Sirajuddin v Minister for Immigration
[2020] FCCA 703
•17 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SIRAJUDDIN v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 703 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Student (Temporary) (Class TU) visa – where the applicant’s application to the Tribunal was out of time – whether the Tribunal was negligent – no jurisdictional error made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.347, 494B, 494C |
| Cases cited: Awon v Minister for Immigration and Border Protection [2015] FCA 846 |
| Applicant: | MOHAMMED SIRAJUDDIN |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3470 of 2017 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 17 March 2020 |
| Date of Last Submission: | 17 March 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 17 March 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr Swan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the first respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application is dismissed.
The applicant to pay the first respondent’s costs fixed in the amount of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 3470 of 2017
| MOHAMMED SIRAJUDDIN |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR EX TEMPORE JUDGMENT
(Revised from Transcript)
Introduction
The applicant is a citizen of India. On 7 June 2017, the applicant applied for a Student (Temporary) (Class TU) visa. On 26 July 2017, a delegate of the Minister for Immigration (“the delegate”) refused to grant the application. The delegate was not satisfied that cl 500.214(3) of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) was met, as the applicant had not provided evidence in his visa application of his financial capacity to fund his time in Australia.
On 21 September 2017, the applicant sought review of the delegate’s decision at the Administrative Appeals Tribunal (“the Tribunal”). On 26 September 2017, the Tribunal wrote to the applicant, seeking comment on the validity of his review application. A response was received on 16 October 2017. On 19 October 2017, the Tribunal determined it did not have jurisdiction to review the delegate’s decision.
By reason of s.347(1)(b) of the Migration Act 1958 (Cth) (“the Act”) and r.4.10 of the Regulations, any application for review by the Tribunal had to be made within 21 days after the applicant was notified of the delegate’s decision. The Tribunal was satisfied the applicant had been notified in accordance with the statutory requirements on 26 July 2017.
Accordingly, the applicant had until 16 August 2017 to lodge his application for review, but he did not lodge his application until 21 September 2017.
Accordingly, the application was out of time and the Tribunal had no jurisdiction to review the decision. The applicant now seeks judicial review of the Tribunal’s decision.
The Administrative Appeals Tribunal’s Decision
The Tribunal decision is set out on pages 106 to 107 of the Court book. It records the matters set out above.
At paragraph 4 of its decision, the Tribunal notes that the decision to refuse the visa by the delegate was contained within a letter that was emailed to the applicant, at his last nominated email address on 26 July 2017. That letter contained clear advice that the applicant was deemed to have received the letter on the date it was emailed and had a 21 day time limit to lodge any application for review.
The Tribunal was satisfied that the applicant was lawfully notified of the decision in accordance with relevant statutory requirements. The Tribunal found that the prescribed period within which any review application could be made, expired on 16 August 2017.
Accordingly, the Tribunal had no jurisdiction to consider the application.
Grounds of Appeal
Three grounds of appeal were relied upon by the applicant in his application filed on 13 November 2017. They are as follows verbatim:
(1) Tribunal did not consider my circumstances.
(2) I have reasons for relief to complete my studies here.
(3) Due to someone else negligence, I am into this matter due to
which I am not able to complete my studies here.
The Applicant’s Submissions
The applicant appeared before the Court unrepresented. The applicant was assisted by an interpreter. At the commencement of the hearing, the Court confirmed that the applicant had received a copy of the Court book and that the first respondent’s legal submissions had been interpreted to him before the Court commenced. The Court explained to the applicant that it could not undertake a merits review and explained it could only overturn the decision, if the Court was satisfied there was jurisdictional error or legal error in the Tribunal’s decision.
The Court offered the applicant two options in relation to the delivery of the decision. The first being written reasons to be delivered at an appropriate point in the future, or, that an ex tempore or oral decision could be delivered today and if the applicant so wished, he could apply for written reasons from the Court. At the end of the submissions, the applicant indicated that he would prefer to have an oral or ex tempore decision delivered today. Despite Court orders, no written submissions were filed in support of the applicant’s case.
The applicant told the Court that he had been let down by his migration agent, who had created the email address that had been used for the application. The applicant said that he was not told of the refusal of his visa, until after the appeal period had, in fact, expired. The applicant said he had reported his migration agent to the authorities. The applicant suggested the person involved was, in fact, not even a migration agent. In those circumstances the applicant felt he had been badly served and asked the Court for some lenience.
The First Respondent’s Submissions
In relation to ground 1, Counsel for the first respondent submitted that it misses the point. The Tribunal was unable to consider the applicant’s circumstances because it found it had no jurisdiction to do so because the application for review to the Tribunal, was lodged out of time.
Counsel for the first respondent submits that in Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 at [83], the Full Court found the Tribunal did not have the power to extend the time in which a review applicant could seek a review by the Tribunal. Ground 1 discloses no jurisdictional error.
Ground 2 states:
I have reasons for relief to complete my studies here.
This is not a ground of appeal and, if anything, goes to the merits of the matter. The applicant was advised that the Court cannot undertake merits review.
Ground 3 states that:
Due to someone else’s negligence, I am into this matter due to which I am not able to complete my studies here.
What precisely this alleged negligence is, has not been particularised, however, negligence cannot lead to jurisdictional error by the Tribunal. Counsel for the first respondent submits that in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [53] (“SZFDE”), the High Court observed that:
…there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made.
Counsel for the first respondent submits that nothing stated by the applicant in his application before the Court alleges, let alone establishes, to the requisite standard, any fraud on him and on the Tribunal to vitiate the Tribunal’s decision.
In
hisoral submissions, Counsel for the first respondent noted that the delegate had sent the decision refusing the visa to the last known email address of the applicant. This complied with s.494B(5) of the Act. Section 494C(5) of the Act deems the applicant to have received the decision where it is sent to his last recorded email address, whether he personally received it or not. The fraud that has been alleged, has not been particularised previously and is insufficient to mean that the decision of the Tribunal has jurisdictional error (see Awon v Minister for Immigration and Border Protection [2015] FCA 846 at [37] - [40]).
Consideration
The Court is reasonably satisfied that the notification of the refusal of the visa was sent out to the applicant’s last known email address and accordingly, the applicant is deemed to have received it on the date it was sent via email. The applicant is taken to have received that notification pursuant to s.494C(5) of the Act. That letter properly set out the relevant time period by which an application for review could be lodged. The application was lodged outside the relevant 21-day time period.
Accordingly, the decision of the Tribunal that it had no jurisdiction is legally sound.
Each of the grounds of appeal lodged with this Court is misconceived. In relation to ground 1, the Tribunal was not required to and could not consider the applicant’s particular circumstances as it had no jurisdiction to do so.
Ground 2 simply goes to the merits of the matter and does not reveal jurisdictional error.
Ground 3 is also irrelevant, bearing in mind the matters raised by the applicant in his oral submissions to the Court, which the Court makes no finding on, but for the reasons set out above in SZFDE, the Court cannot take those matters into account, when considering whether or not the decision to find the application was out of time was legally correct.
Conclusion
No jurisdictional error is established.
Accordingly, the application is dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Deputy Associate:
Date: 1 April 2020
1
3
3