Singh v Minister for Immigration
[2019] FCCA 2106
•5 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2106 |
| Catchwords: MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – whether the Tribunal failed to take into account relevant considerations – whether the Tribunal denied the application natural justice and procedural fairness and was biased in finding that the Tribunal did not have jurisdiction – no jurisdictional error revealed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.66, 338, 347, 360, 424, 476, 494B, 494C, Part 5 Federal Circuit Court Rules 2001 (Cth), Part 44 Migration Regulations 1994 (Cth), regs.2.55, 4.10 |
| Cases cited: AWH16 v Minister for Immigration & Anor [2018] FCCA 3246 |
| Applicant: | ROBIN YUVRAJ SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3668 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 6 March 2019 |
| Date of Last Submission: | 8 May 2019 |
| Delivered at: | Sydney |
| Delivered on: | 5 August 2019 |
REPRESENTATION
| Applicant: | In Person |
| Representative for the Respondents: | Mr D. Baddeley |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The application made on 21 December 2016 and amended on 15 February 2019 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3668 of 2016
| ROBIN YUVRAJ SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 21 December 2016, and amended on 15 February 2019, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which on 17 November 2016 found that it did not have jurisdiction to review the decision of the Minister’s delegate to refuse the grant of a Student (Temporary) visa to Mr Robin Yuvraj Singh (“the applicant”).
The evidence before the Court is as follows:
(1)A bundle of relevant documents filed, and tendered, by the Minister (the “Court Book” – “CB” – “RE2”).
(2)The affidavit of Ms Sharon Manpreet Sangha, solicitor, affirmed on 22 May 2017.
(3)The affidavit of Ms Sophie Caroline Roberts, solicitor, affirmed on 5 March 2019.
(4)A letter from Mr Rohan White, solicitor, tendered by the Minister (“RE1”). (The letter to which was enclosed a copy of the Court Book sent to the applicant).
Background
The following background emerges from this evidence. The applicant is a citizen of India (CB 1). He applied for the visa on 31 December 2015 (CB 1–8). In this application he authorised the Minister’s department to communicate with him by email for the purposes of the application (CB 3). The email address given was: “[email protected]”. He had also provided a postal address at Power Street, Victoria.
In his application the applicant declared that he had not received any assistance in the completion of the application form. Nor is there any other evidence to indicate that he received any such assistance, or that he otherwise had received assistance from a registered migration agent.
The Delegate
The delegate refused the grant of the visa on 6 September 2016 (CB 25–CB 32). In essence, the delegate was not satisfied that the applicant was a genuine applicant for entry into, and stay in, Australia as a student, as was required before the visa could be granted (with reference to cl.572.223(1)(a) of schedule 2 to the Migration Regulations 1994 (Cth) (“Regulations”) (CB 32).
In particular the delegate was not satisfied that the applicant intended to stay in Australia temporarily, in context, as opposed to seeking a more permanent outcome (CB 32).
The evidence before the Court (in particular the evidence of Ms Sangha and Ms Roberts – see the annexures to their affidavits) reveals that the notification of the delegate’s decision was sent to the applicant by letter dated 6 September 2016 (see also at CB 24–CB 27). The letter was transmitted by email sent to the email address the applicant had provided in his application.
The Tribunal
The applicant applied for review to the Tribunal on 3 October 2016 (CB 33-CB 34). He provided the same email address, as he had provided to the Minister’s department, for the purposes of receiving correspondence from the Tribunal (CB 34).
In the application he confirmed that he had been notified of the delegate’s decision by email sent to the same email address (CB 33.4).
There is nothing in the application to the Tribunal, or elsewhere, to indicate that the applicant had, or claimed to have had, assistance in the completion of the application to the Tribunal, or that he had appointed a registered migration agent to assist him.
On 19 October 2016 the Tribunal invited the applicant to comment on what it said was the validity of his application for review (CB 40). The Tribunal explained that applications for review (such as the one lodged by the applicant) must be made within twenty-one days of the date of the delegate’s decision. The Tribunal noted that in his case the application for review needed to have been made on, or before, 27 September 2016. As set out above it was not made until 3 October 2016. That is six days outside the relevant time.
The applicant responded to the Tribunal on 2 November 2016 (CB 41) his focus was to explain why he had not been able to make the application within time. His reasons were that his mobile phone had been stolen, and that the delay was due to his own “lazziness” [sic: laziness]. The applicant sought an extension of the relevant time.
The Tribunal found that the applicant had been notified of the delegate’s decision by letter dated 6 September 2016, which was sent to him by email. It found that this was the day the applicant was notified of the Tribunal’s decision.
It also found that pursuant to s.347(1)(b) of the Act, and reg.4.10, the application for review had to have been made within twenty-one days of that date (with reference to reg.2.55). It had not. Therefore, the Tribunal had no jurisdiction to review the delegate’s decision.
The Application to the Court
The grounds of the applicant’s amended application before the Court are in the following terms:
“1. The applicant claims that in making decision ,the Administrative Appeal Tribunal failed to take account relevant considerations.
2. Particulars : In making decision the Tribunal did not account the applicant's unprecedented circumstances which were beyond control . The applicant fully relied on his Representative to forward the applicant's application for review to the AAT. He was not aware that the time limit for review application is only 21 days not 28 days . The Migration Agent did not tell about the limit of time in filing application for review . He was told by the Migration Agent very late . He did not receive any call from the Migration Agent . He was also having financial hardship and he could not arrange prescribed fee of $1673 within time limit .
3. The applicant's representative could not fulfill her obligation and he became victim of the system The applicant claims that because of his unprecedented family situation and reasons of financial hardship the applicant changed the study courses . The applicant lost financial support from his parents because of some legal problems occurred in India . He could not afford to continue his previous course of study because of high course fees. He wanted to study in a course where he could achieve the better result with a good prospect of employment in India .
4. The applicant claims that he was denied natural justice and procedural fairness when he was not called for hearing. (Section 424 of the Migration Act) by the Tribunal. The Tribunal was biased when it concluded that the Tribunal does not have jurisdiction in this matter .
5. Particulars : The applicant wanted to tell the Tribunal about the circumstances occurred during the time of study and delay in lodging application for review but the Tribunal did not give chance to appear before the Tribunal and made decision . The applicant claims that the Tribunal in making decision did not realise that how the decision will affect the whole life . The applicant claims that he was denied natural justice when the Tribunal did not accept his application fr review and said that the Tribunal has no jurisdiction.
6. In his affidavit to the Court, the applicant explained the reasons why he did not pay the fee and continue the study . His father was in a serious legal and medical condition. Financial help from him was completely stopped .He forwarded all the reasons for his fainacial hardship to the Migration Agent but she faild to forward to the Department about the applicant's details about his father's medical condition and evidence of support .
7. The applicant did not get chance to appear before the Tribunal and he did not get the chance to tell the Tribunal about the unprecedented circumstances occurred in his family in India which were beyond his control .”
[Errors in the original.]
Before the Court
On 6 July 2017 a Registrar of the Court made various orders for the conduct of this case. The application was set down for a show cause hearing pursuant to Part 44 of the Federal Circuit Court Rules 2001 (Cth).
Prior to the hearing, consistent with the Registrar’s orders, the Minister filed written submissions on 25 February 2019. The applicant filed an amended application on 15 February 2019. Although not entirely clear, an unnumbered page of narrative submitted at the same time appears to be the applicant’s attempt at making written submissions (see further below).
At the hearing on 6 March 2019 the applicant appeared in person assisted by an interpreter in the Hindi language. The Minister was represented by a solicitor.
The applicant was given leave to rely on grounds 1–5 of his amended application, in circumstances where it was filed well outside the time provided for by the orders of the Registrar.
The Minister objected to [6]–[7] of the amended application being treated as grounds for review on the basis that no proper assertion of legal error was made in these paragraphs. The Minister had no objection to the Court treating these paragraphs (and the unnumbered attached page) as submissions.
When asked whether he had anything to say in response to the Minister on this issue, the applicant replied “[n]othing”. I ultimately agreed with the Minister’s submission and proceeded on the basis set out above.
It emerged from the applicant that the document he had filed on 15 February 2019 (the amended application) was prepared by a person he described as his “lawyer”. He identified this person as Mr Bharati (Jyoti Bharati).
It is to be noted that the amended application is to a large part identical to the originating application. Both documents state on their face that they were prepared by the applicant personally. There is no reference to Mr Bharati, or to any other lawyer. Nor has any lawyer signed the usual certificate as to the prospects of success. Nor is there any other lawyer on the record in this case.
I pause to note that Mr Bharati is known to this Court. His name has been given by other otherwise unrepresented applicants as the lawyer who assisted them with their applications. It appears Mr Bharati provided legal assistance without revealing this to the Court or otherwise certifying as to the reasonable prospects of success. In AWH16 v Minister for Immigration & Anor [2018] FCCA 3246 I made a personal costs order against Mr Bharati in similar circumstances to the current case.
In any event, the applicant was unable to explain the reference at [6] of the amended application to his “affidavit”. He told the Court he did not know what affidavit Mr Bharati, who prepared the document, was referring to.
Ultimately, the applicant stated that he thought (although not sure) that Mr Bharati was referring to his affidavit of 21 December 2016 which accompanied his originating application to the Court. I marked that document for identification and told the applicant that he could explain its relevance to his case when he made his submissions.
The applicant began his submissions by stating that he wanted to tell the Court “[t]he whole story”. This appeared to be his account of his long immigration history and the difficulties he has faced in studying in Australia, including financial difficulties, and the difficulties of his family in India.
I explained to the applicant that the actual issue for the Court was whether the Tribunal’s finding that it did not have jurisdiction to review the delegate’s decision contained any legal error. In short, the immediate issue for the Court was whether the Tribunal did have, or did not have jurisdiction to review the delegate’s decision.
In this light I sought to explain to the applicant what the Tribunal had reasoned, and ultimately found, and with reference to the evidence before the Court.
The applicant stated that he understood that the Tribunal had not made any mistake, but his complaint was that he could not “deal with them directly”. He explained this by saying that he sent the relevant information to his agent, but his agent “was late” in providing that information, presumably to the Tribunal. This matter is address below in the consideration of the grounds of the amended application.
Questions Arising At the Hearing
During the course of the Minister’s submissions question arose as to how the Tribunal arrived at the period of twenty-one days within which the Tribunal found that the applicant was required to make his application for review to the Tribunal.
As part of his explanation the Minister made reference to s.494C(5) and s.494B(5) of the Act. No reference is made to these sections in the Tribunal’s consideration. It is the case that the matter of whether the Tribunal had jurisdiction is a jurisdictional fact for this Court to determine in all the circumstances. However, the starting point (although not ultimately determinative) in any such consideration is what the Tribunal made of the evidence before it.
The matter was further complicated by the Tribunal’s reference to reg.2.55 (at [6] of its reasons). That regulation, at the relevant time, related to the giving of documents in matters concerning the proposed cancellation, cancellation, or the revocation of a visa. That is plainly not applicable to this case.
The Minister’s written submissions filed before the hearing assumed, but did not satisfactorily explain the relationship between s.347(1)(b) and reg.4.10. Further, while the Tribunal made reference to this section and regulation (at [3]) beyond mere assertion, the Tribunal’s reasoning is also absent any consideration as to how this legislation provides the result that the applicant had twenty-one days to make his application. Noting of course that the application for review was made within twenty-eight days from the date of notification which is the period referred to in s.347(1)(b)(i).
Further, the Tribunal’s decision is absent any consideration as to which of the three options set out at s.347(1)(b)(i) or (ii) or (iii) applies to the current case (if any).
In his written submissions and (as attached to the amended application) the applicant made reference to the case of Walia v Minister for Immigration & Anor [2018] FCCA 1357 (“Walia”)). The Minister had not addressed this in his first written submissions.
I gave the Minister and the applicant the opportunity to make further written submissions on these matters. Only the Minister provided written submissions.
As a result of the emergence of these matters it was clear that it was not appropriate for this matter to proceed on an interlocutory basis (pursuant to Part 44 of the rules). The matter proceeded as a final hearing.
In his subsequent written submissions the Minister correctly identified the questions that arose during the exchanges at the hearing of this matter [1]:
“…
(1)Does the Court have jurisdiction to determine the correctness of the Tribunal’s finding that it did not have jurisdiction to review the delegate’s decision;
(2)What is the effect of the Tribunal’s reference to reg 2.55 of the Migration Regulations 1994 (the Regulations) at [6] of its reasons;
(3)How do s 338, s 347(1)(b) of the Migration Act 1958 (the Act) and reg 4.10 of the Regulations operate together; and
(4)What is the effect of the decision in Walia v Minister for Immigration & Anor [2018] FCCA 1357 referred to in the applicant’s submission attached to the amended application?”
I make the following findings in relation to these questions.
First, as set out above, the Tribunal’s decision was that it did not have jurisdiction to review the delegate’s decision, because the application for review had not been made within the period stipulated by the Act and the Regulations.
I agree with the Minister that the Tribunal’s finding in this regard is subject to review by this Court (Xiev Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 (“Xie”)). The question as to whether it had jurisdiction is for the Court to determine. (Xie; Maroun v Minister for Immigration and Citizenship [2009] FCA 1284 and Haque v Minister for Immigration & Citizenship [2010] FCA 346).
Second, the reference to reg.2.55 by the Tribunal is the basis on which it found when the applicant was taken to have been notified of the Tribunal’s decision. This reference was plainly in error given the plain terms of reg.2.55 at the relevant time. As set out above the circumstances of this case do not fall within what is contemplated by reg.2.55.
In the current case notification of the delegate’s decision to the applicant was effected by email transmission of the notification letter. Section 494B of the Act sets out the various methods by which the Minister may give such documents to an applicant. Section 494B(5)(b) provides that transmission by email is one such method.
On the evidence before the Court, the operation of s.494C(5) means that the applicant was taken to have received the notification (sent by email) at the end of the day of transmission. In the current circumstances that is 6 September 2016.
The Tribunal’s incorrect reference to reg.2.55 does not assist the applicant now. As the Minister submits the Tribunal’s error was not material to its decision as the relevant terms (as to when an applicant is taken to have received notification) are relevantly identical as between reg.2.55, s.494B(5) and s.494C(5).
In any event, the circumstances presented irrespective of whether the Tribunal itself proceeded on an erroneous basis, revealed that given the facts as to the method of transmission (not in dispute), the operation of s.494B(5) and s.494C(5) means that the applicant is taken to have been notified at the end of 6 September 2016.
Third, as indicated above the applicable period by which an application for review to the Tribunal must be made is governed by s.347(1)(b). As set out there, the period varies depending on the type of reviewable decision as variously explained in s.338 of the Act.
For current purposes therefore, attention must be given to the interaction between s.338 and s.347(1)(b), and then reg.4.10 to which the Tribunal referred (no reference was made to s.338).
In the current case I agree with the Minister that the delegate’s decision to refuse a student visa to the applicant is a Part 5 (of the Act) reviewable decision as the conditions in s.338(2)(a), (b) and (c) are met in the circumstances of this case (s.338(2)(d) is not relevant).
In that light s.347(1)(b)(i) applies to this case:
“(1) An application for review of a Part 5-reviewable decision must:
…
(b) be given to the Tribunal within the prescribed period, being a period ending not later than:
(i) if the Part 5-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—28 days after the notification of the decision;”.
It is of note that s.338(2) provides for a 28 day period for the making of an application for review from the date of notification.
However s.347(1)(b) must be understood in light of s.347(5):
“(5) Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of Part 5-reviewable decisions (which may be decisions that relate to non-citizens in a specified place).”
As the Minister submits “prescribed” as it appears in s.347(5) means “prescribed by the regulations” (Xie).
Regulation 4.10(1)(a) was at the relevant time in the following terms:
“(1) For paragraph 347(1)(b) of the Act, the period in which an application for review of a Part 5‑reviewable decision must be given to the Tribunal:
(a) if the Part 5‑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…”
I agree with the Minister’s submissions that the “reconciliation” between s.347(1)(b)(i) (and the reference to twenty-eight days) and reg.4.10 (with reference to twenty-one days) is that s.347(1) fixes the maximum period within which applications for review may be made, but the regulations may prescribe a shorter (but plainly not a longer period) (Fahme v Minister for Home Affairs [2019] FCAFC 41)).
While the Tribunal was in error to refer to reg.2.55, it was correct to find that the relevant period for the current case was twenty-one days. The Tribunal’s finding as to when the applicant was taken to have been notified of the delegate’s decision was not affected by the erroneous reference to reg.2.55.
The Tribunal’s finding therefore, that it did not have jurisdiction because the application to it was made outside the relevant prescribed period, was correct.
The fourth issue (relating to Walia) arising from the leave to file further written submissions is addressed below.
A Further Question
Following the hearing of this matter the Full Court handed down judgment in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 (“DFQ17”). I gave both parties the opportunity to make further written submissions as to the impact, if any, of the Full Court’s judgment on the current case. Both parties filed written submissions. Although the applicant’s submissions for the most part focused on the grounds of the amended application, and not on the purpose for which the grant of leave was given (in any event see further below).
DFQ17 concerned a notification of a visa refusal. The Full Court found that the relevant letter of notification of the delegate’s decision did not comply with s.66(2) in that it did not clearly or sufficiently state a time within which the application for review must have been made to the Tribunal (s.66(2)(d)(ii)).
The Full Court found in the circumstances in DFQ17 that there were various and disparate references in the letter of notification to various times (a twenty-eight day period within which to seek review, a seven day period by which the applicant is taken to have received the letter, and the date of the letter).
The Court noted that the twenty-eight day period included the first day, weekends and public holidays. The seven day period did not include these days. In these circumstances the Court found that the calculation of the relevant time was “not a straightforward exercise” at [45] per Perrin J, with whom Farrell J at [67] agreed, and with whom Rares J agreed in relation to this point at [1]).
In DFQ17 the time by which the applicant in that case was required to make the application for review ended at 13 March 2017. The Court found that the letter of notification failed to clearly convey this information because: “…It was piecemeal, entirely obscure and essentially incomprehensible”. (at [62]).
For this reason it did not satisfy s.66(2)(d)(ii) (which was relevant to the circumstances of that case). The Tribunal was therefore, wrong in thinking it did not have jurisdiction to entertain the review application in circumstances where the failure to satisfy the applicant of the refusal of the visa in compliance with s.66(2) meant that the relevant time for the calculation of the period within which the review application had to be made had not yet begun (at [62]).
Section 66(2)(d)(ii) provides that, to properly effect notification of a visa refusal, the notification letter must, amongst other things, state the time within which the application for review must be made. That is as the Full Court found it must clearly convey to the applicant the relevant time period and date.
I agree with the Minister that the circumstances in the current case are distinguishable from those in DFQ17.
Under the heading of “Review rights” the notification letter plainly referred to a 21 day calendar period for the making of any application for review (page 1).
Under the heading of “Receiving this Letter” the applicant was advised that the notification letter had been sent by email and that the applicant would be taken to have received the letter of notification at the end of the day of transmission (page 3). The date of the notification letter was clearly stated (page 1).
On the evidence of Ms Roberts the letter was transmitted by email on the same date as that appearing on the face of the letter. That is 6 September 2016.
In the circumstances the letter in the current case did not suffer from the same defects as the letter in DFQ17. Importantly, it clearly conveyed that the applicant was to be taken to have received the notification letter on 6 September 2016.
It was clear on the face of the letter that any application for review to the Tribunal must be made within twenty-one calendar days of that date.
As the Minister submits in the current case the heading “Receiving this Letter” was consistent with what then appeared under it. This is in contrast with DFQ17, where the relevant information as to calculating the date by which the application was to be made was contained under the obscure, and in the circumstances confusing heading of: “Financial or Case Worker Assistance”.
In all therefore, in the current case the relevant calculation as to the last day by which the application for review must have been made was clear.
The Minister’s letter of notification in this regard complied with s.66(2)(d)(ii). Nor is any other failure to satisfy s.66(2), or for that matter s.66(1), apparent on the evidence before the Court.
The Grounds of the Amended Application
This leaves the grounds of the amended application. The applicant provided written submissions at the time of making the amended application, and subsequent written submissions. Although the latter should have been directed to the question arising from DFQ17, for the greater part they repeat what was in the earlier submissions, and the grounds, and what the applicant told the Court at the hearing.
The applicant’s grounds must be considered in light of the relevant statutory and regulatory provisions. The central issue arising in the circumstances in this case, as set out above, is whether the Tribunal had jurisdiction to review the delegate’s decision. The answer to that question is a matter of jurisdictional fact for the Court to consider.
As set out above the Tribunal’s jurisdiction in the current matter is governed by s.347(1)(b). That requires an application for review to be given to the Tribunal within a prescribed period. Given that the application in the current case is govern by s.338(2) of the Act (see s.347(1)(b)(i)), the relevant period is that prescribed by reg.4.10(1)(a). That is, the application to the Tribunal must be made within the period that starts from when the applicant receives notice of the delegate’s decision and ends “21 days after the day on which the notice is received”.
The evidence before the Court reveals as follows. The delegate’s decision was made on 6 September 2016. I am satisfied on the evidence of Ms Sangha and Ms Roberts that that decision was given to the applicant by email, transmitted electronically to the email address he had provided to the Minister’s department for the purposes of the application for the visa. On the evidence he consented to such communication being sent to him at that email address.
Section 66(1) of the Act provides that when the Minister, relevantly, refuses a visa he is to notify the applicant. Section 494B(5)(b) provides that one of the methods by which the Minister may give a document to a recipient for the purposes of the Act is to transmit the document electronically by email.
This must be transmitted to, relevantly, the last email address provided to the Minister by that person for the purposes of receiving documents. I am satisfied on the evidence before the Court that the Minister transmitted the document, being the letter of notification to the applicant, at the last email address he provided for that purpose.
As set out above the applicant made the claim before the Court that he had engaged a migration agent to assist him in making his application for the visa. Although it was not clear it appeared the implication was that the notification should have, perhaps, been sent to the migration agent, or that the migration agent made some unspecified mistake in the drafting of the application, or in his assistance to the applicant (a claim made without any supporting evidence). Nonetheless, what remains is that on the evidence before the Court, the last email address provided by the applicant to the Minister for the purposes of receiving correspondence was the email address he had provided in his application for the visa.
Section 494C(5) provides that when the Minister gives a document to a person by the method set out at s.494B(5) (as in this case) the person is taken to have received the document at the end of the day on which the document is transmitted.
In the current case therefore, I am satisfied that the document, being the letter of notification of the refusal of the grant of the visa, was received by the applicant at the email address he provided, at the end of 6 September 2016, being the date of transmission.
It is the case, although not raised by the applicant’s grounds, that whether the applicant read this email, or not, he is taken to have received it at the end of 6 September 2016. However, in the current case there is no complaint made by way of evidence by the applicant that he did not receive, or did not read the email, on that date.
I find on the evidence that the applicant was notified of the delegate’s decision on 6 September 2016. The letter of notification complied with the requirements set out at s.66(2) of the Act.
As set out above the period within which the applicant was required to make his application for the review commenced the day after 6 September 2016. The applicant had twenty-one days within which to make his application. That is, the application needed to have been made on or before, 27 September 2016 so as to engage the Tribunal’s jurisdiction. On the evidence it was not made until after that date. The Tribunal had no jurisdiction to review the delegate’s decision. Nor did the Tribunal, or the Court now for that matter, have discretion to extend the time by which any such application could have been made (Singh v Minister for Immigration & Citizenship [2011] FCAFC 27 at [47]).
There is nothing in the applicant’s grounds, or for that matter his submissions, to dispute the factual matters set out above.
The applicant’s grounds, in essence, are an attempt at explaining why he did not make his application within time. Given what is set out above the applicant’s grounds are in fact hopeless in this regard and lack merit. That is for current purposes they are not made out as revealing error in the Tribunal’s determination.
Ground one asserts that the Tribunal failed to take into account relevant considerations. The particulars, and as also stated by the applicant at the hearing before the Court, state that these are as follows.
The applicant relied on his representative to forward the application to the Tribunal. He did not know the time limit was twenty-one and not twenty-eight days. The migration agent did not tell him there was a time limit. He was having financial difficulties, because he lost financial support from his parents and could not afford to arrange the “prescribed fee” for the application, or to pay for his studies.
There is no evidence whatsoever before the Court that the applicant had engaged a migration agent to represent him in making the application to the Tribunal. Nor for that matter in making the application for the visa. In his application both for the visa, and the application for review the applicant provided his own residential address and an email address as the relevant points of contact. There was nothing to indicate that this was not his email address, or that he did not have access to it.
Nor did the applicant make reference to a migration agent, or financial difficulties in his response to the Tribunal when he was asked to comment on the validity of his application for review (CB 42). Nor did he provide any evidence of this to the Court, despite opportunity to do so.
In any event, even if the applicant did have a migration agent, and did suffer from financial difficulties, this does not assist him as the Tribunal had no discretion to extend time. I note for the sake of completeness that even if the migration agent failed to make the application within the relevant time there is nothing from the applicant now, nor did the applicant suggest it to be the case, that the agent acted fraudulently.
Ground two asserts that the Tribunal was biased and denied the applicant natural justice by not inviting him to a hearing.
The Tribunal had no jurisdiction to review the delegate’s decision. In those circumstances the principles of natural justice or procedural fairness are not relevant. Division 5 of Part 5 of the Act (deciding with the natural justice hearing rule) was not engaged in the circumstances. The Tribunal was not obliged to invite the applicant to a hearing pursuant to s.360(1) of the Act. Nor, contrary to the applicant’s assertion, does s.424 apply to the applicant’s circumstances. That is he did not apply for a protection visa to which that section relates.
The allegation of bias is hopeless in the circumstances. Such serious allegations must be distinctly made and clearly proven (Minister for Immigration v Jia Legeng [2001] HCA 17). The applicant does not now explain how the Tribunal did not bring an open mind to its consideration.
Even though the Tribunal erred in the application of reg.2.55 this does not reveal bias. The Tribunal was, on the facts, still correct to find that the applicant was notified of the decision on 6 September 2016. Bias is not revealed in circumstances where the Tribunal relied on the wrong regulation, but in the circumstances made the correct finding.
It may be that, with reference to particulars six and seven to ground two the applicant seeks to say that the Tribunal was biased because the Tribunal did not accept his explanation as to why he could not pay the application fee. This was because his father was in a serious legal and medical situation and he stopped financial assistance to the applicant. He blames his migration agent for not telling the Minister’s department about these difficulties.
Again there is no evidence whatsoever that he had engaged a migration agent to represent him in his application to the Minister’s department. In fact the applicant told the Department that he had not received any assistance in completing the application form (CB 3).
In any event, even if this claim were true, it does not, and could not on the facts, have affected the question of whether the Tribunal had jurisdiction given there was no discretion to extend time (Singh v Minister for Immigration & Citizenship [2011] FCAFC 27 at [47]).
In his written submissions the applicant states that he understands the limitation on the Tribunal in relation to extending the time.
This raises the question as to why he made his application to the Court, in circumstances where he does not challenge the factual basis for the Tribunal’s lack of jurisdiction, but in effect argues that the Tribunal should have extended time.
In his submissions the applicant also states “[i]n several cases of delay in lodging applications for judicial review” [Emphasis added]. The applicant did not delay his application for judicial review, it was his application for merits review that was out of time.
In any event, even if the applicant meant to say this, he refers to a judgment of one of the judges of this Court where the Court criticised the fact that the Tribunal was unable to extend time.
The applicant refers to Walia, particularly at [30], where the Court made comments about the “…inflexible regime with which the tribunal operates”, and “the harshness of the inflexible legal regime”.
That may or may not be the case. But in my respectful view I do not express any opinion about this as invited by the applicant to do so. In my view it is not for this Court to engage in policy criticisms of this type in judgments. They are matters for the Parliament, and the government of the day.
Further, all that such criticisms or observations, in judgments can really achieve, as is revealed in this case, is to encourage applicants, such as Mr Singh to make applications to this Court in circumstances where he otherwise asserts that there was no legal error in the Tribunal’s determination.
Conclusion
None of the applicant’s grounds of the amended application reveal that the Tribunal was in error to ultimately determine that it did not have jurisdiction to review the delegate’s decision. Nor do the other matters raised by the Court assist the applicant in this regard. It is appropriate that the application to the Court be dismissed. I will make the appropriate order.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 5 August 2019
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