WAGLE v Minister for Immigration

[2015] FCCA 2474

FEDERAL CIRCUIT COURT OF AUSTRALIA

WAGLE v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2474

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – application to show cause – whether applicant has raised an arguable case for the relief he seeks – no arguable case demonstrated – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)

Migration Act 1958 (Cth), ss.116, 116(1)(b), 134(1), 134(3A), 134(4), 338(3), 338(4), 347(1)(b), 347(5), 494C

Migration Regulations 1994 (Cth), rr.4.10, 4.10(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202, 8202(2)(a)

Applicant: ANUP WAGLE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2364 of 2014

Judgment of: Judge Manousaridis

Hearing date: 2 September 2015

Date of Last Submission: 24 August 2015

Delivered at: Sydney

Delivered on: 2 September 2015

REPRESENTATION

Applicant appeared by telephone.

Solicitors for the Respondents: Ms A Lucchese of Sparke Helmore

ORDERS

1. Pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $3,326.

3. The name of the second respondent be changed to the Administrative Appeals Tribunal.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2364 of 2014

ANUP WAGLE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application made by the first respondent (Minister) for an order under r.44.12(1)(a) of the Federal Circuit Court Rules2001 (Cth) that the application for review be dismissed because the application does not raise an arguable case for the relief it seeks. By that application the applicant, who is a citizen of Nepal, seeks judicial review of a decision made by the second respondent (Tribunal) that it did not have jurisdiction to consider the application the applicant made to it.

2. The application for review filed by the applicant does not contain any grounds of review. The applicant, however, in an affidavit he filed with the Court on 22 August 2014, relies on a number of matters for setting aside the Tribunal’s decision.  Like the Minister, I will treat the matters stated in that affidavit as the grounds on which the applicant relies in this Court.

3. The applicant appeared before me today by telephone.  He said that he had made a mistake about the date on which the Minister’s application had been set down.  The applicant, however, said he was content to appear by telephone, and the Minister did not oppose that occurring.  The applicant also said that the only matters on which he wished to rely were the matters set out in his affidavit to which I have already referred.  I will, therefore, begin my consideration of the application that is before me by setting out the relevant background.

4. The applicant applied for and was granted a Student (Temporary) (Class TU) Vocational Education and Training Sector (Subclass 572) visa on 5 December 2011 (visa). On 26 May 2014, the applicant was issued with a notice of intention to consider cancellation of his visa. The notice was sent by email and stated that there may be grounds for cancelling the applicant’s visa pursuant to s.116(1)(b) of the Migration Act 1958 (Cth) (Act) for breach of condition 8202 of Schedule 8 to the Migration Regulations 1994 (Regulations). 

5. Subsection 116(1)(b) of the Act states:

   Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that its holder has not complied with a condition of the visa.

6. Condition 8202(2)(a) of Schedule 8 to the Regulations requires a visa holder to be enrolled in a registered course of study. The delegate of the Minister relied on information extracted from the Provider Registration and International Student Management System which indicated that the applicant had not been enrolled in a registered course of study since 25 November 2013.

7. In that same letter, the delegate invited the applicant to comment on the “grounds for cancellation identified in this letter and to give reasons why your visa should not be cancelled” within five working days of the letter being taken to have been received. 

8. On 31 May 2014 the applicant responded by email stating he was suffering personal hardship, including being in financial difficulty and suffering from depression, but that he had enrolled in a course that day. The delegate of the Minister, however, cancelled the applicant’s visa on 4 June 2014, pursuant to s.116(1)(b)of the Act, due to the applicant’s failure to satisfy condition 8202 of Schedule 8 to the Regulations.

9. The applicant applied to the Tribunal for review of the delegate’s decision on 25 June 2014.  On 3 July 2014 the Tribunal wrote to the applicant inviting him to comment on the validity of that application within 14 days of receiving the letter which was posted and deemed to have been received seven working days after the date of the letter.  The Tribunal stated in the letter that:

   The time limit is 7 working days from the day on which you are taken to have been notified of the primary decision.  The primary decision was emailed to you on 4 June 2014 and, on the basis that 4 June 2014 was the date on which you are taken to have been notified, the last day for lodging the application for review was 16 June 2014. As the application was not received until 25 June 2014, it appears to be out of time.

10. The Tribunal received a response from the applicant on 17 July 2014.  In that response, the applicant acknowledged the application was delayed but stated he was “under great depression and stress to know about my visa cancellation and not aware about the time limits to apply to your office” and requested the Tribunal consider his “health conditions and accept my application for review.  Give me a fair chance to explain my circumstances, not to cancel my student visa as my future and career is on the stake”.

11. Three medical certificates from Ayurveda Holistic Healer’s Clinic were attached to the applicant’s letter. The first certificate stated the applicant was examined by Dr Neeraj Thakur on 8 June 2014 and that the reason for the applicant’s visit was “anxiety / poor sleep / headache / distress”. The second certificate stated that the applicant was examined by Dr Neeraj Thakur on 21 June 2014 and the reason for the applicant’s visit was “weakness / sleeplessness / headaches / low appetite / weak memory / depression” and the prognosis was “anxiety, neurosis / depression”. There was also a third certificate signed by Dr Thakur which stated that the reason for the applicant’s visit was poor and disturbed sleep and other matters and again the prognosis was generalised anxiety disorder.

12. The Tribunal referred to the relevant provisions of the Act and Regulations setting out the period within which an application for review of a decision to cancel, pursuant to s.116 of the Act, can be made. The Tribunal decided that:

    Pursuant to s.347(1)(b) of the Act and r.4.10 of the Migration Regulations 1994 an application for review of this decision had to be made within 7 working days after the applicant was notified of the decision in accordance with the statutory requirements.

13. The Tribunal was satisfied that pursuant to s.494C of the Act the applicant was taken to have been notified of the delegate’s decision to cancel the visa on 4 June 2014. The Tribunal referred to the acknowledgement made by the applicant in his response to the Tribunal’s invitation to comment that his application had been lodged after 16 June 2014. The Tribunal did not, however, refer to the medical certificates the applicant submitted with his response in its decision.

14. Ultimately, the Tribunal found the prescribed period within which the review application could have been made ended on 16 June 2014 and that because the application for review was not received by the Tribunal until 25 June 2014 the Tribunal had no jurisdiction in the matter. 

15. Before I consider the matters stated in the applicant’s affidavit, I should first consider whether there is any arguable case that the Tribunal was incorrect in finding it had no jurisdiction to deal with the applicant’s application for review of the delegate’s decision to cancel his visa. The starting point is s.347(1)(b) of the Act which at the relevant time provided as follows:

    “An application for review of an MRT‑reviewable decision must:

    (b) be given to the Tribunal within the prescribed period, being a period ending not later than:

    (i) if the MRT‑reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—28 days after the notification of the decision; or

    (ii) if the MRT‑reviewable decision is covered by subsection 338(5), (6), (7) or (8)—70 days after the notification of the decision; or

    (iii) if the MRT‑reviewable decision is covered by subsection 338(9)—the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision…”

16. Subsection 338(3) of the Act defines as an “MRT reviewable decision” a decision to cancel a visa held by a non-citizen who is in the migration zone other than decisions to cancel such visas that are covered by s.338(4) of the Act, or decisions to cancel that are made at the time the non-citizen is in immigration clearance, or decisions made under s.134(1), (3A) or (4) or s.501 of the Act.

17. The applicant’s visa which the delegate cancelled is a visa that is covered by s.338(3) of the Act. Under s.347(1)(b) of the Act, an application for review to the Tribunal of a decision to cancel a visa that is covered be s.338(3) must be made within the prescribed period, such period not to exceed 28 days after the notification of the decision.

18. Subsection 347(5) of the Act provides that regulations made for the purposes of s.347(1)(b) may specify different periods in relation to different classes of MRT reviewable decisions. Regulations have been made prescribing the period for making an application for review to the Tribunal of a decision to cancel a visa that is covered by s.338(3) of the Act. That period is prescribed by r.4.10 of the Regulations and is the period that “starts when the applicant receives notice of the decision and ends at the end of seven working days after the day on which the notice is received”.

19. There is no arguable case, therefore, that the applicant in this case had more than seven working days after he received notice of the delegate’s decision to cancel his visa to apply to the Tribunal for review of the delegate’s decision.  There is also no arguable case that the applicant applied to the Tribunal for review of the delegate’s decision to cancel his visa within seven working days after the applicant received notice of the delegate’s decision to cancel the applicant’s visa.  It follows, therefore, that there is no arguable case that the Tribunal was incorrect in concluding it did not have jurisdiction to consider the applicant’s application for review of the delegate’s decision to cancel his visa.

20. I now turn to the grounds on which the applicant relies which, as I have already stated, is to be found in the applicant’s affidavit filed on 22 August 2014.  In that affidavit, the applicant states:

    “On July 03, 2014, I was invited to comment on the validity of my application for review.  I replied to the tribunal officer within the given time frame and explained the circumstances related to delay in my application. But the tribunal officer has not given due consideration to my circumstances.  I feel the tribunal officer has not given me a fair chance to review my application, so I believe MRT made an unfair decision on my application for review.”

21. This ground does not raise any arguable case of any jurisdictional error by the Tribunal. It assumes the Tribunal was obliged to consider the matters the applicant provided to the Tribunal. No doubt the Tribunal would have been obliged to consider that material if the Tribunal had jurisdiction to consider the applicant’s application for review. As I have already said, however, the Tribunal did not have jurisdiction to deal with the application for review because the applicant made that application more than seven working days after the applicant received notice of the delegate’s decision to cancel the applicant’s visa. The Tribunal does not have power to extend the time prescribed by r.4.10(1)(b) of the Regulations by which an application to review a decision cancelling a visa may be made.

22. For these reasons the application for review filed by the applicant does not disclose an arguable case for the relief it seeks.  I propose, therefore, to order that the application be dismissed and that the applicant pay the Minister’s costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  9 September 2015