Singh v Minister for Immigration and Citizenship
[2021] FCCA 1426
•8 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Singh v Minister for Immigration and Citizenship [2021] FCCA 1426
File number(s): MLG 1229 of 2013 Judgment of: JUDGE DAVIS Date of judgment: 8 July 2021 Catchwords: MIGRATION – Migration Review Tribunal – Partner (Temporary) (Class UK) Visa – time for lodgement of application with Tribunal – whether the MRT erred in finding that it had no jurisdiction to determine an application made out of the time limited by s 347(1)(b) of the Migration Act 1958 (Cth) Act for review of a decision of a delegate to refuse a Partner (Temporary) (Class UK) Visa – time limits in Migration Regulations (1994) r 4.10 Legislation: Migration Act 1958 (Cth) ss 338 (2)(a), 347(1)(b), 412(1)(b), 494B and 494C; Migration Regulations 1994 (Cth) r.4.10 Cases cited: Asaduzzaman v Minister for Immigration & Multicultural Affairs [2001] FCA 793
Beni Minister for Immigration and Border Protection [2018] FCAFC 228
Fenando v Minister for Immigration and Multicultural Affairs (2000) 97 (FCR) 407
MZZDJ v Minister for Immigration and Border Protection [2013] FCAFC 156
VEAN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 311
Number of paragraphs: 77 Date of last submission/s: 21 May 2021 Date of hearing: 24 May 2021 Place: Melbourne Counsel for the Applicant: Self-Represented Solicitor for the Respondents: Mr Hunter Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 1229 of 2013 BETWEEN: HARJAP SINGH
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
MIGRATION REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DAVIS
DATE OF ORDER:
8 JULY 2021
THE COURT ORDERS THAT:
1.The Application be dismissed.
2.The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $7,467.
REASONS FOR JUDGMENT
JUDGE DAVIS:
By an application filed in this Court on 7 August 2013 (‘Application in this Court’), the Applicant seeks judicial review of a decision made 10 July 2013 by the Migration Review Tribunal (as it then was) (‘MRT’).[1] By that decision, the MRT determined that it did not have jurisdiction to review a decision of a delegate of the Minister (‘delegate’) to refuse the Applicant the grant of a Partner (Temporary) (Class UK) visa (‘Visa’).
[1] On its face, the Application in this Court seeks to impugn a decision of the Refugee Review Tribunal made 11 July 2013. There was no such decision. As developed below, in all of the circumstances, it is plain that by his Application in this Court the Applicant is seeking to review the decision of the MRT made the previous day, 10 July 2013. At the hearing before me on 24 May 2021, the Applicant accepted that this was the case.
For the reasons that follow, I have decided to dismiss the Application in this Court.
BACKGROUND
The Applicant is an Indian national. The Applicant arrived in Australia on 23 April 1993 as the holder of a visitor (Subclass 673) visa. He applied for a protection visa on 24 May 1993. That application was refused on 23 August 1993. The Applicant sought judicial review of that decision, however he withdrew that application on 20 June 2008.
On 1 April 2008, the Applicant applied for Ministerial intervention. He subsequently applied for the Visa on the basis of his marriage to Ms Marsel Celeste Maxwell. The Applicant was then granted an associated bridging visa subclass WE 050.
The delegate refused to grant the Applicant the Visa and notified the Applicant of this by letter dated 21 February 2021 attaching the relevant decision record. Amongst other things, the decision record states that, even though the Applicant married the sponsor in 2007, there was no evidence to prove that the Applicant and sponsor were in a genuine and continuous relationship. The delegate found that no documents were provided by the Applicant to establish his spousal relationship with the sponsor.
On 9 April 2013, the Applicant applied to the MRT for review of the delegate's decision. Written submissions were filed by the Applicant and received by the MRT on 27 May 2013.
On 10 July 2013, the MRT determined that it did not have jurisdiction to review the decision of the delegate not to grant the Visa because the Applicant’s application for review was made on 9 April 2013 and thus out of time.
On 21 May 2013, the MRT wrote to the Applicant inviting him to comment on the validity of his application for review. Amongst other things, that letter said:
I am of the view that your application is not a valid application as it was not lodged within the relevant time limit.
If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, within 14 days of receiving this invitation…
…
The Applicant filed his Application and affidavit in support in this Court on 7 August 2013. The Applicant was then, and has remained, unrepresented.
Orders were made by Registrar Caporale on 16 October 2013 dismissing the Application pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001.
On 6 November 2019, Judge Riethmuller made further orders, relevantly including that:
(a) The matter be listed for Final Hearing on a date to be advised.
(b)Paragraphs 2 and 3 of the Orders of Registrar Caparole made on 16 October 2013 be set aside.
(c) The Minister file and serve a Court Book by 31 January 2020.
(d)The Applicant file and serve 28 days before the Final Hearing, any amended application, any affidavits, written submissions and a list of authorities.
(e)The Minister file and serve written submissions and any affidavits 14 days before the Final Hearing.
The final hearing was subsequently listed to be heard before me on 20 April 2021.
The Applicant did not file any written submissions or any of the other documents contemplated by the order of Judge Riethmuller made 6 November 2019.
The Minister (being the First Respondent) filed submissions on 6 April 2021.
When the matter came before me on 20 April 2021, the Applicant appeared unrepresented and with an interpreter. Mr Hunter, of the solicitors for the Minister, appeared on the Minister’s behalf. The Second Respondent had taken no active role in the proceeding and did not appear.
At my invitation, the Applicant sought an adjournment to allow him to obtain legal representation. For this purpose, I adjourned the matter to 24 May 2021 for final hearing.
The central issue in this review application is whether the Tribunal had the power to extend time to deal with the Applicant’s application for review of the delegate’s decision to refuse to grant the Visa.
I raised some questions about that issue with Mr Hunter, on behalf of the Minister, on 20 April 2021. Ultimately, I directed that the Minister file further submissions on this issue by 27 April 2021. The Minister filed supplementary submissions in accordance with this direction.
The Minister also filed further supplementary submissions on 21 May 2021.
APPLCIATION IN THIS COURT
As noted above, by his Application in this Court, the Applicant should be taken to have nominated the decision under review as that of the MRT made 10 July 2021 and, at the hearing before me on 24 May 2021, the Applicant accepted that this was the case.
Again, although by his application the Applicant nominated the relevant decision as being a decision of the Refugee Review Tribunal made 11 July 2013, there was no such decision. However, on the previous day, 10 July 2021, the MRT had decided that it had no jurisdiction to determine the Applicant’s application made to it on 9 April 2013 to review the decision of the delegate to refuse the Visa.
Moreover, the fact that the decision of the MRT made 10 July 2013 was the only decision which the Applicant sought to review by his Application in this Court is supported by the fact that the Applicant only filled out the standard form part of the application which referred to a “Decision made by a tribunal”.
Further, the Applicant had brought his application for review of the delegate’s decision to the MRT. It was the decision of the MRT that it has no jurisdiction to determine that application which foreclosed on the ventilation by the Applicant of his complaints about the delegate’s decision.
When considering the Applicant’s Application to this Court, it ought be remembered that the delegate’s decision which the Applicant sought to review was the delegate’s refusal of the Visa; that is, a Partner (Temporary) (Class UK) visa. The delegate’s decision was not to refuse a protection visa. By the time of the delegate’s refusal to grant the Visa, no protection visa was sought.
Despite the matters referred to above, by the Applicant’s application for review, he sought relief including the following:
(a)An order that the decision of the Tribunal or Minister be quashed.
(b)A writ of mandamus directed to the Tribunal or Minister, requiring them to determine the applicant’s application according to law.
(c)A declaration that the recommendation of the Independent Protection Assessment Reviewer was not made in accordance with law, by reason of the ground/s of this application.
(d)An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from relying upon the recommendation of the Independent Protection Assessment Reviewer.
Also, despite the matters raised above, the Applicant’s grounds for review were as follows:
Ground 1
The Refugee Review Tribunal made a Jurisdictional Error, by not taking into account the material provided by the applicant regarding the sub-class applied me, as evidence of the atrocities committed on Sikhs. The evidence was not taken in to the consideration, the MRT the MRT only relies upon the findings of the department below.
Ground 2
The Migration Review Tribunal decision has caused a great miscarriage of the justice, the did not took in to the consideration that the couple has a genuine relationship, rather the MRT discussed all issues which are not the part of the subject matter. The MRT badly failed to address the issue in question, although the same matter was addressed, in that case the matter in issue are almost the same, but the MRT has taken up new decision. The MRT in this way has committed the jurisdiction error which the applicant requests that the both decision were made on what ground.
Ground 3
The decision simply rewrites my claim and failed to consider the truth behind my statement. According to law The MIGRATION REVIEW TRIBUNAL was bound to look into my decision, which is now pending before this honourable Tribunal.
Ground 4
The MIGRATION Review Tribunal decision suffers from bias, and inability to take into account relevant considerations, as such the genuine relationship in between the parties, this itself proves that there has been a confusion in the mind of the MRT..
Ground 5
The decision of Migration Review Tribunal suffers from bias, as they tribunal failed to form their own opinion, and formed the opinion based on the contrary against the evidence of the applicant case, based on the facts and circumstance.
Ground 6
The MRT has merely reproduced all my submission, and did not give consideration to the documents like marriage certificate and the evidence provided of a genuine marriage, rather they made two parts of the matter and delivered two different decision.
Ground 7
It was mandatory for the Migration Review Tribunal to address the issues and as such the whole decision is without jurisdiction and lawful authority.
Ground 8
The Refugee Review Tribunal member has given more weight and attention to the material irrelevant such as my name, date of birth etc. All of this demonstrate the ambiguity of the Migration Review Tribunal.
Ground 9
There has no single issue addressed by the Migration Review Tribunal. It is submitted that the decision was rewritten and the no other matters were discussed apart from the jurisdiction, but the MRT failed to discussed the jurisdiction under which their hands were tied.
Ground 10
My case was dealt with a hasty manner, with no regard to my persecution. Some of the old rulings of the Federal Court were cited, which has been over ruled.
Ground 11
The MRT has failed to answer the basic question regarding the issues in question and failed to address the basic issues.
Ground 12
There has been a gross violation of law in my case and I request that judicial interference is a matter of principal and the judicial interference be allowed in my case
(errors in original)
THE HEARING ON 24 MAY 2021
At the commencement of the adjourned hearing on 24 May 2021, I confirmed that Mr Hunter, who appeared for the Minister, had provided the Applicant with a copy of the Minister’s further submissions filed 21 May 2021.
I explained to the Applicant that the real thrust of the further submissions made by the Minister on 21 May 2021 was the same as that of the previous submissions made on the Minister’s behalf. That is, the thrust of the most recent submissions was that the Applicant’s application for review of the MRT decision made 10 July 2013 was made out of time, with the consequence that the MRT had no jurisdiction to hear that application.
In any event, I directed that the interpreter translate the submissions to the Applicant and stood the matter down for this purpose.
Immediately prior to the matter being stood down so that the interpreter could interpret the submissions to the Applicant, the Applicant sought to hand up a letter from him addressed to me. I directed that he provide a copy to Mr Hunter, for the Minister. I then read the letter.
The letter did not purport to articulate any argument in support of the Applicant’s Application in this Court for review of the MRT’s decision. Rather, the letter was a moving and heartfelt plea by the Applicant for me to consider his circumstances and permit him to be an Australian citizen. Amongst other things, by the letter, the Applicant in effect stated that he had spent 28 years in Australia – which he said was nearly half of his life – his mother and father had each died here, he had no home in India and aspects of his health were not good. The letter also stated that the Applicant promised to be a good Australian citizen.
Upon the matter resuming, I thanked the Applicant for the letter and explained that I had read it.
I then explained to the Applicant that this was the final hearing of his application for review of the decision of the MRT made 10 July 2013. The Applicant confirmed that he understood this. I reiterated that this decision was to the effect that the MRT had no jurisdiction to deal with his application made 9 April 2013 for review of the Minister’s decision to refuse the grant of the Visa. I again explained that the MRT reached its decision on the basis that the Applicant’s application for review was filed out of time.
I then invited the Applicant’s attention to his Application in this Court.
I commenced by going through all of the relief sought by the Applicant, including, in effect, that stated at [25], above.
I then asked the Applicant to explain, in his own words, why he said that the decision of the MRT made on 10 July 2013, which he sought to set aside, was wrong or made or conducted unfairly. I explained to him that this was his opportunity to address me on those matters and that he needed to persuade me of them and accordingly to set aside the decision.
I invited the Applicant’s attention to his grounds for review, as set out in his application and directed that each of them be translated to the Applicant. I then invited him to address me with respect to them. I told the Applicant that the translator would remind him of each of his grounds and that I would then ask him to address me on these grounds and anything else which he wished to say about why the decision was reached unfairly or was wrong.
I read the Applicant’s letter aloud. I explained to the Applicant that I was not able to deal with his application before me on the basis of his letter.
I told him that I was not able to consider the merits of his application to stay in Australia; that was not my role. I reminded him that, as I had explained to him at the start of the hearing, my role entailed hearing him explain to me why he said the decision of the MRT made on 10 July 1993, to the effect that it had no jurisdiction to determine his application for review lodged on 9 April 1993, was wrong or made unfairly. I also reiterated that he had identified grounds in his application and that I wanted to know what it is he had to say about those grounds.
Through the interpreter, the Applicant then submitted: “Whatever my situation, I put in that – this letter – and then he pointed to this application – and I will not argue with your decision, whatever decision you make…”.
I again reminded Applicant that this was his opportunity to address me on his grounds, again invited his attention to them, told him that I would read the first ground as an example and asked him what he had to say about it. The Applicant then made a submission the broad thrust of which was about discrimination against Sikhs in India.
I went on again to ask the Applicant whether there was anything further that he wished to say in support of his application – including about any of his grounds and how they showed that the MRT’s decision that it had no jurisdiction to review the decision of the delegate was wrong or made unfairly.
The Applicant again said “Whatever situation I’m in, I’ve explained to you and I’ve told you and everything is in the letter”...
Later in the hearing, following the submissions made on behalf of the Minister, I again explained to the Applicant that the Minister had argued that the MRT’s decision was correct and asked him whether he had anything to say in response to the Minister’s submissions. I understood the Applicant in effect again to refer me to his letter and indicate that he did not wish to say more.
Mr Hunter, on behalf of the Minister, spoke to his written submissions. In particular, Mr Hunter took me through the statutory provisions and regulations set out below and put the Minister’s contentions to how they were engaged.
Mr Hunter then took me through various authorities which he submitted were binding on me.
The purpose of these submissions was to show that the MRT had not erred by deciding that:
(a)the Applicant’s application for review to the MRT was out of time;
(b)the MRT had no power to extend time; and accordingly,
(c)the MRT had no jurisdiction to hear and determine the Applicant’s application for review to the MRT.
I deal below with the central legislation and authorities to which Mr Hunter referred me.
Section 338 of the Migration Act 1958 (Cth) (Migration Act) relevantly provided as follows:
338 Decisions reviewable by the Migration Review Tribunal
(2) A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non-citizen a visa is a MRT-reviewable decision if:
(a)The visa could be granted while the non-citizen is in the migration zone; and
(b)The non-citizen made the application for the visa while in the migration zone; and
(c)The decision was not made when the non-citizen:
i.Was in immigration clearance; or
ii.Had been refused immigration clearance and had not subsequently been immigration cleared; and
(d)Where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:
i.The non-citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or
ii.An application for review of a decision not to approve the sponsor has been made, but, at the time the application review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.
Section 347(1)(b) of the Migration Act provided as follows:
347 Application for review by Migration Review Tribunal
(1) 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
ii.If the MRT-reviewable decision is covered by subsection 338(5), (6), (7) or (8) – 70 days after the notification of the decision or
iii.If the MRT-reviewable decision is covered by subsection 389(9) – the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision; and
(c)Be accompanied by the prescribed fee (if any).
The prescribed period, for the purpose of s 347(1)(b) of the Act, was defined in the Migration Regulations (1994) (Cth) (Regulations) as follows:
4.10 Time for lodgement of application with Tribunal (Act, s 347)
(2) 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; or
(b)if the MRT-reviewable decision is mentioned in subsection 338(3) r (3A) of the Act – starts when the applicant receives notice of the decision and ends at the end of 7 working days after the day on which the notice is received; or
(c)if the MRT-reviewable decision is mentioned in subsection 385(5), (6), (7) or (8) of the Act – starts when the applicant receives notice of the decision and ends at the end of 70 days after the day on which the notice is received; or
(d)if the MRT-reviewable decision is prescribed under subsection 338(9) 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.
Section 494B of the Migration Act relevantly provided as follows:
494B Methods by which Minister gives documents to a person
Coverage of section
(1) For the purposes of provisions of this Act or the regulations that:
(a)Require or permit the Minister to give a document to a person (the recipient); and
(b)State that the Minister must do so by one of the methods specified in this section;
The methods are as follows.
…
Dispatch by prepaid post or by other prepaid means
(4)Another method consists of the Minister dating the document, and then dispatching it:
(d)Within 3 working days (in the place of dispatch) of the date of the document; and
(e) By prepaid post or by other prepaid means; and to:
i.The last address for service provided to the Minister by the recipient for the purposes of receiving documents; or
ii.The last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; or
iii.If the recipient is a minor – the last address for a carer of the minor that is known by the Minister
Section 494C of the Migration Act relevantly provided as follows:
494C When a person is taken to have received a document from the Minister
Dispatch by prepaid post or by other prepaid means
(4)If the Minister gives a document to a person by the method in subsection 494(B)(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a) If the document was dispatched from a place in Australia to an address in Australia – 7 working days (in the place of that address) after the date of the document; or
(b) In any other case – 21 days after the date of the document.
…
The decision of the MRT which is under review and the statement of reasons for that decision provided as follows:
Statement of Decision and Reasons – 11 July 2013:
Application for Review
An application has been lodged for review of a decision of the Minister for Immigration, to refuse to grant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The review application was lodged with the Tribunal on 9 April 2013. For the following reasons, the Tribunal has found that it has no jurisdiction as the application was not made in accordance with the relevant legislation.
Pursuant to s 347(1)(b) of the Act and r.4.10 of the Migration Regulations 1994, an application for review of this decision has to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements.
The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 21 February 2013 and dispatched by post. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
On 21 May 2013 the Tribunal wrote to the applicant noting that it appeared the applicant had not been lodged within the relevant time limit, and inviting him to comment on whether a valid application had been made.
On 27 May 2013 the Tribunal received a letter from the applicant. The letter was headed “This Submission covers both letters of the MRT letter for validity and submission”. The content of the letter addressed the history of the visa application and raised a number of issues with the decision of the delegate. The last paragraph of the letter states:
It is requested that keeping in view the above facts, and circumstances the inherent powers in the Tribunal on the special compelling grounds and special circumstances may kindly be extended towards the couple as they are now in the full commitments of their respective lives to each other. The applicant further requests that this matter. The applicant requests that the matter of the applicant may kindly be assessed in the amendment came on to the force in the years 2009 wherein the protection visa applicants are allowed to make a valid application on the basis of the spouse case/matter.
On 3 June 2013 the Tribunal received a letter dated 29 May 2013 from the applicant. The letter stated:
I received your letter today. I am writing this letter to apologise for the delayed submission of the application for review. My MRT Case number is 1305276.
Please forgive my delay in submission and review my application as I was unaware of this mistake due to my limited English and no assistance from a lawyer.
I would like to take this opportunity to thank you and request you for reviewing my application.
The Tribunal has considered the correspondence received from the applicant. Unfortunately, the Tribunal has no discretion in relation to the time limits in which an application for review must be lodged in order to be a valid application.
The Tribunal finds that in accordance with s. 494C of the Act, the applicant is taken to have been notified of the decision on 4 March 2013. Therefore the prescribed period within which the review was not received by the Tribunal ended on 25 March 2013. As the application for review was not received by the Tribunal until 9 April 2013 it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.
Decision
The Tribunal does not have jurisdiction in this matter.
CONSIDERATION
In the end the Applicant did not articulate any viable legal basis to assail the MRT’s decision.
It must be borne in mind that the MRT decision was to the effect that it had no jurisdiction to determine the Applicant’s application to review the delegate’s decision because that application was given outside the statutory period.
It formed no part of the Applicant’s case that his application to the MRT was made on time. Indeed, tellingly – as the MRT’s decision records – the Applicant wrote to the MRT on 29 May 2013 apologising for the delayed submission of his application for review. Again, this letter was tendered as part of the Court Book.
In any event, for the reasons that follow, I agree with the submissions of the Minister that the MRT was correct to find that it had no jurisdiction to determine the Applicant’s application to it to review the delegate’s decision.
The starting point is that the delegate’s decision was an MRT reviewable decision covered by s 338 (2) of the Migration Act. This is because, for example, under s 338 (2)(a) the Visa could have been granted to the Applicant while he was in the migration zone.[2] The Visa was not a protection visa.
[2] Relevantly, s 5 of the Migration Act defines the migration zone to include the States and Territories of Australia.
Accordingly, pursuant to s 347(1)(b)(i), an application for review of that decision had to be made in the approved form and given within the prescribed period. That section further provided that, for an MRT reviewable decision covered by s 338(2), the prescribed period was to be a period ending not later than 28 days after notification of the decision.
The relevant period was prescribed under regulation 4.10 of the Regulations, which I have extracted above. That period was the period which starts when the Applicant receives notice of the decision and concludes at the end of 21 days after the day on which the notice is received.
The MRT’s decision records, that the material before the Tribunal indicated that the Applicant was notified of the decision by letter dated 21 February 2013 and dispatched by post. The letter of 21 February 2013, which was in the Court Book, indicates that it was sent by registered post on that day.
Again, it was not the Applicant’s case that his application to the MRT was made on time. Indeed, as I noted above, the Applicant wrote to the MRT in effect, conceding that it was not.
The MRT found that, pursuant to s 494C, the delegate’s letter of 21 February 2013 was deemed to have been received by the Applicant on 4 March 2013. This is 7 working days after it was sent. The MRT also found that any application by the Applicant for review of the delegate’s decision was therefore due on 25 March 2013.
At relevant times, there was no provision in the Migration Act permitting the MRT to extend the time for the Applicant to lodge his application for review.
As the Minister submitted, the fact that such time could not be extended is supported by considerable authority. Some of that authority arises out of decisions which are reviewable under Part 5 of the Migration Act, such as the instant case. Some of it, by parity of reasoning, arises out Part 7 reviewable decisions.
For example, in MZZDJ v Minister for Immigration and Border Protection [2013] FCAFC 156, the Full Court held at [19] with respect to s 412(1) – a provision similar to s 347(1)(b) but in the Part 7 context – that:
‘the Act imposes strict and non-extendable time limits on the lodging of applications for review of protection visa decisions…The Act contains no provision authorising the extension of this time limit.’
Counsel for the Minister also directed me to VEAN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 311. That case was also, in part, concerned with s 412(1)(b) of the Migration Act. The Full Court stated at [32] that:
‘It was also contended by counsel for the appellant that the Tribunal had the power to ‘override’ the time limitations prescribed by s 412(1)(b) if the justice of the case required it.’
This Argument was rejected by the Court at [33]. The Court observed that counsel for the Applicant had cited no authority in favour of this proposition and cited Fenando v Minister for Immigration and Multicultural Affairs (2000) 97 (FCR) 407 (Fernando) against it.
Counsel for the Minister also referred me to Asaduzzaman v Minister for Immigration & Multicultural Affairs [2001] FCA 793. While the case is less recent, it relevantly deals directly with s 347(1)(b).
In that case, at [6] and [7] Justice Lindgren applied the Full Court’s reasoning with respect to s 412(1)(b) in Fernando to the interpretation of s 347(1)(b). At [7] his Honour states:
‘Clearly the Full Court's decision applies also to the 21-day time limit for an application to the Tribunal for review of an MRT-reviewable decision.’
The more recent decision of the Full Court in Beni Minister for Immigration and Border Protection [2018] FCAFC 228 is consistent with the relevant reasoning in the above cases. That decision arose out of a decision by the Administrative Appeals Tribunal (AAT), and, in turn, this Court, that the AAT had no jurisdiction to determine an application for review of a decision by a delegate to refuse a visa made out of the time prescribed by s 347(1)(b). Amongst other things, broadly speaking, that decision concerned whether amendments to the Administrative Appeals Tribunal Act 1975 (Cth) had the consequence that that the AAT had power to extend the relevant time. The relevant amendments were not in force at times relevant to the instant case. In any event, the Full Court held that they were not effective to extend the relevant time.
For the sake of completeness, I note that, although the Applicant’s grounds make an allegation of bias, unsurprisingly, he filed no evidence to support this ground.
As reflected in the extract above of the MRT’s decision record, the decision which the Applicant seeks to impugn was made by the MRT in writing after it had written to the Applicant “noting that it appeared the application had not been lodged within the relevant time limit, and inviting him to comment on whether a valid application had been made”.
By his written submissions filed 6 April 2021, the Minster submitted as follows:
….the applicant has also made no attempt to comply with the requirement that his serious allegation of actual bias be firmly and distinctly made and clearly proven. It is a rare case in which a court will find that a decision-maker has breached the natural justice hearing rule by exhibiting bias based simply upon the decision-maker’s reasons. The same is the case in relation to apprehended bias. Ordinarily a party would need to show some conduct on the part of the decision maker, apart from the decision maker’s expression of the decision maker’s reasons, which would indicate that the decision maker has been guilty of pre-judgement or was in any way biased.
It is clear that the Applicant has not made out any case for bias – indeed, ultimately, he did not press any such case.
Moreover, it is not apparent to me how any such case might have been made in all of the circumstances
CONCLUSION
The application must be dismissed.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Davis. Associate:
Dated: 8 July 2021
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