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

Federal Court of Australia|2020-10-06|Before: Jagot J

The appeal be dismissed.
The appellant pay the first respondent's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JAGOT J: 1 This is an appeal from a judgment of the Federal Circuit Court delivered on 11 September 2019 which dismissed an application to quash a decision of the Administrative Appeals Tribunal (Tribunal) made on 28 November 2017: Manandhar v Minister for Immigration & Anor [2019] FCCA 2742 (primary decision). The Tribunal held that it did not have jurisdiction to review a decision by a delegate of the Minister made on 10 October 2017 to refuse to grant the appellant a temporary student visa under the Migration Act 1958 (Cth) (the Act), and dismissed the appellant's application for review. 2 The appellant's notice of appeal contained four grounds of appeal, that: (1) the Tribunal (presumably, although this is not specified in the notice of appeal), fell into jurisdictional error by failing to request that the appellant provide evidence; (2) the Tribunal or primary judge or both (it is not specified in the notice of appeal) failed to properly assess the appellant's personal circumstances; (3) the primary decision was made without having any regard to the appellant's oral evidence at the hearing; and (4) the Department of Home Affairs did not provide the appellant an opportunity to furnish supporting documents to his application. 3 For the reasons that follow, these grounds do not identify a reviewable error, and the primary judge was correct to find that the Tribunal did not have jurisdiction to review the delegate's decision. Accordingly, the notice of appeal must be dismissed.

Background 4 On 22 August 2017, the appellant applied for a Student (Temporary) (Class TU) (Subclass 500) visa, in which application he appointed a migration agent to receive all written correspondence that would otherwise have been sent directly to him. At this time the appellant held a student visa which was valid until 23 August 2017 and was enrolled in a Bachelor of Accounting Degree at the Universal Business School in Sydney due to finish in January 2019. 5 On 10 October 2017, a delegate of the first respondent refused the application on the basis that he did not meet the requirement in cl 500.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations), i.e., the requirement to be enrolled in a course of study. As noted by the primary judge the appellant was compliant with cl 500.211 of Sch 2 to the Regulations at least at the time of his application (at [5]), however, that is not material to this appeal. 6 The delegate sent notice of the refusal decision by a letter dated 10 October 2017 by email to the nominated email address of the appointed migration agent. It was common ground that this constituted receipt of notice of the refusal decision. 7 A decision to refuse to grant a student visa was at the time of the appellant's application a "Part-5 reviewable decision" as defined in the Act (s 338(2)) and, accordingly, the prescribed period within which the appellant was required to lodge any application for review was 21 days after he received notice of the refusal decision (s 347(1)(b)(i) of the Act and r 4.10 of the Regulations). 8 The appellant lodged his review application with the Tribunal on 1 November 2017, 22 days after his receipt of notice of the refusal decision. In that application, the appellant appointed the same migration agent as his authorised representative who, in an email to the Tribunal dated 1 November 2017, confirmed amongst other things that the appellant had lodged his application for review one day outside the prescribed period of 21 days because the appellant was unwell, could not contact his representative, and could not organise the prescribed fee. 9 By a letter dated 8 November 2017, the Tribunal invited the appellant to comment on the validity of the application for review, and stated it had formed the preliminary view that the application for review was not lodged within the relevant time limit. On 21 November 2017, the appellant responded to the Tribunal, explaining that he had been unwell for a "few weeks" after he lodged his student visa application, had struggled to organise fees, and that by the time he had recovered, obtained medical certificates and organised fees, he had missed the deadline to submit his application for review. As is discussed further below, at this time the appellant stated he was aware that the application would be invalid but thought the Tribunal would have "some room" to consider his application on "medical grounds" given the short delay in the lodgement of his application, his medical evidence in support, and the fact that he was a genuine student. 10 In a decision dated 28 November 2017, the Tribunal found that it had no jurisdiction to review the refusal decision as the application was not made within 21 days after the appellant's receipt of notice of the refusal decision. 11 On 22 December 2019, the appellant filed an application in the Federal Circuit Court seeking judicial review of the Tribunal's decision. That application was dismissed on 11 September 2019 on the basis that the appellant failed to establish that the Tribunal's decision was affected by jurisdictional error.

consideration 12 An order of this Court made on 23 January 2020 gave the appellant the opportunity to file any submissions in support of his application, but the appellant has not done so.

Tribunal's jurisdiction to review application 13 The first respondent submitted that the appellant's grounds of appeal fail to "engage with the Tribunal's no jurisdiction decision in any meaningful way". The first respondent contended that the primary judge was correct to dismiss the appellant's application since: In circumstances where the review application was made outside the prescribed period and the Tribunal had no discretion to extend the timeframe, the Tribunal had no jurisdiction in the matter and was not entitled to consider the merits of whether the applicant met the criteria for the grant of the Student visa [Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 at [64]-[66] and [83] (McKerracher, Reeves & Thawley JJ)] … To the extent that the grounds challenge the delegate's decision, the Federal Circuit Court (as the primary judge noted) had no jurisdiction to review that decision pursuant to s 476(2)(a) of the Act … there was no scope for the Tribunal to consider the applicant's personal circumstances or seek further evidence relevant to whether he met the criteria for the grant of the visa. 14 I accept these submissions. As noted by the primary judge, "there is no provision in the Act that allows the Tribunal or a Court to override or extend the time limit set by s 347 of the Act or any jurisdiction to entertain an application that was not made within time": at [18]. This Court has held that "the time period in which an application for review must be filed is absolute. The Tribunal has no discretion to extend the time in which an application may be made": Calimoso v Minister for Immigration and Border Protection [2016] FCA 1335 at [29] and further, that in respect of the review entitlement under s 347(2), "[t]he Regulations do not provide for an extension of the 21 day time limit, even in special or exceptional circumstances": Patel v Minister for Immigration and Citizenship [2012] FCA 145 at [7]. 15 Consistently with these statements, the primary judge was correct to find that, despite any assertion by the appellant that the Tribunal had a discretion to consider matters such as the appellant's personal circumstances, it had no such discretion.

Identification of reviewable error 16 The first respondent submitted that the appellant otherwise failed to identify any reviewable error, and that the appellant's contentions were "misconceived", stating that "the task of the Federal Circuit Court was not to consider the applicant's personal circumstances but to determine whether the Tribunal's decision was affected by jurisdictional error … the Federal Circuit Court was correct to find that no such error was apparent." 17 I accept these submissions. None of the appellant's grounds of appeal identify a reviewable error, and in any case are misconceived, given that: (1) in respect of the first ground that the Tribunal erred in not requiring the appellant provide evidence - in the absence of jurisdiction there was no scope for the Tribunal to make any such request; (2) in respect of the ground that the Tribunal or primary judge or both failed to consider the appellant's personal circumstances - neither the Tribunal nor the primary judge had jurisdiction to consider these circumstances; (3) in respect of the ground that the primary decision was made without having any regard to the appellant's oral evidence at the hearing - the primary judge clearly considered and made adverse findings about this evidence, as is discussed below; and (4) in respect of the ground that the Department of Home Affairs did not provide the appellant an opportunity to furnish supporting documents to his application - the appellant was given such an opportunity but did not submit his application in time. 18 In relation to the third ground, the appellant gave oral evidence that his application had been out of time because he had been advised by his migration agent that he had 28, and not 21, days in which to file his review application. He also raised this matter for the consideration of the primary judge, who in response to this evidence said at [22]-[23]: …there was no such allegation made in his affidavit affirmed on 22 December 2017, or in the email of the migration agent to the Tribunal dated 1 November 2017 … Further, when invited to comment on the Tribunal's prima facie view that his application for merits review was too late … [in his email to the Tribunal of 21 November 2017], there was no suggestion by the [appellant] that the migration agent had misled him. Rather, the purport of the email is quite inconsistent with any such suggestion, because the [appellant] said, after having conceded that he was one day late after the 'given deadline of 21 days', that he had been unwell and that he was struggling to organise fees which had to be paid for the merits review application, and that he 'could not do anything despite the multiple reminders from my migration agent to lodge it in time'. (Emphasis in original). 19 The representative of the first respondent also made oral submissions in relation to the appellant's inconsistent statements in his email of 21 November 2017. In this respect, I further note the appellant's statement that "I had already missed my deadline of 21 days to submit my application … I was aware that it would be [an] invalid application as stated by my Migration Agent and that [the] AAT [would] have no jurisdiction, but I insisted to lodge the application". 20 Given this evidence I am not satisfied that the appellant was misled by his migration agent about the deadline for the application to the Tribunal for review of the delegate's decision.

Notification letter 21 As a further matter, the first respondent submitted that no error of the kind identified in DFQ17 v Minister for Immigration [2019] FCAFC 64 (DFQ17) or BMY18 v Minister for Home Affairs [2019] FCAFC 189 arises in the present because: (a) The delegate's notification of its refusal decision … complied with s 66(1) of the Act as it was sent to the appellant in accordance with s 494B(5) of the Act and reg 2.16(3) of the Regulations. In particular, the notification was valid as it: (i) specified the criterion that the appellant did not satisfy as required by s 66(2)(a); (ii) gave written reasons why the criterion was not satisfied in accordance with s 66(2)(c); and (iii) stated that the decision could be reviewed; the time in which the application for review could be made; who could apply for the review; and where the application for review could be made (in accordance with s 66(2)(d)(i)-(iv)). 22 In DFQ17 the cancellation under consideration by the Court was found to be "piecemeal, entirely obscure and essentially incomprehensible" in giving the information required to be given to the applicant, such that the relevant time for lodging the review application had not commenced. The primary judge found that 28. The notification letter in this case is distinguishable from that in DFQ17 and substantially in the form of the notification letter considered by Nicholas J in Ali v Minister for Home Affairs [2019] FCA 1102 in which, relevantly, at [24] - [26] and [29], his Honour stated as follows: … [25] I am bound by DFQ17 and must follow it in so far as it concerns the proper construction of s 66(2)(d) of the Act. It is authority for the proposition that s 66(2)(d)(ii) requires that the relevant information (ie. the time in which the application for review may be made) must be clearly conveyed. [26] The letter sent to the appellant on 21 April 2017 included the following (at pages 1-2): Review rights The decision can be reviewed. The Department cannot consider your visa application any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision. An application for merits review of this decision must be given to the AAT within 21 calendar days after the day on which you are taken to have received this letter. You may only seek merits review of this decision with the AAT if you are physically present in Australia at the time this application for merits review is made. This review period is prescribed in law and an application for merits review may not be accepted after that date. … 29. In my view … DFQ17 does not establish any jurisdictional error for the purposes of this case. 23 The first respondent submitted that the notification letter in this proceeding complies with s 66(2)(d) of the Act and is analogous to the notification letter considered and approved by the Full Court in Singh v Minister for Immigration and Border Protection [2020] FCAFC 31. In support of this, the first respondent in its written submissions pointed to the following elements of the notification letter: (a) On page 1, under the heading 'Review Rights', the notification letter stated that an application for merits review of the delegate's decision had to be given to the Tribunal within 21 calendar day days after the day on which the appellant was taken to have received 'this letter' … (b) On page 3, under the heading 'Receiving this letter', the notification letter stated that as 'this letter' was sent to the appellant by email, the appellant was taken to have received the letter at the end of the day it was transmitted. 24 I accept these submissions. I am satisfied that the primary judge was correct to hold that the notification letter satisfied the standard required by s 66(2)(d)(ii) of the Act, as it clearly conveyed the necessary information about when the application for review to the Tribunal had to be made. No error of the kind identified in DFQ17 arises.

conclusion 25 For the reasons given, I am satisfied that the appellant was validly notified of the delegate's decision in accordance with the statutory requirements and that, as his application was not lodged within the prescribed period, the Tribunal did not have jurisdiction to review the delegate's decision. I reiterate the primary judge's statement at [30] that "it is easy to sympathise" with the appellant, but that "in a mass immigration system there have to be cut-off dates and the granting, limiting and determining of legal rights by reference to dates is common in the Australian legal system in many different areas of the law." The primary judge was correct to uphold the Tribunal's decision that it did not have jurisdiction to review the refusal decision and the appeal must be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jagot.

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