FEDERAL COURT OF AUSTRALIA

Singh v Minister for Home Affairs [2019] FCA 724

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent, either as agreed or assessed.

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

REASONS FOR JUDGMENT

FLICK J:

1    The Appellant in the present proceeding, Mr Karam Singh, was refused the grant of a Partner (Residence) (class BS) (subclass 801) visa under the Migration Act 1958 (Cth) (the “Migration Act”) on 7 December 2016. A copy of the decision was emailed to Mr Singh’s “authorised recipient” on that day.

2    On 4 January 2017, Mr Singh applied for review of that decision by the Administrative Appeals Tribunal (the “Tribunal”).

3    On 25 January 2017, the Tribunal concluded that it did not have jurisdiction by reason of s 347(1)(b) of the Migration Act and reg 4.10 of the Migration Regulations 1994 (Cth) (the “Regulations”), which required an application for review of a decision by the Tribunal be made within 21 days of the applicant being notified of the decision.

4    Review of the Tribunal’s decision was then sought by the Federal Circuit Court of Australia. On 17 October 2018, a Judge of that Court dismissed the application for review: Singh v Minister for Immigration and Border Protection [2018] FCCA 3019. That Judge concluded that “the simple fact of the matter is that the Tribunal was correct to find that it did not have jurisdiction in this matter”: [2018] FCCA 3019 at [15].

5    A Notice of Appeal seeking review of that decision was then filed in this Court on 12 November 2018. The Notice of Appeal set forth two Grounds of Appeal, namely that the primary Judge made an error in failing to find that the Tribunal’s decision “was procedurally unfair” (Ground 1) and that the primary Judge “made an error…[in finding the] time limit was exceeded in filing case” (Ground 2). Ground 2 formed the primary focus of the oral submissions at the hearing.

6    Mr Singh appeared before this Court unrepresented. The First Respondent, the Minister, appeared by Counsel. The Second Respondent filed a Submitting Notice, save as to costs. Both Mr Singh and the Respondent Minister filed an outline of written submissions. With the leave of the Court, the Respondent Minister also filed post-hearing submissions. Mr Singh filed an additional affidavit on 5 March 2019, three weeks after the hearing.

7    The written Outline of Submissions filed by the Appellant, it should be noted, did not direct submissions to the two Grounds in the Notice of Appeal but rather to an alleged failure on the part of the primary Judge to consider the genuineness of Mr Singh’s marital relationship and to an allegation that the Federal Circuit Court decision was “not made in accordance with the personal circumstances of the Appellant”. These written submissions misconceived the role of the primary Judge; the consideration of the merits of the Appellant’s circumstances being a matter entrusted to the Minister and not the Federal Circuit Court. The appeal has thus been resolved by reference to the two Grounds set forth in the Notice of Appeal.

8    The appeal is to be dismissed with costs.

Section 347 & reg 4.10

9    Section 347(1) of the Migration Act, which sits within Div 3 of Pt 5 of the Act, provides in relevant part as follows:

Application for review of Part 5-reviewable decisions

(1)    An application for review of a Part 5-reviewable decision must:

(a)    be made in the approved form; and

(b)    be given to the Tribunal within the prescribed period, being a period ending not later than:

…

(iii)    if the Part 5-reviewable decision is covered by subsection 338(9)—the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision; …

Section 338(9) of the Migration Act provides that a “decision that is prescribed for the purposes of this subsection is a Part 5-reviewable decision”.

10    Regulation 4.10 of the Regulations provides in relevant part as follows:

Time for lodgment of applications with Tribunal (Act, s 347)

(1)    For paragraph 347(1)(b) of the Act, the period in which an application for review of a Part 5-reviewable decision must be given to the Tribunal:

…

(d)    if the Part 5-reviewable decision is prescribed under subsection 338(9) of the Act — starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received.

…

11    No provision of the Migration Act or of the Regulations confers any power on the Tribunal to extend the time prescribed by reg 4.10: cf. Patel v Minister for Immigration and Citizenship [2012] FCA 145 at [7] per Marshall J.

12    In the absence of any express power to extend time, a conclusion is available that this was a “deliberate choice by Parliament”: Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324 at [21], (2000) 97 FCR 407 at 412 per Heerey J (Dowsett J agreeing) (“Fernando”). The Tribunal has no power to “override” the time prescribed by Parliament: VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 311 at [32] to [33], (2003) 133 FCR 570 at 578 per Gray, Whitlam and Mansfield JJ.

An application that was out of time

13    Section 494C of the Migration Act provides for the date “when a person is taken to have received a document from the Minister” and s 494C(5) provides that where a document has been sent by way of email a “person is taken to have received the document at the end of the day on which the document is transmitted”. The section operates as a “deeming provision” and does not create a “rebuttable presumption”: Minister for Immigration & Citizenship v Manaf [2009] FCA 963 at [21], (2009) 111 ALD 437 at 441 per Sundberg J.

14    Section 494D of the Migration Act provides for the giving of notice to an “authorised recipient”. Section 494D(2) provides that the giving of notice to an “authorised recipient” is taken to be the giving of notice to the visa applicant.

15    Mr Singh is thus deemed to have received the decision refusing his application for a Partner visa “at the end of the day” on which it was emailed to his “authorised recipient”, namely 7 December 2016.

16    But for any operation of the Acts Interpretation Act 1901 (Cth), 21 days after 7 December 2016 expired on 28 December 2016. Section 36(2) of that Act operates such that if the period expired on a Saturday, Sunday or a holiday, an application could be filed “on the next day that is not a Saturday, Sunday or a holiday”. But that section does not seem to avail Mr Singh, as 28 December 2016 was a Wednesday and was not a public holiday. And the Sydney office of the Tribunal was open on 28 December 2016 and accepting applications for filing.

17    The primary Judge was thus correct in concluding that the application was out of time and that the Tribunal was itself correct in concluding that it had no jurisdiction. It matters not whether there were reasons for the delay which may have warranted an extension of time being granted, assuming there was power to do so. The “adverse consequences… visited upon” Mr Singh by reason of his application being out of time are those which follow from s 347(1)(b)(iii) and s 494C of the Migration Act and reg 4.10 of the Regulations: Calimoso v Minister for Immigration and Border Protection [2016] FCA 1335 at [30], (2016) 70 AAR 503 at 510 per Charlesworth J. Any “rigidity” in the “harsh” application of the time limits prescribed “result from the considered decision of the legislature as to an appropriate way to facilitate visa applications and to clarify when documents are received”: Tay v Minister for Immigration and Citizenship [2010] FCAFC 23 at [19], (2010) 183 FCR 163 at 167 per Dowsett, Stone and Bennett JJ. See also: Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 at [40] to [50] per McKerracher, Reeves and Thawley JJ.

18    An application not made in accordance with s 347(1)(b)(iii) is “not a valid application” and not one which the Tribunal “has jurisdiction to review…”: cf. Fernando [2000] FCA 324 at [18], (2000) 97 FCR at 412 per Heerey J. The fact upon which the jurisdiction of the Tribunal depends is objective – and one not dependent upon any state of satisfaction being formed by the Tribunal – and hence susceptible of determination by a Court: Singh v Minister for Immigration and Border Protection [2015] FCA 220 at [37], (2015) 231 FCR 573 at 583 to 584 per Perry J.

CONCLUSIONS

19    In circumstances where Mr Singh did not file his application for review with the Tribunal within the 21 days prescribed, the Tribunal had no jurisdiction to review the application which was filed thereafter. The primary Judge made no error in finding the application was filed out of time. Ground 2 of the Notice of Appeal is therefore rejected.

20    Furthermore, in such circumstances where the application for review before the Tribunal was filed out of time, the Tribunal had no jurisdiction to make any assessment regarding the personal circumstances of Mr Singh. For this reason, the primary Judge did not err in failing to find procedural unfairness on the basis that the Tribunal did not consider Mr Singh’s personal circumstances. Ground 1 of the Notice of Appeal is also rejected.

21    In the absence of appellable error on the part of the primary Judge, the appeal is to be dismissed.

22    There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent, either as agreed or assessed.

Associate:    

Dated:    23 May 2019