legislation:  
Migration Act 1958 (Cth), ss.347(1)(b)(i), 477(2)

Migration Regulations 1994 (Cth), r.4.10(1)(a)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: AMAR IQBAL SINGH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 223 of 2012

Judgment of: Judge Simpson

Hearing date: 19 June 2013

Date of Last Submission: 19 June 2013

Delivered at: Adelaide

Orders made on: 19 June 2013

Reasons published on: 26 June 2013

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Mr d’Assumpcao

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The Application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) to seek judicial review is granted.

2. The application filed on 26 September 2012 is dismissed.

3. The applicant do forthwith pay the first respondent’s costs fixed in the sum of SIX THOUSAND, FOUR HUNDRED AND SEVENTY ONE DOLLARS ($6,471.00).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 223 of 2012

AMAR IQBAL SINGH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for an extension of time to seek judicial review of a decision of the Migration Review Tribunal. The Tribunal determined that it did not have jurisdiction because the application to it was lodged outside of the time prescribed by the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth).

Background

1. The Applicant is an Indian national.  On 30 May 2011, he applied for a Student (Temporary)(Class TU) visa.  At question 20 of the application, he ticked yes to the question, “Do you agree to the department communicating with you by…email…?”  He then supplied the email address: “[email protected]” (the nominated email address).

2. On 23 May 2012, the Delegate of the Minister decided to refuse to grant the visa and notified the Applicant by letter and emailed it to him that day at the nominated email address.  Notably, prior to the decision, the Department had communicated with the Applicant at the nominated email address.

3. On 18 June 2012, the Applicant applied to the Tribunal for review of the Delegate’s decision.

4. By letter dated 16 July 2012, the Tribunal informed the Applicant of its preliminary view that it did not have jurisdiction because the application had not been lodged within a period not later than 21 days after the day on which notice was received pursuant to s.347(1)(b)(i) of the Act and r.4.10(1)(a) of the Regulations.

5. The Tribunal received the Applicant’s response to its letter on 2 August 2012. The Applicant relevantly stated that his cousin died on 2 February 2012, which had caused him great distress. He also submitted that, following the Delegate’s decision, he attended the Department of Immigration and Citizenship and was informed that he had 28 days “to appeal”.

6. In a decision record dated 20 August 2012, the Tribunal decided that it did not have jurisdiction in the matter.

7. On 26 September 2012, the Applicant filed the application for an extension of time.

The Tribunal's decision record

1. The Tribunal set out the background to the matter, and summarised the law relating to its jurisdiction. It then discussed the deemed receipt provisions.

2. In its “findings and reasons”, the Tribunal noted that it had regard to the Applicant’s submission of 2 August 2012.

3. Turning to the central question of jurisdiction, it held that the Applicant did not nominate an authorised recipient, and that the Delegate’s decision was correctly emailed to the Applicant at the nominated email address on 23 May 2012. Consequently, he was taken to be notified that day. The combined effect of the deemed receipt provisions meant that the prescribed period of 21 days within which the application for review could be lodged ended on 13 June 2012. Because the application was lodged on 18 June 2012 it was out of time and the Tribunal concluded that it did not have jurisdiction.

The judicial review application

1. The application to this Court was filed 36 days after the date of the “migration decision”, and accordingly the Applicant seeks an extension of time pursuant to s.477(2) of the Act. The Minister neither consents to, nor opposes, the making of an order under s.477(2).

2. Even if the Court considers it appropriate to make an order pursuant to s.477(2), in order to grant the relief sought, jurisdictional error will need to be manifest in the Tribunal's decision or procedure. In this regard, the grounds of review cited by the Applicant read (without alteration):

   “1.MRT stated in its decision that they do not have jurdiction in this matter. MRT failed to give weight on the proof given by me about my mental situation due to my cousin death. Hence MRT made 'jurdictional error' by considering/putting weight to the fact submitted by me in their decision.

   2.Due to my mental situation my case falls in exceptional circumstance which was beyond my control. MRT failed to consider my cousins death certificate i.e. failed to realise that my case falls under their jurdiction. [sic]”

3. In my view neither ground has any substance. The only issue for the Tribunal was whether it had jurisdiction. It correctly identified that issue and, in doing so, asked itself the correct question.  The Tribunal expressly stated that it had regard to the Applicant’s submissions. Accordingly, ground 1 must fail. The weight to be attributed to such submissions was for the Tribunal to resolve. That matter formed part of the Tribunal’s core fact-finding function[1]: The Court cannot interfere with such findings.

   [1]     Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281–282 (Brennan CJ, Toohey, McHugh and Gummow JJ)

4. Ground 2 must also fail for similar reasons.

5. First, the Tribunal dealt with the claim of the cousins death as follows:

   “The applicant advises that he was in a "state of shock" and "depressed" when he was refused the visa. He refers to the death of his cousin in February 2012, and annexes an affidavit from his uncle which confirms this. He does not, however, provide any evidence that the Department failed to comply with its' [sic] legislative requirements when notifying him of the visa refusal.”

6. It is evident that the Tribunal considered the claim and the material available concerning the cousin’s death. There is nothing to suggest that the Applicant furnished the Tribunal with a “death certificate”.

7. Secondly, there is no scope for consideration of “exceptional circumstances” when deciding whether the Tribunal had jurisdiction in this matter.

8. Ground 2 should be rejected.

Conclusion

1. There being no legal error, let alone jurisdictional error, established, it follows that the application must be dismissed. There should also be an order that the first respondent have its costs fixed in the sum of SIX THOUSAND, FOUR HUNDRED AND SEVENTY ONE DOLLARS ($6 471.00).

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date:  26 June 2013