Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 1061
Federal Circuit and Family Court of Australia
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1061
File number(s): SYG 1889 of 2018 Judgment of: JUDGE LAING Date of judgment: 19 December 2022 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – whether the Tribunal lacked jurisdiction due to the application to it being filed out of time – application dismissed. Legislation: Migration Act 1958 (Cth) ss 66, 338, 347, 494B, 494C
Migration Regulations 1994 (Cth) rr 2.16, 4.10, Schedule 2 cl 187.411, 187.511
Cases cited: Beni v Minister for Immigration and Border Protection [2018] FCAFC 228; (2018) 267 FCR 15
Rana v Minister for Immigration and Border Protection [2014] FCA 1233
SZQVV v Minister for Immigration and Citizenship [2012] FCA 871; (12) 262 FCR 575
Number of paragraphs: 30 Date of hearing: 19 December 2022 Place: Sydney Solicitor for the Applicant: The applicant appeared in-person Solicitor for the First Respondent: Mr J. Pinder (Minter Ellison) appeared in-person Solicitor for the Second Respondent: Submitting appearance, save as to costs. ORDERS
SYG 1889 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SURINDER PAL SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPELS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
19 DECEMBER 2022
BY CONSENT, THE COURT ORDERS THAT:
1.The second box on page 3 of the Application be taken to have been selected, without requiring any further document to be filed in that regard.
THE COURT FURTHER ORDERS THAT:
2.The Application be dismissed.
3.The applicant pay the first respondent’s costs fixed in the amount of $7,328.
4.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), orders 2 and 3 not be entered until the date of the publication of written reasons for judgment (revised from transcript) which for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Revised from transcript)JUDGE LAING
INTRODUCTION
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal concluded that it had no jurisdiction to determine an application for review of a decision by a delegate (Delegate) of the first respondent (Minister). By that decision, the Delegate had refused to grant the applicant a Regional Employer Nomination (Class RN) (Subclass 187) visa (Nomination Visa).
BACKGROUND
The applicant is a citizen of India. He applied for the Nomination Visa on 7 November 2016.
By letter sent by email on 3 April 2018, the applicant was invited to comment on his apparent inability to qualify for the visa in circumstances where the associated nomination had been refused. No response appears to have been provided.
On 4 May 2018, the Delegate refused the applicant’s application for a Nomination Visa. The applicant was notified of this by email sent on the same date.
On 30 May 2018, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 5 June 2018, the Tribunal wrote to the applicant inviting comment on the validity of his review application. The letter expressed that the application appeared to have been filed 5 days later than the deadline for seeking review.
The applicant responded to this email on 15 June 2018, expressing that he had been mistaken about the timeframe and that he had made an honest mistake. The applicant nonetheless sought review of the Delegate’s decision.
On 26 June 2018, the Tribunal determined that it did not have jurisdiction in the matter.
RELEVANT LAW
Section 66 of the Migration Act 1958 (Cth) (Act) relevantly provided:
Notification of decision
(1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.
(2) Notification of a decision to refuse an application for a visa must:
(a)if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa—specify that criterion; and
(b)if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa—specify that provision; and
(c)unless subsection (3) applies to the application—give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
(d)if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500—state:
(i) that the decision can be reviewed; and
(ii) the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made…
(3) This subsection applies to an application for a visa if:
(a)the visa is a visa that cannot be granted while the applicant is in the migration zone; and
(b)this Act does not provide, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa…
Section 338(2) of the Act relevantly provided:
(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 Part 5-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 to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.
Section 347 of the Act relevantly provided:
Application for review of Part 5-reviewable decisions
(1) An application for review of a Part 5-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 Part 5-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—28 days after the notification of the decision…
Regulation 4.10(1)(a) of the Migration Regulations 1994 (Cth) (Regulations) relevantly provided:
Time for lodgment of applications with Tribunal (Act, s 347)
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…
Regulation 2.16 of the Regulations relevantly provided:
Notification of decision on visa application
(1) For subsections 66(1) and 501G(3) of the Act (which deal with giving notice of decisions), this regulation sets out the way of notifying a person of a decision to grant or refuse to grant a visa…
(3) The Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act.
Section 494B of the Act relevantly provided:
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…
Transmission by fax, email or other electronic means
(5) Another method consists of the Minister transmitting the document by:
(a) fax; or
(b) email; or
(c) other electronic means;
to:
(d)the last fax number, email address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents…
Section 494C relevantly provided:
When a person is taken to have received a document from the Minister
(1)This section applies if the Minister gives a document to a person by one of the methods specified in section 494B…
Transmission by fax, email or other electronic means
(5)If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted…
TRIBUNAL’S DECISION
The Tribunal determined that it did not have jurisdiction to review the Delegate’s decision. As the reasons it gave for this were reasonably concise, it is convenient to set them out in full:
2.Pursuant to s.347(1)(b) of the Act and r.4.10 of the Migration Regulations 1994 (the Regulations) an application for review of this decision had to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements.
3.The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 4 May 2018 and dispatched by email. The Tribunal has checked the Department's records which confirm that the notification was sent to the email address provided by the applicant for correspondence. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
4.The Tribunal finds that the applicant is taken to have been notified of the decision on 4 May 2018: s.494C of the Act. Therefore the prescribed period to apply for review ended on 25 May 2018.
5.The Tribunal wrote to the applicant inviting his comments on its preliminary view that the review application was lodged out of time and therefore not valid. The applicant responded and stated that he thought he had 28 days to lodge an application for review because the Department generally gives 28 days to take action on issues. The Tribunal has considered this but notes the notification correctly advised the applicant that his application for review must be lodged within 21 calendar days.
6.As the application for review was not received by the Tribunal until 30 May 2018 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.
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the proceedings before this Court by an application filed on 6 July 2018, containing the following grounds:
jurisdictional error and lacked jurisdiction
Error in interpretation of legislation
Natural Justice
The grounds were entirely unparticularised. Without particularisation, they were incapable of demonstrating jurisdictional error.
In any event, the real question before the Court is whether the Tribunal correctly found that it lacked jurisdiction. That question is one of jurisdictional fact for determination by the Court: see SZQVV v Minister for Immigration and Citizenship [2012] FCA 871; (2012) 262 FCR 575 at [55].
Did the Tribunal lack jurisdiction?
I accept the Minister’s submission that the Tribunal lacked jurisdiction in the matter.
The Delegate’s decision was communicated to the applicant as required by s 494B(5) of the Act, namely, by “transmitting the document by… email” on 4 May 2018 to the last email address “provided to the Minister for the purpose of receiving documents”. This is apparent from the material at CB 30 and 144-145 as well as an affidavit of Julian D’Arcey Pinder dated 5 May 2022. The notification complied with s 66 of the Act.
The applicant was therefore taken to have received valid notification of the decision at the end of the date that the relevant email was transmitted i.e. on 4 May 2018: s 494C(5) of the Act.
The decision was a Part 5-reviewable decision referred to under s 338(2) of the Act. This was in circumstances where the visa was able to be granted while the applicant was in the migration zone (cl 187.411 of Schedule 2 to the Regulations). The applicant made the visa application whilst in the migration zone, as evidenced by Annexure JDP02 to the affidavit of Julian D’Arcey Pinder dated 4 November 2022. Mr Pinder’s 4 November 2022 affidavit also confirms that the decision was not made when the applicant was in immigration clearance or had been refused immigration clearance without subsequently being cleared. As the visa was not a temporary visa (see cl 187.511), the additional criteria in s 338(2)(d) were inapplicable. In any event, Mr Pinder’s 4 November 2022 affidavit confirms that they would have been met.
Pursuant to s 347(1)(b) of the Act and cl 4.10(1)(a) of the Regulations, the applicant therefore had 21 days in which to seek review of the Delegate’s decision, expiring on 25 May 2018. As the applicant did not apply for review until 30 May 2018 (CB 152), his application to the Tribunal was out of time.
At the hearing of this matter, the applicant explained that he had been mistaken about the applicable time period. He had read references online to the general position of 28 days and had thought that this applied to him. He had also required time in which to pay the application fee.
I have considerable sympathy with the applicant’s position, in circumstances where he was unrepresented. Interpretation of the legislation can be difficult. This is notwithstanding the notification of the applicable period in the notification letter that was sent by the Department.
Regardless, I accept Mr Pinder’s submission that the Tribunal had no discretion to extend the applicable time limit. This is no matter how small the delay, how compelling the circumstances, or the reasons for not applying within time: see Beni v Minister for Immigration and Border Protection [2018] FCAFC 228; (2018) 267 FCR 15 at [83] and Rana v Minister for Immigration and Border Protection [2014] FCA 1233 at [3]. Nor does this Court have any power to extend the applicable time limit on judicial review.
CONCLUSION
For these reasons, I am obliged to dismiss the application.
The Minister sought costs fixed in the amount of $7,328, which was the scale amount at the time of application. I accept that this amount is reasonable, having regard to the work performed in the matter and the applicable scale.
30
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 19 December 2022
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