Patel v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 Yesterday the Court heard the appellants' appeal from a judgment of the Federal Magistrates Court. At the conclusion of the submissions made by the first appellant on behalf of the appellants, the Court announced that it did not require submissions from counsel for the first respondent. It made orders dismissing the appeal with costs. What follows are the Courts reasons for making those orders. 2 The appeal was from a judgment of the Court below which dismissed the appellants' application for judicial review of a decision of the Migration Review Tribunal ("the Tribunal). The Tribunal had dismissed an application by the appellants for a merits review of a decision of a delegate of the respondent Minister to refuse to grant a Skilled (Residence) (Class VB) Visa ("the Skilled Visa"). 3 The appellants are citizens of India. The first appellant entered Australia on 18 October 2007 as a holder of a Student Visa. On 28 June 2010, the first appellant applied for the Skilled Visa. He included the second appellant, his spouse, in the application as part of his family unit. He made the application by email and elected to receive communications from the Minister's department by email. 4 On 4 August 2010, an officer of the department sent the first appellant an email with attachments. Those attachments included a letter advising the first appellant of the refusal of his Skilled Visa application and a decision record. On 29 March 2011, the first appellant applied to the Tribunal for a merits review of that decision. On 16 May 2011, the Tribunal wrote to the appellants. It invited their comment about whether it was able to consider their application given that it was filed about seven months out of time. The 16 May 2011 letter advised the appellants of the existence of the 21 day time limit in which to seek to review the delegate's decision. It noted that the period expired on 25 August 2010, some 21 days after the sending of the 4 August 2010 email from the department. 5 The Tribunal's letter gave the appellants 14 days from 23 May 2011 to reply with any submissions. In the absence of receipt of any comments, the Tribunal decided, on 10 June 2011, that it did not have a valid application for review before it. On 4 August 2011, the appellants applied to the Court below for judicial review of the 10 June 2011 decision of the Tribunal. 6 The Federal Magistrates Court held that the Tribunal had not committed a jurisdictional error by deciding that it had no valid application for review before it. The Court observed that there is no provision in the Migration Act 1958 (Cth) ("the Act") to extend the time within which an application may be made to the Tribunal for a merits review of a decision of a delegate. 7 Section 347 of the Act permits a review of a decision of a delegate to the Tribunal. Under s 338(2) of the Act a decision to refuse to grant a Skilled Visa is reviewable in and by the Tribunal. Section 347(1)(b) provides that an application for a review must be made within the prescribed period. Regulation 4.10 of the Migration Regulations 1994 (Cth) ("the Regulations") prescribes a period of 21 days to bring an application to review a decision referred to in s 338(2) of the Act where, as here, the applicant is not in immigration detention. The Regulations do not provide for an extension of the 21 day time limit, even in special or exceptional circumstances. This appears to be a deliberate choice of the framers of the regulations. An application for review of a delegate's decision is taken to be given to the Tribunal when it is received at the Tribunal's registry. The appellants' application was not received at the Tribunal's registry until 29 March 2011. 8 The first appellant, on behalf of both appellants, told the Court that the delay was his fault. He had earlier submitted before the Court below that he was not aware of the time limits. He provided no submissions in support of his appeal which identified any legal error in the judgment of the Federal Magistrates Court, or jurisdictional error in the Tribunal's reasons. The first appellant's lack of awareness of his limited rights of review is understandable but is not something that this Court is able to correct. The decision of the Tribunal was a correct one. The Court below made no appealable error in refusing to grant relief to the appellants. 9 This appeal is one of many that has come before the Court in recent times where there is no arguable basis for success. It may be worthwhile for Parliament to consider limiting appeals in migration matters from judgments of the Federal Magistrates Court, to those appellants who are first granted leave to appeal by a single judge of this Court. It may be cost efficient for such applications to be made on the papers. This would be in the best interest of efficiency and ensure that waste of scarce public resources is minimised. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.