Tyagi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 327
•18 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tyagi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 327
File number(s): MLG 1497 of 2017 Judgment of: JUDGE FORBES Date of judgment: 18 November 2021 Catchwords: MIGRATION – Delegate refusal to grant student temporary visa – Jurisdiction of Tribunal to review decision – Failure to lodge review application within time – no jurisdiction to review – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss.347(1)(b), 494B(5)(b), 494D
Migration Regulations 1994 (Cth), reg.4.10, 2.55, 2.16(3)Cases cited: Singh v Minister for Immigration and Border Protection [2020] FCAFC 31
Hossain v Minister of Immigration and Border Protection [2018] 264 CLR 123
Minister for Immigration and Border Protection v SZMTA [2019] 264 CLR 421Division: Division 2 General Federal Law Number of paragraphs: 34 Date of last submission/s: 18 November 2021 Date of hearing: 18 November 2021 Place: Melbourne The Applicant: In Person Solicitor for the Respondents: Mr Creedon Solicitor for the Respondents: The Australian Government Solicitor ORDERS
MLG 1497 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ABHIMANYU TYAGI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFIARS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
18 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
2.The application is dismissed.
3.The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.
4.The time for any appeal of these orders commence to run from the date of publication of the Court’s extempore reasons delivered on 18 November 2021.
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
JUDGE FORBES
INTRODUCTION
This proceeding concerns an application by Mr Abhimanyu Tyagi who seeks judicial review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”) on 7 June 2017. In that decision the Tribunal found that it did not have jurisdiction to review a decision of the Minister’s delegate to refuse to grant Mr Tyagi a Student (Temporary) (Class TU) Subclass 500 visa.
In this proceeding Mr Tyagi seeks an order that the decision of the Tribunal be quashed.
In his application for review of the Tribunal’s decision which was filed with the Court
on 12 July 2017, My Tyagi set out the following grounds in support of his application:
•that the member had made an error in judgment;
•the applicant had applied for a paper application via post, however, payment had not been deducted from his account so he applied for a further online application;
•there was difficulty in articulating the application;
•the application was not lodged on time even though the applicant had applied in time;
•if this application is not accepted the applicant says that he would be denied procedural fairness;
•the applicant requests that the Court accepts on the ground of fair justice as his whole life depends on the decision.
The application and the grounds of the application can be found at pages 1 to 6 of the court book.
The application was accompanied by an affidavit sworn by Mr Tyagi on 12 July 2017 and that affidavit deposed to the same explanation as to why the decision of the Tribunal should
be quashed.
In its response to the application filed with the Court on 1 August 2017, the Minister submitted that the Tribunal’s decision is not affected by jurisdictional error. The Minister seeks an order that the application be dismissed and that the applicant pay the Minister’s costs.
On 21 March 2018 Registrar Ryan made procedural orders including that the Minister file and serve a court book and that by no later than 28 days prior to the hearing that Mr Tyagi file and serve any amended application, any supplementary court book, and any written submissions
in support of his application. The Minister was also directed to file and serve any written submissions no later than 14 days prior to the hearing.
I record that prior to the final hearing today the Minister had filed a court book and the Minister had served an outline of submissions dated 5 November 2021. However, the applicant had not filed any amended application, additional documents or any written submissions.
BACKGROUND
My Tyagi is a citizen of India who arrived in Australia on 14 February 2014 on a temporary student visa. On 23 December 2016 the Applicant applied for a Student (Temporary) (Class TU) Subclass 500 visa and he nominated a migration agent, Prime Foreign Education Consultant Proprietary Limited, to be his representative. The Applicant also identified that migration agent and its email address as the address for service of documents in relation to his visa application. A copy of the Form 956 which confirms the appointment of the migration agent and the migration agent’s contact details is contained in the court book at pages
31 to 33.
On 28 March 2017 a delegate of the Minister refused Mr Tyagi’s visa application. The decision of the delegate records that on the basis of the information available to the delegate, including documents and information provided by the Applicant, the delegate found that the criteria
for the grant of a student visa were not met. For the purposes of these proceedings, it is not necessary for me to traverse the details of the delegates decision except to say that the delegate was not satisfied that the genuine temporary entrant criterion in cl 500.212 of Schedule 2
of the Migration Regulations 1994 (“the Regulations”) were met. The delegate concluded, after weighing up the various factors that must be taken into account when assessing the genuine temporary entrant criterion, that the delegate was not satisfied that the Applicant intends genuinely to stay temporarily in Australia.
The Applicant was notified of the delegate’s decision on 28 March 2017 by an email which was sent to the Applicant’s nominated email address. It was sent to the email address of his migration agent. The communication to the Applicant contained a covering letter to the delegate’s decision which stated under a bold heading, “Review Rights”, that the Applicant had 21 calendar days after the receipt of the letter to lodge a review with the Tribunal. The covering letter can be found at pages 60 to 62 of the court book and the delegate’s decision record is at pages 63 to 67 of the court book.
At page 68 of the court book there is a “sent items” record of emails which confirms that the delegate’s decision and the covering letter were sent to Mr Tyagi’s representative on 28 March 2017 at 3.49 pm. In its written submissions, the Minister noted that a notification letter in the same terms as that sent to Mr Tyagi was found by a Full Court of the Federal Court
in Singh v Minister for Immigration and Border Protection [2020] FCAFC 31 to be a valid notification.
The Applicant’s grounds of review do not dispute that he was validly notified of the delegate’s decision on 28 March 2017. The letter specified that the Applicant had 21 calendar days
to lodge a review to the Tribunal. Accordingly, the prescribed period was to end on 18 April 2017.
On 20 April 2017, that is two days beyond the prescribed date, the Applicant lodged an online application for review with the Tribunal. A copy of that online application can be found
at pages 70 to 71 of the court book and the Minister took me to that in submissions today.
On 22 April 2017 the Tribunal invited the Applicant to comment on the validity of his application for review, noting that the application had not been received until 20 April 2017 which was two days after the deadline. The Applicant was invited to make comments about the validity of his application in writing by 8 May 2017. There was no communication from the Applicant in response to that invitation.
On 7 June 2017 the Tribunal decided that it did not have jurisdiction to review the delegate’s decision. In its statement of reasons, which are at page 85 of the court book, the Tribunal observed that pursuant to s 347(1)(b) of the Migration Act 1958 (“the Act”) and reg 4.10 of the Regulations an application for review of a delegate’s decision had to be made within 21 days after the Applicant was notified in accordance with the statutory requirements. The member found that the Applicant had been notified of the delegate’s decision by letter on 28 March 2017. The Tribunal was satisfied that the Applicant had been notified of the decision
in accordance with the requirements of the Act. The Tribunal went on to find that in accordance with cl 2.55 of the Regulations, the Applicant was taken to have been notified of the decision and the prescribed period within which to make the review application had ended
on 18 April 2017. Accordingly, as the application had not been received until 20 April 2017, it followed that the application for review was out of time and that the Tribunal had no jurisdiction in the matter. That is the decision which Mr Tyagi seeks to be reviewed.
HEARING
The matter was listed before me today. Mr Tyagi is self-represented and Mr Creedon appeared on behalf of the Minister.
As previously mentioned, prior to today’s hearing the Minister filed a court book and written submissions. The Applicant has not filed any material save for his application and the short affidavit that I have already referred to.
At the commencement of today’s hearing and noting that Mr Tyagi is self-represented,
I explained the procedure of the Court. I explained to the Applicant that he would be given an opportunity to explain why the Tribunal decision was wrong and I told him that he would also be given an opportunity to reply to any submissions made by the Minister’s counsel. Mr Tyagi confirmed with me that he had a copy of the court book and a copy of the Minister’s written submissions.
I invited the Applicant to explain how he says the decision of the Tribunal is affected by jurisdictional error.
Mr Tyagi submitted that he had made an application by post. He said that it was on a weekend and that it may not have been received by the Tribunal on time. Mr Tyagi agreed that he had applied online. He said he was unsure about applying to the Tribunal but that his agent told him that was the best thing to do. Importantly, Mr Tyagi does not contest the evidence that the online application was made on 20 April 2017.
For its part, the Minister principally adopted and sought to rely upon its written submissions and I have read those submissions.
CONSIDERATION
Having heard from both Mr Tyagi and the Minister and taking into account the materials I have before me and the authorities to which the Minister has directed me, I have decided that the application should be dismissed.
I agree with the Minister that the only question for the Court is whether the Tribunal was correct in finding that the Applicant had applied for review of the delegate’s decision outside of the prescribed period such that the Tribunal did not then have jurisdiction.
The scheme of the legislation provides that when the Minister grants or refuses to grant a visa, the Minister must notify the applicant of the decision in the prescribed way. Pursuant
to reg 2.16(3) of the Regulations and s 494B(5)(b) of the Act, one of the methods involves transmitting the document by email. When that occurs, the person is taken to have received the document at the end of the day on which the document was transmitted. Pursuant
to s 494D, the Minister is required to give documents to a person who is the authorised recipient. In this case at the time of the delegate’s decision the authorised recipient was the Applicant’s migration agent. When communication occurs with the authorised representative, the Minister is taken to have given the document to the Applicant himself.
The scheme of the legislation also provides for a time limit, which is described as the “prescribed period”, within which an applicant can seek a review of a decision of a delegate. As the Minister has submitted in his outline, the combined operation of the various sections
of the legislative scheme – that is, ss 338, 347 and reg 4.10 – has the effect that the prescribed period commences when the applicant receives the decision and then ends 21 days later.
As I have mentioned, the Applicant’s grounds did not dispute that he was validly notified
of the decision on 28 March 2017. The decision and a covering letter were sent to his migration agent, and the covering letter clearly informed the Applicant of the 21 day time limit to seek
a review of the delegate’s decision. So, in short, the Applicant was taken to have received the decision at the end of the day on 28 March 2017, and the last day of the 21 day period was, therefore, 18 April 2017. The Applicant’s online application for review was lodged on 20 April 2017, and the Tribunal found that the application lodged was outside the 21 day prescribed review period.
Having found that fact, the Tribunal concluded that it did not have jurisdiction to deal with the application for review. In my opinion, that conclusion is undoubtedly correct and nothing said by the Applicant in these proceedings persuades me that the Tribunal’s decision or the mechanism by which it arrived at that decision is affected by any jurisdictional error.
For completeness, I briefly want to address a part of the Minister’s written submission which deals with some typographical errors in the Tribunal’s decision.
At paragraph 4 of the Tribunal’s decision, there was a reference to reg 2.55 of the Regulations and also a reference to Mr Tyagi having been notified of the delegate’s decision by mail.
The Minister concedes that the reference to communication by mail and the reference
to reg 2.55 were incorrect. First, the reference to notification to Mr Tyagi by mail was incorrect because it should have stated that the delegate’s decision had been transmitted by email.
And, secondly, the reference to reg 2.55 was erroneous in the sense that it referred
to a cancellation of a visa, rather than a refusal of a visa.
If either of these issues had been raised by Mr Tyagi, the onus would have been on Mr Tyagi to demonstrate to the Court that those typographical errors would have had a material effect on the Tribunal’s ultimate conclusion.
Materiality is an essential element of jurisdictional error, and I refer to the High Court decisions
in Hossain v Minister of Immigration and Border Protection [2018] 264 CLR 123 at paragraphs [30] to [31] and Minister for Immigration and Border Protection v SZMTA [2019] 264 CLR 421. The Minister submits, and I accept, that the typographical errors, ultimately, did not have any material effect on the outcome of the review and, in the circumstances, there was no practical unfairness to the Applicant.
CONCLUSION
For the reasons set out above, I will order that the application be dismissed. I will also order that the Applicant pay the Minister’s costs, fixed in the sum of $5,000. The time for any appeal of these orders should commence to run from the date of publication of the Court’s extempore reasons delivered on 18 November 2021.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 17 January 2022
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