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

[2022] FedCFamC2G 190

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 190

File number(s):

MLG 1833 of 2018

Judgment of:

JUDGE FORBES

Date of judgment:

21 March 2022 

Catchwords:

MIGRATION – ex tempore decision – delegate refused to grant the applicant a Student (Temporary) (Class TU) Subclass 500 visa - application for judicial review of AAT decision –– application filed outside prescribed time – no proper application before the Tribunal – no jurisdiction to consider application – no discretion to extend time for filing application – no jurisdictional error – application for review dismissed with costs

Legislation:

Migration Act 1958 (Cth) s 347, 494B

Migration Regulations 1994 (Cth) reg 4.10

Administrative Appeals Tribunal Act 1975 (Cth) s 24Z

Cases cited:

Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15

Singh v Minister for Immigration and Border Protection [2020] FCAFC 31

Division:

Division 2 General Federal Law

Number of paragraphs:

26

Date of hearing:

7 March 2022

Place:

Melbourne

Applicant:

In person

Solicitor for the First Respondent:

Mr Sypott

Solicitor for the First Respondent:

The Australian Government Solicitor

ORDERS

MLG 1833 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ARSHDEEP SINGH
Applicant

AND:

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

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

ORDER MADE BY:	JUDGE FORBES
DATE OF ORDER:	7 MARCH 2022

THE COURT ORDERS THAT:

1.The Applicant’s Application for Judicial Review filed on 25 June 2018 is dismissed.

2.The Applicant pay the First Respondent’s costs fixed in the sum of $5,100.

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
EX TEMPORE

JUDGE FORBES
INTRODUCTION

1. The applicant in this case is Mr Arshdeep Singh (Mr Singh).  Mr Singh is an Indian citizen who first arrived in Australia on 16 January 2014 as an international student.  Mr Singh seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) which was made on 14 June 2018.

2. In its decision, the Tribunal affirmed a decision made by a delegate of the Minister not to grant

   
   

   Mr Singh a Student Temporary Class TU visa (“the visa”).  In the proceedings before me today, Mr Singh represented himself and had access to a Punjab interpreter.  The Minister opposes the application and was represented by Mr Sypott of the Australian Government Solicitor.  I can indicate that I have read the relevant background documents in the court book and I have read the submissions filed on behalf of the Minister.  I have also taken into account the oral submissions that each of the parties have made before me today. 

3. For the reasons that I explain below, I have decided that Mr Singh’s application for review should be dismissed. 

4. In coming to the conclusion that the application be dismissed, I want to emphasise that I have not conducted a review of the merit of Mr Singh’s application for a student visa, nor the correctness of the decision of the delegate to reject that application.  My task in conducting judicial review of the Tribunal’s decision is to determine whether the Tribunal acted according to law when it made its decision.  I find that it did so and that the Tribunal’s decision was not affected by jurisdictional error. 

   BACKGROUND

5. On 12 March 2018, Mr Singh applied for a visa.  A migration agent assisted with that application and in support of that application Mr Singh provided the delegate with a large range of documents.  Relevant legislation sets out the criteria that a visa applicant must meet to satisfy the Minister that he has access to sufficient funds to meet the costs of living and studying in Australia.  What the delegate found was that the applicant did not meet those financial capacity criteria for his proposed stay and the visa application was refused on that basis. 

6. On 17 April 2018, the delegate sent the applicant’s migration agent a notification letter informing Mr Singh that the visa had been refused and an accompanying decision record which set out the reasons for the refusal.  According to the delegate, the criteria for the grant of the student visa had not been met.  The correspondence which conveyed the delegate’s decision is of some importance, and it can be found at pages 59 to 66 of the court book. That correspondence identified the decision to refuse the application, it gave reasons and it identified the right for the applicant to have the decision reviewed by the Tribunal. The correspondence stated clearly that Mr Singh could apply for a review and that any application for a review had to be made within 21 days after the letter was received and it set out how the application for review was to be made.

7. On 21 May 2018, Mr Singh lodged an application for review of the delegate’s decision. He did that with the assistance of his migration agent. 

8. On 24 May 2018, the Tribunal invited Mr Singh to comment on the validity of his application, given that it appeared to have fallen outside of the 21-day time limit. The Tribunal noted that the delegate’s decision had been delivered on 17 April 2018, and, therefore, the last day for lodging a review was 8 May 2018.  Instead, the application had been made on 21 May 2018, nearly two weeks after that last day. Mr Singh was informed that if a member of the Tribunal decides that he had not made a valid application, he would then be provided with written decisions.

9. On 31 May 2018, the applicant’s migration agent provided the Tribunal with a letter which stated that the applicant had been suffering from a medical condition which had affected his ability to remember dates and scenarios. The migration agent contended that that medical condition played a role in Mr Singh missing the deadline.  Mr Singh urged the Tribunal to accept the application for review, despite it being out of time, and he also included a medical certificate dated 21 May 2018 which expressed the opinion that Mr Singh’s anxiety and depressive symptoms may have affected his memory. 

10. On 14 June 2018, the Tribunal notified the applicant that it has no jurisdiction to determine the application. In its reasons, the Tribunal stated that pursuant to section 347(1)(b) of the Migration Act 1958 (Cth) (“the Act”) and regulation 4.10 of the Migration Regulations 1994 (Cth) (“the Regulations”), an application for review of a delegate’s decision had to be made within 21 days in accordance with the statutory requirements. The Tribunal member concluded that because Mr Singh had been notified of the delegate’s decision on 17 April 2018, it was satisfied that the prescribed time lapsed on 8 May 2018 and that an application for review received on 21 May 2018 was out of time and the Tribunal had no jurisdiction to consider it.

11. That is the decision that Mr Singh seeks to be reviewed.

    APPLICATION FOR REVIEW

12. On 25 June 2018, Mr Singh applied for a review of the Tribunal’s decision. The application  identifies five grounds of review as follows:

    1.I have made an application for student visa extension to DIBP and application was refused and I was advised by my agent that I had to apply for review of this matter. Application was lodged late with AAT and AAT refused to accept my application. AAT has claimed that they do not have Jurisdiction on this matter and refused to accept my application.

    2.Reason for lodging application late was due to the fact that I am suffering from a medical condition which has affected my ability to remember dates to lodge AAT application within prescribed time frame. I have provided supporting documents from my doctor to support my claim.

    3.AAT has refused to accept any of my claim and refused to consider supporting documents. AAT has treated me unfairly as reason for lodging late application was beyond my control and this unfair treatment is a Jurisdictional error.

    4.AAT has treated me unfairly when they refused to accept my application even though invitation to comment was dealt properly and detailed information was provided. Unfair treatment from AAT has resulted in my application not being accepted by AAT. AAT further ignored and refused to accept my claim during the course of invitation to comment submission. AAT has made these error in law and these Jurisdictional error I like to challenge at FCC.

    5.I like to request to FCC to accept my application and review this matter so that I could get new orders made and replace old orders made by AAT.

13. The Minister has contended and I agree that the first ground of appeal is really background narrative and it is not a ground of appeal at all.  Similarly, the final ground of appeal, ground 5, also expresses a general plea for assistance and for the orders to be set aside.  That in itself is not a ground of judicial review, but I understand the point that Mr Singh is seeking to make.

14. It is really grounds 2 to 4 which matter here and in those grounds, in broad terms, what Mr Singh contends is that by failing to consider his supporting documents, which attested to why his application for review was lodged outside the prescribed time, and by failing to properly consider his medical condition, the Tribunal had made an error of law. 

15. Subsequent to the filing of his application for review, orders were made for the preparation of this case for hearing.  The Minister was directed to file a court book and written submissions and the applicant was invited to file any amended application, any supplementary court book and any written submissions.  I would simply indicate for the record that the Minister filed a court book on 30 October 2019 and submissions on 21 February 2022. The only material I have before me in relation to the application is Mr Singh’s initiating application and his affidavit, and, of course, the materials in the court book. 

16. At the hearing before me today, Mr Singh was self-represented and his submissions, in essence, were as follows.

17. Mr Singh concedes that the application for review was outside the 21-day time limit prescribed by the Act and the Regulations. However, he says that at the time he was very stressed by the fact that his application for a student visa had been rejected. He said he felt misguided about the financial requirements by his agent. Mr Singh says he had health concerns which caused him to miss the deadline. He said that the Tribunal did not accept his application, but that it could have extended the time for him to do so. Mr Singh also expressed to me that today was a very important day for him and he was hopeful that the Court would help him and give him an opportunity to remain in Australia and obtain the visa.

18. As I said, grounds 2, 3 and 4 of the application essentially rest on the argument that even though the application was filed out of time, Mr Singh believes he was treated unfairly by the Tribunal because it did not accept his application in circumstances where he was suffering a medical condition, and by not extending time for him to file an application. 

19. The Minister has opposed the application and said it should be dismissed, and Mr Sypott made oral submissions which elaborated on the written submissions filed with the Court. The Minister’s argument is that Tribunal had no jurisdiction to consider Mr Singh’s application out of time and it had no discretion to extend the time in which the applicant could seek judicial review.

    CONSIDERATION

20. I have carefully considered the Minister’s written and oral submissions and I have taken into account the relevant cases to which I have been directed in those submissions. I have also given consideration to Mr Singh’s oral submissions to the Court.

21. I accept the Minister’s submission that the Tribunal did not have jurisdiction.  The scheme of the Migration Act and its Regulations provides strict time limits for the exercise of certain rights, including the right to seek a merits review of the delegate’s decision. The decision of the delegate was conveyed to Mr Singh’s migration agent in accordance with section 494B(5) on 17 April 2018, and by reason of the legislative scheme, Mr Singh is deemed to have been notified of the decision on that date. As the Minister has submitted, the effect of section 347(1)(b) of the Act and regulation 4.10(1)(a) of the Regulations is that Mr Singh had 21 days from that date, namely, 17 April 2018, to file an application for review. That meant that the last day for filing was 8 May 2018.

22. I am entirely satisfied that the correspondence of 17 April 2018 met the requirements of the Act and conveyed the information it had to convey to Mr Singh. I am reinforced in that view by the decision in Singh v Minister for Immigration and Border Protection [2020] FCAFC 31 where at [11]-[12] a letter in identical terms to that sent to Mr Singh in this case met with the approval of the Full Court of the Federal Court of Australia in that case[1]. 

    [1] Singh v Minister for Immigration and Border Protection [2020] FCAFC 31

23. An application filed outside time provided by the legislative scheme simply does not engage the jurisdiction of the Tribunal.  The late filed application means that the Tribunal did not have a valid application before it.  The Tribunal was undoubtedly correct to find that it did not have jurisdiction and the decision of the Tribunal is not, in my opinion, effected with error. 

24. For the sake of completeness I should add that Mr Singh submitted, understandably I think, that the Tribunal does have a power to extend time and could have done so. In doing so he said that the power is referred to on the Tribunal’s website. 

25. However, as Mr Sypott pointed out, the discretion in the Administrative Appeals Tribunal Act1975 (Cth) (“the AAT Act”) to extend time is not available to the Tribunal in applications lodged with its Migration and Refugee Division outside the prescribed period. Section 24Z of the AAT Act expressly closes off discretion in matters such as this. In support of that proposition, Mr Sypott took me to the decision of Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15 at [83][2].

    [2] Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15

26. The Tribunal did not have a discretion to extend time, and for those reasons I must dismiss the application. I also order that the applicant pay the Ministers costs which I will fix at $5100.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Forbes.

Associate:

Dated:       21 March 2022