FEDERAL COURT OF AUSTRALIA Singh v Minister for Immigration and Border Protection [2015] FCA 971 Citation: Singh v Minister for Immigration and Border Protection [2015] FCA 971 Appeal from: Singh v Minister for Immigration & Anor [2015] FCCA 931 Parties: RAMAN DEEP SINGH v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number: VID 188 of 2015 Judge: NORTH J Date of judgment: 11 August 2015 Legislation: Migration Act 1958 (Cth), ss 98, 347(1)(b), 494B, 494C Migration Regulations 1994 (Cth), rr 2.16, 4.10 Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 844 Date of hearing: 11 August 2015 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 21 Counsel for the Applicant: The applicant appeared in person. Solicitor for the Respondents: Mr C Hibbard from Clayton Utz IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 188 of 2015 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: RAMAN DEEP SINGH Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: NORTH J DATE OF ORDER: 11 AUGUST 2015 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. Leave to appeal against the orders made by the Federal Circuit Court on 27 March 2015 is refused. 2. The applicant to pay the first respondent's costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 188 of 2015 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: RAMAN DEEP SINGH Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: NORTH J DATE: 11 AUGUST 2015 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 Before the Court is an application by Raman Deep Singh, the applicant, for leave to appeal against orders of the Federal Circuit Court made on 27 March 2015 dismissing his application for re-instatement filed on 30 January 2015 and ordering that he pay the costs of the first respondent, the Minister for Immigration and Border Protection. 2 The application arose in the following circumstances. On 13 September 2013, the applicant applied for a Student (Temporary) (Class TU) Vocational Education and Training Sector (Subclass 572) Visa. In that application, he nominated a migration agent to receive documents on his behalf at a nominated email address. On 17 September 2013, the Department of Immigration and Citizenship sent a letter to the nominated email address requesting further information from the applicant in support of his visa application. The department received no response to that letter. 3 On 13 November 2013, a delegate of the Minister refused the visa, stating, 'I am not satisfied that the applicant(s) in this case satisfy the prescribed criteria for any subclass of visa within the Student (Temporary) (Class TU). I therefore refuse to grant a Student (Temporary) (Class TU) visa to the applicant(s) listed above.' This was unsurprising as there was insufficient information provided of the kind necessary to support the application. 4 On 7 January 2014, the applicant applied to the Migration Review Tribunal for review of the delegate's decision. On 15 January 2014, the Tribunal wrote to the applicant advising that the application for review was not a valid application as it was not lodged within the relevant time limit and inviting the applicant to comment on whether a valid application was made. The applicant replied in writing, stating that he had exceptional circumstances including 'lack of knowledge, no communication with agent and poor in English.' 5 On 17 February 2014, the Tribunal decided that it had no jurisdiction to hear the application for review as the application was not made in accordance with the relevant legislation. Pursuant to s 347(1)(b) of the Migration Act 1958 (Cth) (the Act), and r 4.10 of the Migration Regulations 1994 (Cth) (the Regulations), any application for review was required to be made within 21 days after the applicant was notified of the delegate's decision. The applicant was notified of the delegate's decision on 13 November 2013, and therefore any application for review was required to be lodged by 4 December 2013. In fact, the applicant did not lodge an application for review until 7 January 2014. 6 On 26 February 2014, the applicant applied to the Federal Circuit Court for review of the Tribunal decision. The grounds of that application were as follows: 1. S.477, Judicial review can be lodged in 35 days after tribunal review has been finalised. 2. I am not happy with tribunal decision, applying for judicial review for legitimate decision 3. I do have exceptional circumstances beyond the application lodgement previously 4. My agent hasn't sent me the decision, how come I am directly victim as Tribunal has made a decision against me. 5. Tribunal say "It hasn't got jurisdiction in this matter" 6. I hope Federal circuit court has got Jurisdiction in this matter. 7. Or else Apex court might have Jurisdiction in this matter. 7 The applicant was required to file submissions in support of the application, but failed to do so. On 29 January 2015, the application for review in the Federal Circuit Court was heard, but the applicant failed to appear. On 30 January 2015, he applied for re-instatement of his application for review, which had been dismissed on the previous day in default of his appearance. 8 On 27 March 2015, the Federal Circuit Court heard the application for re-instatement. It refused the application, and explained its reasons as follows: 6. The applicant told the court today that he had no communication from his agent. I take that to mean that his agent did not tell him that the delegate had refused his application, and that is why he was late in lodging the application with the tribunal. However, as the tribunal found, the delegate's decision was sent to the applicant at the address he had given. The court book shows at page 3 that the applicant gave a particular email address as the address through which the Department could communicate with him. The delegate's decision appears, from page 23 of the court book, to have been sent to that address. That is so, even though the enclosed letter is addressed to the applicant at his residential address. Accordingly, there does not appear to have been any error in the sending of the delegate's decision to the applicant. 7. Accordingly, pursuant to s.494C of the Act, the 21 days began to run on 13 November 2013. The tribunal, it seems to me, was correct in calculating the time frames, and correct in determining that the time for filing the application to it expired on 4 December 2013. Therefore, the applicant was late in filing his application to the tribunal. 8. The tribunal has no discretion to extend time. Consequently, it does not appear that the applicant has any prospect of success in the substantive application, even if the court did allow the matter to be reinstated. 9. I also note that the delegate's decision indicated that the applicant had not provided evidence of a number of essential matters. He had not provided evidence of his overseas student health cover, his financial capacity, his English proficiency, his medical examination or his substantial compliance with the conditions of a previously held visa. This reinforces the view that the applicant has no real prospect of success in the substantive application. 10. Consequently, the court is not able to form the view that it would be in the interests of the administration of justice to allow the matter to be reinstated. The application for reinstatement will be dismissed. 9 On 10 April 2014, the applicant applied to the Federal Court for leave to appeal from the judgment of the Federal Circuit Court. 10 In order to obtain leave to appeal, the applicant must establish that, in all the circumstances, the judgment of the Federal Circuit Court is attended by sufficient doubt to warrant its reconsideration on appeal and that substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 844. 11 The application for leave to appeal included the following grounds: 4. There are compassionate and compelling reasons beyond my control all happening with him with immigration and migration Review Tribunal, and at last he is ended up with loosing future in Australia merely and coming to Federal court has jurisdiction to review of Federal circuit court or else other apex courts have jurisdiction to give positive result to him as he is expecting to do further education in Australia before he leaves the country. 5. I could not understand tribunals or Federal circuit court decisions. And he is not able understand the situation of Immigration regulations in Australia, therefore applicant thinks that there is no mistake has been done Immigration and Tribunal mistake it has been done by the agent and my address communication. 6. Even applicant comes to federal circuit court for legitimate decision but honourable judge RILEY has been misguided by solicitors of DIBP, federal circuit court application under the judicial Review has been made on 27th March 2015, decision has been ended up with same decision of Tribunal and immigration. He is not known any information that Federal circuit court has been requesting the further amended affidavits to be submitted to the court, actually I have not knowledge neither have an idea to send the submissions. 7. The applicant has not had any control of his situations which became very bad in Australia to provide reasons at tribunal. According to letter received by mail applicant has lodged the review application in time frame. New argument came to light which demonstrates the unsatisfactory evidence hasn't been done by Applicant, the provision of false and misleading evidence and manifest error. Does the Court below [1] have power to re-open the original appeal pursuant to either a common law power or pursuant to statute? 8. The Federal court derives its powers to accept to check my argument to give legitimate decision on the basis of Applicant is ready to provide valid reasons why he had to have unsatisfactory progress in further education, and how he is eligible to lodge the review application at Migration review tribunal if he is given chance by Federal court or DIBP (Department of Immigration and Border Protection) 9. Under the Federal court regulations, court has power to re-open an appeal in circumstances where it can be demonstrated that a Federal court has court hasn't even looked at applicant claims as there was big barrier "Judicial review has been made which has not been proved by applicant to make it Valid application", but he has exceptional circumstance beyond his control. 12 In addition, the applicant appended a handwritten page to the application, asserting that the reason that he did not appear on 29 January 2015 was that he went to the wrong courtroom. He also reasserted that the reason he did not apply to the Tribunal in time was that his agent had not forwarded him a copy of the Tribunal decision and the Tribunal decision had been sent to the agent rather than to him directly. 13 The applicant appeared and made oral submissions on the hearing of the application. He was assisted by an interpreter in the Hindi language, but mostly did not require that assistance. He explained that the email address on the visa application was the address of his agent and the agent had failed to communicate with him. Consequently he was not aware of the delivery of the decision of the Tribunal until after it was too late to bring an application for review. 14 The circumstances between the applicant and his agent are not the subject of any evidence before the Court. However, even if the facts asserted by the applicant are accepted, those facts do not demonstrate that the judgment of the Federal Circuit Court was wrong. The relevant statutory provisions are set out below. 15 Regulations 2.16(1) and (3) of the Regulations provide: 2.16 Notification of decision on visa application (1) For subsections 66(1) and 501G(3) of the Act (which deal with giving notice of decisions), this regulation sets out the way of notifying a person of a decision to grant or refuse to grant a visa. …… (3) The Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act. 16 Section 494B(1), (2) and (5)of the Act provide: 494B Methods by which Minister gives documents to a person (1) For the purposes of provisions of this Act or the regulations that: a. require or permit the Minister to give a document to a person (the recipient); and b. state that the Minister must do so by one of the methods specified in this section; (2) the methods are as follows. …… (5) Another method consists of the Minister transmitting the document by: a. fax; or b. email; or c. other electronic means; to: d. the last fax number, email address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents; or e. if the recipient is a minor—the last fax number, email address or other electronic address, as the case may be, for a carer of the minor that is known by the Minister. 17 Section 494C(1) and (5) of the Act provide: 494C When a person is taken to have received a document from the Minister (1) This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A). …… (5) If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted. 18 Section 98 of the Act provides: 98 Completion of visa application A non‑citizen who does not fill in his or her application form …is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf. 19 The time for bringing an application for review is 21 days from the notification of the delegate's decision. The time runs from the day on which notice of the decision is received. The evidence before the Tribunal indicated that the decision was transmitted on 13 November 2013 to the email address of the agent of the applicant. 20 The inevitable result of the operation of the statutory provisions is, as held by the Federal Circuit Court, that the Tribunal had no jurisdiction to hear the application. There is no doubt attending the judgment of the Federal Circuit Court. These statutory provisions are capable of operating harshly. If the circumstances outlined by the applicant occurred as he said, a matter on which I express no view, then this case is yet another example of the harsh operation of the provisions. 21 It follows that the application for leave to appeal should be refused. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate: Dated: 1 September 2015