Singh v Minister for Immigration

[2018] FCCA 3019

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3019

Catchwords:

MIGRATION – Migration Act 1958 (Cth) – application for judicial review of decision of Administrative Appeals Tribunal that it had no jurisdiction to review a decision of a Delegate of the Minister for Immigration not to grant to him a Partner (Residence) (Class BS) (Subclass 801) visa because the applicant applied to the Administrative Appeals Tribunal outside of the 21 day time limit imposed by s.347(1)(b) of the Migration Act 1958 (Cth) and reg.4.10 of the Migration Regulations 1994 (Cth) – no jurisdictional error identified by the applicant – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.66, 338, 347, 494B, 494C, 494D

Migration Regulations 1994 (Cth)

Cases cited:
Calimoso v Minister for Immigration [2016] FCA 1335
SZJQC v Minister for Immigration [2008] HCASL 66

Applicant: KARAM SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 542 of 2017

Judgment of: Judge Dowdy

Hearing date: 17 October 2018

Delivered at: Sydney

Delivered on: 17 October 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent: Mr C. O'Sullivan

Solicitors for the First Respondent: Australian Government Solicitor

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 23 February 2017 is dismissed.

2. The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $4,000.

3. Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant have up to and including 19 November 2018 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 542 of 2017

KARAM SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

1. The Applicant in this proceeding is a male citizen of India aged 32 years, having been born on 15 December 1985. 

2. By Application filed in this Court on 23 February 2017 he seeks to quash and have re-determined a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 25 January 2017 which found that it lacked jurisdiction to review the decision of a Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 7 December 2016 to refuse to grant to him a Partner (Residence) (Class BS) (Subclass 801) visa (Partner visa).

Background

1. On 28 November 2012, the Applicant lodged his application for the Partner visa onshore on the basis of being in a spousal relationship with an Australian citizen, Mrs Angie Marie Doris Turner (sponsor).  They had married in Lidcombe in New South Wales on 9 October 2012.  The Applicant had been granted a Partner (Temporary) (Class UK) (Subclass 820) visa on 18 September 2014, which he had to have been granted before he could be granted the Partner visa. 

2. On or around 18 July 2016, the Applicant nominated a new migration agent and lawyer, being Mr Chandrika Subramaniyan of Success Lawyers and Barristers of Wentworthville in New South Wales. In a Form 956A the Applicant nominated the email address of Success Law (the email address) as the address to receive communications from the Department.

Decision of Delegate

1. By Decision Record dated 7 December 2016 the Delegate refused to grant the Partner visa to the Applicant and on the same day, namely 7 December 2016, sent a copy of the notification of refusal letter and the Decision Record itself to the email address.  In the notification of refusal letter, the Department advised that the Applicant had 21 days in which to apply to the Tribunal for review. 

2. The basis of the refusal was in large that on 11 March 2016 officers of the Department in India had visited the Applicant’s mother and spoken to her, other relatives of the Applicant and other villagers, who all said that the Applicant was not married, engaged or in any relationship and that, in fact, they were waiting for his return to India when his marriage would be organised from amongst the proposals which his mother had received.

3. This adverse information had been given to the Applicant by letter to the Applicant’s first migration agent prior to the appointment of Success Law and which had invited comment thereupon, but the Applicant had not given any response to the Department.  For this and other reasons as expressed in her Decision Record, the Delegate refused to grant the Partner visa to the applicant.

Tribunal Decision of No Jurisdiction

1. Unfortunately the Applicant did not lodge his application for review with the Tribunal until 4 January 2017, when he needed to lodge it by 28 December 2016.  On 9 January 2017, the Tribunal wrote to the Applicant via Success Law inviting him to comment on the validity of his review application.

2. By letter dated 30 January 2017 Success Law responded that the Applicant had been employed as a truck driver and was working for a few weeks outside Sydney between 10 and 23 December 2016, and during this period he could not check his emails, which had contained the notified primary decision as forwarded to him. However, when he checked his emails on 23 December, the Applicant realised the time factor and could not find his solicitor or any other migration agent as the holiday period had started at that time. It was only on 4 January 2017 that he could contact any legal professional for consultation, and he had consulted Mr Subramaniyan to lodge immediately his application for review on the same day.  At the same time, the Tribunal was given a statutory declaration of the Applicant, which confirmed what was stated in the letter from Mr Subramaniyan. 

3. By Decision Record of 25 January 2017, the Tribunal found that it had no jurisdiction to review the Delegate’s decision. The Tribunal noted that pursuant to s.347(1)(b) of the Migration Act 1958 (Cth) (the Act) and reg.4.10 of the Migration Regulations 1994 (Cth) (Regulations) an application for review of the Delegate’s decision was required to be lodged within 21 days and that, in fact, the application for review had been lodged outside that time. 

4. Further, the Tribunal considered that there was nothing to indicate that the Decision Record of the Delegate was not correctly notified or that the Applicant, through his agent, did not receive the decision on the date stated, being 7 December 2016. 

5. The Tribunal went on to find that the Applicant had been notified in accordance with s.494C of the Act, the Applicant did not apply within time and that the Tribunal had no discretion to extend the time and accordingly concluded that it had no jurisdiction to deal with the application for review.

Grounds of Application for Review in this Court

1. The Grounds are as follows: 

   1. The decision of the Tribunal dated 25/01/2017 notified on 27/01/2017 is affected by jurisdictional error because the Tribunal failed to take into account a relevant consideration. 

   2. The Tribunal failed to determine that the lodgement of review application after the prescribed period was due to circumstances beyond control. 

Consideration

Grounds 1 and 2

1. By both Grounds, the Applicant appears to allege that the Tribunal failed to consider whether an extension of time up to 4 January 2017 ought to have been granted to the Applicant. 

2. However, the simple fact of the matter is that the Tribunal was correct to find that it did not have jurisdiction in this matter in circumstances where:

   (a) the Applicant was validly notified of the Delegate’s decision;

   (b) the application to the Tribunal was made outside of the prescribed time period; and

   (c) the Tribunal did not have any discretion to consider applications for review lodged outside of the prescribed time period. 

3. The notification letter of the Delegate’s decision is in a form consistent with s.66 of the Act. The notification letter was sent by email on 7 December 2016 to the Applicant’s authorised recipient at the last email address notified to the Department. The Applicant is taken to have received that notification letter at the end of the day on the day that the email was sent, namely, 7 December 2016: see s.494C(5) and s.494D(2) of the Act. This would be so even if the Applicant had not received the notification due to error on the part of his migration agent.

4. The powers of the Tribunal are set out in Part 5 of the Act. The effect of s.347(1)(b) of the Act and reg.4.10 of the Regulations is that the prescribed period for review by the Tribunal of a Part 5-reviewable decision is 21 days. That 21 day period was specified in the notification letter. In these circumstances, the final date for the lodgement of a review application was 28 December 2016, and the application was lodged on 4 January 2017, and therefore lodged out of time. In Calimoso v Minister for Immigration [2016] FCA 1335 Charlesworth J at [29] said as follows:

   [29] The time period in which an application for review must be filed is absolute. The Tribunal has no discretion to extend the time in which an application may be brought…

5. Further, in SZJQC v Minister for Immigration [2008] HCASL 66 Kirby and Heydon JJ in the High Court likewise said:

   [3] There is no statutory power for the Tribunal, or anyone else, to extend the time limit, whatever the reasons for the default.

6. In my view, the Tribunal was correct to find under s.494C(5) of the Act, since the Decision Record of the Delegate had been transmitted by email (as permitted by s.494B(5)(b)), that the Applicant was to be taken to have received it on that date on which it was sent, being 7 December 2016. This meant that his application for merits review had to be lodged with the Tribunal by 28 December 2016, but it had not been received by the Tribunal until 4 January 2017.

7. I note in this respect that under s.494D of the Act the Minister is taken to have given a document to a person if that person has given written notice of the name and address of an authorised recipient to the Minister, and the document has been given to that authorised recipient, as was the case here.

8. The decision of the Delegate was a Part 5-reviewable decision as a result of the combined effect of s.338(2)(b) and s.338(9) of the Act. This meant that by the combined effect of s.347(1)(b) and reg.4.10(1) of the Regulations, that the period in which the Applicant had to lodge his application to the Tribunal ended 21 days after the day on which he received the Delegate’s decision, namely on 28 December 2016.

Conclusion

1. In my view, neither Ground 1 nor 2 establish that the decision of the Tribunal is affected by jurisdictional error, and the Application filed in this Court is to be dismissed. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  26 October 2018