FEDERAL COURT OF AUSTRALIA

Khabra v Minister for Immigration and Border Protection [2015] FCA 1405

THE COURT ORDERS THAT:

1.    The application for leave to appeal is dismissed.

2.    The Applicant to pay the First Respondent’s costs.

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

REASONS FOR JUDGMENT

1    In this proceeding the applicant, Jaspreet Singh Khabra, seeks leave to appeal from an interlocutory judgment of the Federal Circuit Court (Khabra v Minister for Immigration & Anor [2015] FCCA 2484), dismissing his application for judicial review of a decision of the second respondent, the Migration Review Tribunal (“Tribunal”) (as it then was). The Tribunal decided that it did not have jurisdiction to determine his application for review of a decision of a delegate of the Minister for Immigration and Border Protection (“Minister”) not to grant him a Partner (Temporary) (Class UK) or a Partner (Residence) (Class BS) visa (“partner visa”).

2    The Tribunal based the decision that it had no jurisdiction on the fact that the application for review of the delegate’s decision was lodged outside the period allowed under the Migration Act 1958 (Cth) (“the Act”). The applicant did not contend that the application was within time and he argued only that it was late because of his migration agent’s negligence.

3    For the reasons I set out below, I consider the appeal has no prospect of success and leave to appeal therefore must be refused. As I explain, in my view the Tribunal was correct in deciding that it had no jurisdiction to deal with an application for review lodged out of time.

4    It was not the Court’s task to decide how the application for review came to be lodged out of time and I am not in a position to assess the correctness of the applicant’s complaint regarding his migration agent’s negligence. However, if the applicant can make out his complaint in that regard I have no difficulty in accepting that the applicant has been very poorly served by his migration agent. Because the application for review was lodged out of time the applicant can now only pursue his application for a partner visa from outside Australia. He will suffer hardship because he will be forced to return to India as will his spouse. His spouse, who is a permanent resident of Australia, must either go to India with him or she must accept that they will be separated.

5    I have requested the District Registrar to refer the conduct of the migration agent to the Office of the Migration Agents Registration Authority (“MARA”) for investigation and to consider whether he should be allowed to maintain his registration.

The procedural history

6    The applicant is a 25 year-old citizen of India who came to Australia on 6 November 2008 on a Student (subclass TU-573) visa. That visa ceased on 30 September 2011 and he became an unlawful non-citizen under the Act. On 14 July 2013, while he was an unlawful non-citizen, he married an Australian permanent resident, Irene Poni. The applicant is currently in Australia on a bridging visa.

The application for a partner visa

7    On 6 August 2013 the applicant applied for partner visa, sponsored by Ms Poni. The applicant appointed a migration agent to represent him in the application, Neeraj Sharma, trading as SharOAM Consulting of Level 7, 289 Flinders Lane, Melbourne. Mr Sharma completed a Form 956 headed “Advice by a migration agent/exempt person of providing immigration assistance”. In that form Mr Sharma declared that he had been appointed the applicant’s migration agent and agreed to receive communications from the Department of Immigration and Citizenship (“Department”) by electronic means including email. He provided the Department with his email address, neeraj@sharoam.com, as the authorised email address (“the authorised email address”).

8    On 15 July 2014 the delegate of the Minister refused the application for a partner visa (“delegate’s decision”) and the Department emailed the decision to Mr Sharma at the authorised email address the same day.

The application to the Tribunal

9    On 8 August 2014 the applicant personally lodged an application to review the delegate’s decision with the Tribunal.

10    By letter dated 15 August 2014 the Tribunal informed the applicant that the Act required an application for review to be lodged within 21 days of the date upon which he was taken to have been notified of the delegate’s decision. On the basis that the applicant was notified of the delegate’s decision when it was emailed to the authorised email address on 15 July 2014, the Tribunal said that the last day for lodging the application for review was 5 August 2014. The Tribunal considered the application for review was not valid as it had been lodged out of time but invited the applicant to comment on that proposition.

11    By email on 2 September, 2014 the applicant informed the Tribunal that Mr Sharma had failed to act in a timely way in dealing with his application for a partner visa. He said that, notwithstanding Mr Sharma’s assurances that he was looking after the application, Mr Sharma did not inform him at the time that his application had been refused, and he was only informed when he visited Mr Sharma on 7 August 2014 to get an update. The applicant said Mr Sharma also incorrectly told him that he had 28 days to lodge an application for review with the Tribunal, but that when he got home after the meeting with Mr Sharma he saw that the time limit was 21 days. He said that he tried to telephone Mr Sharma and to get an appointment to see him. However, Mr Sharma did not respond to his telephone calls and was not available for appointment. He said that he then had no option but to apply to the Tribunal himself, which he did on 8 August 2014. He described Mr Sharma’s conduct as unprofessional and negligent.

12    On 8 October 2014 the Tribunal notified the applicant that it had considered his submissions regarding the reasons the application for review was made out of time. The Tribunal said that it was satisfied that notification of the delegate’s decision had been transmitted to the authorised email address on 15 July 2014. It concluded that the applicant was taken to have received the delegate’s decision on 15 July 2014, and that the prescribed period within which any application for review was to be lodged was 21 days, which ended on 5 August 2014. It said that since the application for review was not received by the Tribunal until 8 August 2014, it had not been made in accordance with the Act. The Tribunal decided that it had no jurisdiction to determine the application.

The application to the Federal Circuit Court

13    On 7 November 2014 the applicant filed a proceeding in the Federal Circuit Court seeking an order that the Tribunal’s decision be quashed. It alleged that the Department sent the refusal of the partner visa application directly to his migration agent who did not inform him about the refusal within the 21 day time limit, and that the applicant applied to the Tribunal as soon as he was informed of the refusal. It stated that the applicant was not satisfied with the decision that the Tribunal had no jurisdiction.

14    Registrar Allaway ordered that the proceeding be listed for a ‘show cause’ hearing under Rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”). The learned primary judge heard that interlocutory application on 28 August 2015 and dismissed the substantive proceeding. Her Honour made the following observations and findings (at [12]-[14]):

(a)    the applicant did not dispute that the delegate’s decision was sent to the authorised email address and received by Mr Sharma;

(b)    the application for review to the Tribunal was not made within the prescribed 21 day period;

(c)    even if the Court were to accept, without evidence, that Mr Sharma did not inform the applicant of the delegate’s decision, the Act provided no discretion to the Tribunal to extend the time within which an application for review could be made;

(d)    there was no evidence that Mr Sharma’s conduct constituted fraud on the Tribunal; and

(e)    given the operation of s 347(1) of the Act and reg. 4.10 of the Migration Regulations 1994 (Cth) (“Regulations”) there was no outcome open to the Tribunal other than the decision that had no jurisdiction.

The application for leave to appeal

15    A judgment of the Federal Circuit Court under r. 44.12 is interlocutory: see r. 44.12(2) of the FCC Rules. In accordance with s 24(1A) of the Federal Court of Australia Act 1976 (Cth) the applicant is required to obtain leave to appeal.

16    On 8 September 2015 the applicant filed an application for leave to appeal in this Court together with a draft Notice of Appeal. Neither the application for leave to appeal or the draft Notice of Appeal are clear in their terms but, doing the best I can, they allege that the Federal Circuit Court erred in that:

(a)    there were mitigating factors behind the delay in lodging the application for review;

(b)    the Federal Circuit Court misunderstood the applicant’s case because the applicant was forced to attend the hearing on 28 August 2015 despite:

(i)    having a foot injury and despite his wife being unable to attend because of ill health; and

(ii)    not knowing that the Court had requested further submissions and an amended application;

(c)    there were exceptional circumstances as to why the applicant had lodged the partner visa application onshore and he and his spouse were ready to provide those reasons to the Court;

(d)    a new argument had come to light which demonstrated that the unsatisfactory evidence was not “done by” the applicant or his spouse including the provision of false and misleading evidence; and

(e)    the Federal Court had power to reopen an appeal in circumstances where it can be demonstrated that a court has not even looked at the applicant’s claims.

The relevant principles in an application for leave to appeal

17    The Court has an unfettered discretion to grant leave to appeal from an interlocutory judgment but the exercise of the discretion is guided by well-recognised principles. In Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399; [1991] FCA 844; (Sheppard, Burchett and Heerey JJ) the Full Court adopted the observations in Niemann v Electronic Industries Ltd [1978] VR 431 that the following considerations are an appropriate litmus test for the general run of cases in which such leave is sought, namely:

(a)    whether, in all the circumstances, the decision is attended with sufficient doubt to warrant it being reconsidered; and

(b)    whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

The test is cumulative and not satisfied unless each limb is satisfied: Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139; (2010) 81 ATR 36 (Ryan, Stone and Jagot JJ) at [5].

Consideration

18    It is therefore necessary for the applicant to establish that there is sufficient doubt about the decision of the Federal Circuit Court to warrant a grant of leave to appeal. However, there is nothing in the grounds on the draft Notice of Appeal to disclose any basis for finding that the decision of the Federal Circuit Court is attended by such doubt.

19    Section 494D of the Act provides that a person (the first person) may give the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to receive documents in connection with specified matters arising under the Act or the Regulations. When the first person does so, the Minister must give the authorised recipient any documents that the Minister would otherwise have given to the first person. If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. It is uncontentious that the applicant authorised Mr Sharma to be the authorised recipient of any document which the Minister would otherwise have given to the applicant.

20    Regulation 2.16(3) of the Regulations provides that the Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in s 494B of the Act.

21    Section 494B of the Act sets out the methods by which the Minister may give documents to a person. Subsection (5) provides that the Minister may transmit a document by email to the email address provided to the Minister for the purposes of receiving documents. It is uncontentious that the applicant (and Mr Sharma) authorised the Minister to send the delegate’s decision to the authorised email address, neeraj@sharoam.com. It is also uncontentious that the Minister emailed the delegate’s decision to that address on 15 July 2014. While it would make little difference to the result, there is no suggestion that the delegate’s decision was not received by Mr Sharma at that time.

22    Section 494C(5) is a deeming provision. It provides that if the Minister gives a document to a person by a method in s 494B(5) the person is taken to have received the document at the end of the day on which the document is transmitted. It follows that the applicant was taken to have received the delegate’s decision on 15 July 2014.

23    The delegate’s decision is a MRT-reviewable decision under s 338(2) of the Act because it is a decision to refuse to grant a non-citizen a visa when the application is made by a person in the migration zone and, relevantly, not made when the person is in immigration clearance or has been refused immigration clearance. Pursuant to s 347(1)(b) of the Act and reg. 4.10(1)(a) of the Regulations, the prescribed period within which any application for review was required to be lodged is 21 days after notification of the decision.

24    The period of 21 days after 15 July 2014 ended on 5 August 2014. The application for review was not received by the Tribunal until 8 August 2014, and therefore it was not made in accordance with the Act.

25    The applicant’s only argument before the primary judge was that his migration agent did not inform him of the delegate’s decision in a timely way. He did not put on evidence of Mr Sharma’s alleged failure but, even if the Tribunal accepted that Mr Sharma failed to inform the applicant of the delegate’s decision within time, the Act provides no discretion for the Tribunal (or the primary judge) to extend the time in which the applicant could file an application, regardless of the circumstances: see Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86; [2010] FCA 461 at [49]-[70] (Jacobson J); Islam v Minister for Immigration and Citizenship [2012] FCA 304 (North J).

26    Having regard to the clear words of the provisions I respectfully agree with the learned primary judge that, absent any suggestion of fraud on the Tribunal, the application for review had no reasonable prospect of success. I can see no error in the Tribunal’s decision that it lacked jurisdiction to determine the application for review, and I can see no appealable error in her Honour’s decision to dismiss the application for judicial review.

Conclusion

27    I have dismissed the application for leave to appeal because the decision of the Federal Circuit Court is not attended with sufficient doubt to warrant it being reconsidered. The applicant is ordered to pay the Minister’s costs of and incidental to the appeal. I have also requested the District Registrar to refer Mr Sharma’s conduct to MARA.

Associate:

Dated:    11 December 2015