Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Case •

[2022] FedCFamC2G 341

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 341

File number(s): MLG 2434 of 2017
Judgment of: DEPUTY CHIEF JUDGE MERCURI
Date of judgment: 12 May 2022
Catchwords: MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal –  Student (Temporary) (Class TU) Student Dependant (subclass 500) visa – where the review application was made to the Tribunal outside of the 21-day time limit – relevance of reason for and circumstances of delay – no jurisdictional error established – application dismissed with costs.
Legislation:

Migration Act 1958 (Cth), ss 347, 494C

Migration Regulations 1994, reg 4.10
Cases cited: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46
Division: Division 2 General Federal Law
Number of paragraphs: 24
Date of last submission/s: 3 November 2021
Date of hearing: 3 November 2021
Place: Melbourne
Solicitors for the Applicant: The Applicant appeared in person
Solicitors for the Respondent: Mr Kovacs of Clayton Utz

ORDERS

MLG 2434 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

JAGDEEP SINGH
Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

ORDER MADE BY:

DEPUTY CHIEF JUDGE MERCURI

DATE OF ORDER:

12 MAY 2022

THE COURT ORDERS THAT:

1.The name of the first respondent be changed to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

2.The application for review filed on 13 November 2017 be dismissed.

3.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.

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).

REASONS FOR JUDGMENT

DEPUTY CHIEF JUDGE MERCURI:

INTRODUCTION

  1. This is an application for judicial review of a decision by the Administrative Appeals Tribunal (‘the Tribunal’) dated 4 November 2017.  In effect, by its decision, the Tribunal found that it lacked jurisdiction because the application for review made to it by the applicant from a decision of a delegate of the then Minister for Immigration and Border Protection (‘the Minister’) was made outside the 21-day statutory time limit.

    BACKGROUND

  2. On 11 July 2014, the applicant, who is a citizen of India, was granted an initial Student (Class TU subclass 573) visa (‘subclass 573 visa’) which was valid until 21 March 2017.[1]  The applicant arrived in Australia on 23 July 2014.  The subclass 573 visa was granted on the basis that the applicant intended to study a Bachelor of Information at Federation University and was processed and approved under the streamlined visa processing arrangements.

    [1] Court book at page 88.

    Subclass 500 visa application of 20 March 2017

  3. On 20 March 2017, the applicant applied for a Student (Temporary) (Class TU) Student Dependant (subclass 500) visa (‘subclass 500 visa’).[2]

    [2] Court book at page 88.

  4. In support of this application, the applicant included an enrolment to undertake a Bachelor of Information Technology and Systems at the Victorian Institute of Technology.  That course was due to conclude on 14 July 2018.[3]

    [3] Court book at pages 1 to 15 and 88.

    Refusal of subclass 500 visa application on 12 September 2017

  5. On 12 September 2017, a delegate of the first respondent refused the applicant’s subclass 500 visa application.[4]  In essence, the delegate found that the applicant was not a genuine applicant for entry and stay as a student.[5]

    [4] Court book at pages 86 to 93.

    [5] Court book at page 92.

    Application to the Tribunal on 4 October 2017

  6. On 4 October 2017, the applicant lodged a review application with the Tribunal.[6]

    [6] Court book at pages 94 to 95.

  7. On 9 October 2017, the Tribunal wrote to the applicant by email querying whether the application made on 4 October 2017 was a valid application as it had not been filed within the relevant time limit.  The applicant was advised that:

    ·for a valid application to have been made, it needed to have been lodged within 21 days;

    ·the primary decision was emailed to the applicant on 12 September 2017;

    ·consequently, the last day for lodging a review was 3 October 2017; and

    ·as the application was filed on 4 October 2017, it would appear to have been filed out of date.[7]

    [7] Court book at pages 111 to 112.

  8. The applicant was invited to comment on the validity of the application and was given until 23 October 2017 to provide any written comments.  By email dated 13 October 2017, the applicant wrote to the Tribunal and explained that:

    ·he had miscalculated the 21-day time frame;

    ·he had experienced difficulty in obtaining the filing fee of $1700; and

    ·he was a ‘sincere student and in the first place should not have been refused as (he had) been continuously studying my Bachelors since (he) first arrived in Australia’.[8]

    [8] Court book at page 148.

    Tribunal decision on 4 November 2017

  9. On 4 November 2017, the Tribunal found that it did not have jurisdiction to consider the applicant’s review application as it had not been lodged within the statutory time limit.  The Tribunal’s decision record is found at pages 156 to 157 of the Court Book.

  10. Relevantly, at paragraph [3] of its decision record, the Tribunal refers to the statutory provisions which set the time frame within which a review application is to be lodged.[9]

    [9] Migration Act 1958 (Cth) s 347(1)(b); Migration Regulations 1994 reg 4.10.

  11. At paragraph [6], the Tribunal found that pursuant to section 494C of the Migration Act 1958 (Cth) (‘the Act’), the applicant was taken to have received the delegate’s decision on 12 September 2017 and therefore a review application had to have been made on or before 3 October 2017. As the application was filed the following day, it was not made in accordance with the legislation and therefore the Tribunal had no jurisdiction to hear the matter.

    Judicial review application filed on 13 November 2017

  12. The applicant filed an application for judicial review on 13 November 2017, in which he raises four grounds of review. 

  13. Notwithstanding orders made by Registrar Allaway on 25 July 2018, providing the applicant with leave to file and serve any amended application with proper particulars and written submissions, no such documents were filed by the applicant in this matter.

    Hearing on 3 November 2021

  14. At the hearing before me, the applicant appeared on his own behalf and was assisted by an interpreter in the Punjabi and English languages.

  15. When invited to explain the basis of his application, the applicant, not surprisingly, given that he was representing himself, did not specifically address the grounds of review in his application but rather maintained that he was a genuine student and that he was a genuine temporary entrant.  I understood this to be a reference to the delegate’s finding that they were not satisfied that the applicant was a genuine applicant for entry and stay as a student.

  16. In response to the submissions made for the first respondent, namely that the only issue before this court was whether the Tribunal had made a jurisdictional error in not accepting that it had jurisdiction in circumstances where the application was filed after the expiry of the 21-day time limit, the applicant made the following concessions and submissions:

    ·he conceded that the application was filed on the 22nd day;

    ·he referred to the reasons given explaining why the application was filed one day late; and

    ·he tried to submit it within the 21-day time frame but was unable to do so.

    GROUNDS OF REVIEW

  17. As stated, the applicant raised four grounds of review, which are as follows:

    1.The tribunal and immigration department did not apply procedural fairness to genuine intention and personal circumstances.

    2.I have been a regular student and have completed most of my unit of studies.  Unintentionally my COE was cancelled by the college and I have been regarded as a non-genuine student.

    3.Tribunal did not consider my genuine reasons and my intention behind being late for the submission for application in the prescribed time.  I am a genuine student and my career courses options and genuine reasons to complete my course have not been considered by AAT and Department of Immigration and Border Protection.

    4.        The Tribunal committed jurisdictional error while accepting my case before it.

    Grounds 1 and 2

  18. In circumstances where the Tribunal’s decision was that it lacked jurisdiction to deal with the application because it was filed out of time, grounds 1 and 2 do not take issue with that decision.  They do not identify any error in that decision and therefore do not give rise to any jurisdictional error by the Tribunal.

    Ground 3

  19. Ground 3 seeks to challenge the finding made by the Tribunal that it lacked jurisdiction.  In essence, it seeks to argue that there was some unfairness or unreasonableness in the Tribunal’s finding that it lacked jurisdiction to deal with the matter.

  20. It is clear from paragraph [5] of the Tribunal’s decision record that the Tribunal was aware of the explanations proffered by the applicant as to the reason for the lateness of his application.  Ultimately, however, the Tribunal does not have a discretion to extend the prescribed statutory time frames or inquire into the circumstances as to why the time limit was not complied with.[10]

    [10] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46 per Charlesworth and Jackson JJ at [78].

  21. The applicant does not take issue with the fact that he was notified of the delegate’s decision on 12 September 2017.  But in any event, I note that the Department of Immigration and Border Protection notified the applicant of the delegate’s decision by letter dated 12 September 2017, which was sent to the applicant’s last known email address for service.

    Ground 4

  22. As to ground 4, the mere assertion of jurisdictional error, without particulars, cannot be made out.  Moreover, for the reasons discussed above, no jurisdictional error is apparent on the face of the Tribunal’s decision.

    CONCLUSION

  23. For each of these reasons, the applicant’s application is dismissed with costs.

  24. The first respondent also seeks an order for the name of the first respondent to be amended to reflect its current name.  No objection was taken to that order and an order in the terms sought is also made.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri.

Deputy Associate:

Dated:       12 May 2022


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