FEDERAL COURT OF AUSTRALIA

Ram v Minister for Immigration and Border Protection [2014] FCA 159

THE COURT ORDERS THAT:

1.    The application for an extension of time within which to seek leave to appeal from the judgment of the Federal Circuit Court dated 14 October 2013 is dismissed.

2.    The applicant pay the first respondent Minister’s costs of the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The applicant, Mr Dalbara Ram, applies for an extension of time within which to seek leave to appeal from a judgment of the Federal Circuit Court. The relevant judgment was published on 14 October 2013. The applicant filed the current application on 8 November 2013. That was just a week over the expiry of the time permitted to seek leave to appeal from the judgment below; see r 35.13 of the Federal Court Rules.

2    Mr Ram says that he was ill on the day of the hearing in the Court below and was unable to appear on the day the matter was heard. Given that the extension of time required is relatively short, and that there is no prejudice to the Minister in granting such an extension, the Court would ordinarily look favourably on an extension of time to permit the appeal to be heard. However, if no useful purpose would be served in extending time because the proposed application for leave to appeal is bound to fail, there would be no utility in so doing. For the reasons which follow, the Court considers that the current application for leave to appeal is one which is bound to fail.

3    To explain why this is so, it is necessary to recount the history of the application by Mr Ram to the Migration Review Tribunal (“the Tribunal”) which was the subject of the order of the Court below.

4    On 15 March 2011, Mr Ram applied to the respondent Minister for a Skilled (Provisional) (Class VC) visa. On 2 August 2012, a delegate of the Minister made a decision refusing to grant the visa. The delegate, by letter dated 2 August, and by an email dated either 2 or 3 August, notified Mr Ram of that decision. The Court refers to the email as being transmitted on 2 or 3 August because the decision of the Tribunal at [2] refers to the email being transmitted on 3 August, yet at [18] it refers to it being sent on 2 August. Nothing turns on whether the email was transmitted on 2 or 3 August for the purposes of considering whether Mr Ram’s application before the Tribunal was out of time.

5    On 16 October 2012, Mr Ram applied for merits review of the delegate’s decision. The ultimate finding of the Tribunal was that Mr Ram was taken to have been notified of the decision in the email of 2 August 2012 and had 21 days from that date in which to review the decision of the delegate. As Mr Ram’s application was not made until 16 October 2012, the Tribunal held it had no valid application before it. It considered it had no jurisdiction to deal with the review application.

6    Mr Ram sought judicial review of the Tribunal’s decision before the Court below. The matter came on for hearing on 14 October 2013, but Mr Ram did not appear. The primary judge delivered ex tempore reasons on that day dismissing the application. Mr Ram did not give any explanation to the Court below for his non-attendance prior to the matter being called on.

7    No purpose would be achieved by allowing Mr Ram an extension of time within which to seek leave to appeal from the judgment below because, had the Court below considered the application before it, rather than dismissing it for non-attendance, it would have been bound to observe that the application by Mr Ram was not made within the prescribed time referred to in s 347 of the Migration Act 1958 (Cth) (“the Act”).

8    In that regard, this matter is not distinguishable from Patel and Minister for Immigration and Citizenship [2012] FCA 145 where at [7] the Court said:

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.

9    As the Tribunal observed in its decision, the prescribed periods are set out in reg 4.10 of the Migration Regulations 1994 (Cth) (“the Regulations”). The periods commence on the day on which an applicant is validly notified of a decision of the delegate. The 21 day time limit arises from the combined effect of s 347(1)(b)(i) of the Act and reg 4.10(1)(a) of the Regulations. The legislative scheme does not permit the Tribunal to extend these prescribed time limits.

10    Mr Ram complains that he was not notified of the decision of the delegate in early August 2012. Notification of a decision of the delegate concerning a visa is dealt with by the combined operation of ss 66, 494B, 494C and 494D of the Act and reg 2.16 of the Regulations.

11    The Minister must notify a person affected by a decision regarding the grant or refusal of a visa in the prescribed way; see s 66(1). Reg 2.16 provides that for such purposes notification of a decision to refuse a visa must be given in one of the ways specified in s 494B of the Act. One of those methods is to transmit the decision by email to the applicant’s last email address provided to the Minister. That is what occurred in this matter. Mr Ram had not supplied the Minister with the name and address of an authorised recipient for the receipt of documents from the Minister. In those circumstances, the delegate was entitled to email the decision of the last known email address of Mr Ram. The Tribunal ultimately found that the decision notice was emailed on 2 August 2013 to the correct email address of Mr Ram in accordance with s 494B(5) of the Act. There is no reason to contradict that analysis. Nothing turns on whether 3 August was the correct date of the email, rather than 2 August.

12    Mr Ram corresponded with the Tribunal. He claimed that he did not discover that his visa had been refused until notified by letter dated 11 October 2012. He said that is why he did not apply to the Tribunal until 16 October 2012. However, as explained by the Tribunal, the notification of the decision is deemed to have been received by Mr Ram in early August 2012. In addition, the statutory scheme prevents the Tribunal from extending the time to permit it to consider Mr Ram’s review application.

13    The Court below dismissed Mr Ram’s application as a consequence of judicial review for his non-attendance. It was open for it to do so, as no reason had been given for that non-attendance. Mr Ram has not sought to produce medical evidence to substantiate the claim that he could not attend on account of illness. In any event, the Court below would have been justified in dismissing the application on its merits for the reasons described above. As there is no utility in extending the time within which Mr Ram may file an application for leave to appeal such application will be dismissed.

Associate:

Dated:    28 February 2014