SINGLA v Minister for Immigration and Anor (No.3)
[2020] FCCA 1971
•22 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGLA v MINISTER FOR IMMIGRATION & ANOR (No.3) | [2020] FCCA 1971 |
| Catchwords: MIGRATION – Application for Student Visa – failure to satisfy enrolment requirements – application for review to Administrative Appeals Tribunal lodged out of time – no jurisdiction on the part of the Tribunal to entertain application for review of visa refusal decision – application for review dismissed. |
| Legislation: Migration Regulations 1994 (Cth), Sch. 2, cl.500.211. |
| Cases cited: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760. DUN16 v Minister for Immigration & Anor and DUO16 v Minister for Immigration & Anor [2019] FCCA 2951. AID19 v Minister for Immigration & Anor [2020] FCCA 1002. |
| Applicant: | ABHINAV SINGLA |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 340 of 2019 |
| Judgment of: | Judge Egan |
| Hearing date: | 20 July 2020 |
| Date of Last Submission: | 20 July 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 22 July 2020 |
REPRESENTATION
| Applicant: | In-person |
| Solicitors for the First Respondent: | Ms Reid of Clayton Utz |
| Second Respondent: | Submitting appearance save as to costs |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.’
The further amended application for review filed on 19 June 2020 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 340 of 2019
| ABHINAV SINGLA |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a 19 year old citizen of the Republic of India who, on 15 March 2018, lodged an application for a Student (Temporary) (Class TU) Visa.
On 19 November 2018, an officer of the Department of Home Affairs sent a letter to the applicant’s agent (his mother) advising that the application for the visa had been refused on the basis that the application did not satisfy the provisions of the Migration Regulations 1994 (Cth) (‘the Regulations’). An accompanying decision record confirmed that cl. 500.211 of Schedule 2 to the Regulations had not been satisfied, in that the applicant was not relevantly enrolled in a qualifying course of study. The confirmations of enrolment (CoE’s) which had been issued to the applicant had either expired or been cancelled. [1]
[1] Court Book (CB) p. 84 – 85.
On 11 December 2018, the applicant lodged an application for review by the Administrative Appeals Tribunal (‘the Tribunal’) of the decision to refuse his visa application.
By a letter dated 8 January 2019, the Tribunal invited the applicant to comment on the validity of his application for review. It was asserted by the Tribunal that the application for review lodged by him was not a valid application because it had not been lodged within the relevant twenty-one (21) day time limit from the date of notification of the primary decision to refuse the visa. It was asserted by the Tribunal that such notification had been given by email to the applicant on 19 November 2018 and that, therefore, the last day for lodgement of an application for review was 10 December 2018. [2]
[2] CB p. 28.
After the applicant, through his agent, had been granted several extensions of time to respond to the 8 January 2019 letter, the agent wrote to the Tribunal on 15 February 2019 advising that it was her mistake that the application for review had not been lodged within time.
On 1 March 2019, the Tribunal decided that because the application for review of the visa refusal decision had been lodged out of time, the Tribunal lacked jurisdiction to deal with the application for review. The applicant was advised accordingly.
On 5 April 2019, the applicant filed an originating application for review of the decision of the Tribunal. An amended application for review was filed on 21 February 2020. A further amended application for review was filed on 19 June 2020. Notwithstanding orders of this Court made on 29 January 2020 and on 6 May 2020, which orders respectively required the filing by the applicant of an amended application for review which included detailed particulars of the ground or grounds of review sought to be relied upon by the applicant at the hearing of the application for review, the applicant has failed to do so. The grounds for review as set out in the further amended application for review filed on 19 June 2020 constituted a historical account of the applicant’s past education, and otherwise was un-particularised. The grounds were as follows:
“Grounds of Application
1. I got refusal because I was changing my college on that time. College study was not good. I dropped College and the College cancelled COE. I don’t have Confirmation of Enrolment on that time. I requested visa officer to provide new COE. Because I was in process of admission in Southbank TAFE without giving time I was refused for visa.
2. We lodged AAT Application. Unfortunately it was 24 hours late. So application was considered out of time application. We didn’t get any decision there.
3. I finished my schooling for three years in Cavendish Road State High School. At the time of visa extension I refused. I paid huge fees to Education Department.”
The question of the lack of particularity of grounds for review was dealt with in WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] by Gilmour J where His Honour said:
“[35]. Ground two is, I agree, an unparticularised assertion of jurisdictional error and is vague and meaningless. It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is. Failure to particularise a ground of review is sufficient basis for it to be dismissed: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] and upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969”
In the recent decision of FEY17 v Minister for Home Affairs [2020] FCA 1014 at [90], Greenwood J approved of the decision in WZAVW and said:
“[90] The appellant has not particularised which integer(s) of his claim(s) or which part(s) of his oral or written evidence were not considered by the IAA. The failure to particularise a ground of review is itself a sufficient basis to dismiss that ground: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760, [35] per Gilmour J, citing WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] as upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969. As set out in these reasons, the IAA had regard to the arguments contained in the appellant’s further submissions, and conducted a detailed analysis of the appellant’s claims and evidence: see [27] – [41] in these reasons. Absent any indication as to which particular integer(s) of the appellant’s claim(s) or part(s) of his evidence were not considered, the basis for this argument is unclear and, accordingly, it must fail.”
It was submitted on behalf of the first respondent that the lack of particularity displayed in the Grounds for review as set out in the further amended application for review disadvantaged the Minister, in that the Minister was unable to properly and fairly defend the application. The Court accepts such submission. The Court was also unable to fairly or properly adjudicate upon the application in such circumstances. [3] That lack of particularity alone was a sufficient basis for the dismissal of the further amended application for review.
[3] DUN16 v Minister for Immigration & Anor and DUO16 v Minister for Immigration & Anor
Another basis for dismissal of the further amended application for review was the lack of merit of any submission that the Tribunal had erred in dismissing the application for review of the visa refusal on the ground that such application had been lodged out of time.
It has been held that an application made out of time is not an application properly made. In Singh v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 557 Wilcox J at [8] said as follows:
“[8] Mr Ramrakha says the fact that the application for review was lodged one day late is a technicality; accordingly, it is not binding on the Tribunal and the Tribunal ought to act in accordance with substantial justice and the merits of the case by proceeding to a review on the merits. This submission must be rejected. Section 420 is concerned with the manner of exercise of the Tribunal's powers. It is not concerned with the circumstances in which the Tribunal has jurisdiction. If an applicant fails to enliven the Tribunal's jurisdiction, by failing to lodge an application in the approved form, within the prescribed time or accompanied by the prescribed fee, the Tribunal has no power to carry out a review. Consequently, the provisions dealing with the manner of exercise of its review powers do not arise.”
It follows that the Tribunal was correct in holding that it lacked jurisdiction to entertain the application for review of the visa refusal.
The decision could not be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The applicant has failed to establish jurisdictional error on the part of the Tribunal. The application for review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 22 July 2020
[2019] FCCA 2951; AID19 v Minister for Immigration & Anor [2020] FCCA 1002.
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