FEDERAL COURT OF AUSTRALIA

Saroj v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 51

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

GLEESON J:

1    This is an appeal from a decision of a judge of the Federal Circuit Court of Australia (FCCA) dismissing the appellant’s application for judicial review of a decision of the second respondent (Tribunal): Saroj v Minister for Immigration & Anor [2018] FCCA 3134. The Tribunal had determined that it did not have jurisdiction to review a decision of a delegate of the first respondent (Minister) refusing to grant the appellant a Partner (Temporary) (Class UK) visa (visa).

2    On 20 June 2019, the appellant was granted an extension of time to file a notice of appeal in this Court by consent.

3    The appellant raised two grounds of appeal, expressed as follows:

(a)    I disagree with the decision to dismiss the application file SYG 1731/2016 because I did not receive any notification regarding the court appearance date.

(b)    A recent Federal Court decision found that the AAT can extend the time limits for applying for review in most visa related cases.

4    The appellant did not file written submissions in support of his appeal.

5    The appellant represented himself at the hearing on 25 November 2019 with the assistance of a Thai interpreter. The appellant stated that he had “nothing else to say” concerning his appeal.

Background

6    The appellant is a 44 year old citizen of Thailand.

7    The appellant applied for the visa in March 2014, following marriage to his sponsor in Sydney on 14 February 2014.

8    When the appellant lodged his application, he was represented by a migration agent, being Mr Thongpanh Malivong (agent). The appellant authorised his agent to receive correspondence on his behalf, by email to the email address “visasydney@australian.co.th”.

9    On 1 February 2016, the Minister’s delegate refused to grant the visa to the appellant. The appellant was notified of the delegate’s decision by a letter dated 1 February 2016, which was emailed to the email address (notification letter). A written decision record was also provided with the notification letter. In summary, the delegate concluded that the evidence and information provided by the appellant was not sufficient to demonstrate that the appellant was the spouse of the sponsor within the meaning of the Migration Act 1958 (Cth) (Act).

Tribunal proceeding

10    On 23 February 2016, the appellant applied to the Tribunal for merits review of the delegate’s decision.

11    On 8 June 2016, the Tribunal concluded that it did not have jurisdiction to hear and determine the appellant’s application because it was filed out of time.

12    The Tribunal found that the appellant was notified of the delegate’s decision on 1 February 2016 in accordance with the relevant statutory requirements by the notification letter and that the time for filing the application ended on 22 February 2016.

13    The Tribunal also found that it had no discretion to accept an application lodged out of time and that there was no provision for an extension of the time for lodgement of an application.

The FCCA’s Decision

14    By application filed on 5 July 2016, the appellant sought judicial review of the Tribunal’s decision. The grounds of the application were as follows:

 1.    MRT review application was lodged with the Tribunal on 01/02/2016.

 2.    The decision was made without considering visa subclass requirement.

3.    The decision was made with considering the technical defect of immigration department.

15    The FCCA judge found that the notification letter and the delegate’s decision record were sent by email to the appellant on 1 February 2016 to the nominated email address.

16    At [28] of his Honour’s reasons, the FCCA judge was satisfied that the Tribunal’s determination that it did not have jurisdiction “was clearly correct”, citing Calimoso v Minister for Immigration and Border Protection [2016] FCA 1335 (Calimoso) per Charlesworth J.

17    His Honour further found, at [29] of his Honour’s reasons, that the Tribunal did not have any power to “override or extend” the time limit for seeking review.

Appeal to this Court

Ground 1

18    The precise complaint made by ground 1 is not clear. There was no apparent failure of notification of any appearance date in the FCCA, and there was no appearance date in the Tribunal.

19    To the extent that ground 1 seeks to challenge the finding of either the Tribunal or the FCCA judge that he received the notification letter, there was evidence that the notification letter was forwarded to the appellant at the nominated email address on 1 February 2016 and no evidence to the contrary.

20    Accordingly, ground 1 does not disclose any legal error.

Ground 2

21    The appellant adverts to two decisions of Greenwood J to support his contention that the Tribunal has power to extend time: Brown v Minister for Home Affairs [2018] FCA 1643 and Brown v Minister for Home Affairs (No 2) [2018] FCA 1787 (Brown No 2). In Brown No 2 at [25], Greenwood J concluded that the Tribunal “ought to have recognised that it had the power to extend time”, and by failing to recognise and consider whether to exercise that power, the Tribunal fell into error.

22    However, Brown No 2 was overruled by the Full Court in Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 (Beni). In Beni, the Full Court found that the Tribunal did not have the power to extend the time in which a review applicant could seek review by the Tribunal, stating at [83] that “we are firmly of the view … that Brown No 2 was wrongly decided and should not be followed”.

23    More recently, in Monga v Minister for Immigration and Border Protection [2019] FCA 286, Charlesworth J noted at [17] that no appealable error was committed when the primary judge concluded that the Tribunal did not have any discretion to extend the timeframe imposed by the statute or otherwise accept an application for review out of time.

24    The FCCA judge was, therefore, correct to conclude, at [29] of his Honour’s reasons, that the Tribunal could not “override or extend” the applicable time limit for seeking review.

25    Accordingly, ground 2 does not disclose any legal error.

Issue raised by the Minister

26    The Minister submitted that an additional issue may arise on the appeal, namely, whether the appellant was notified of the Minister’s decision in accordance with s 66(2)(d)(ii) of the Act, which requires the notification to “state … the time in which the application for review may be made”. The issue identified by the Minister was whether the notification letter identified the time with sufficient clarity: cf. DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 (DFQ17) at [58]; BMY18 v Minister for Home Affairs [2019] FCAFC 189 (BMY18) at [59].

27    A failure to notify in accordance with s 66(2) of the Act results in the time to seek review of the delegate’s decision in the Tribunal not commencing to run: DFQ17 at [62].

28    The appellant did not adopt the Minister’s suggestion that there was an issue concerning the finding of the FCCA judge on this point. On the facts found by the FCCA judge, the appellant stated that he knew of the time limit. In those circumstances, it is not surprising that the appellant has not raised the issue posited by the Minister and it is unnecessary to address it.

Conclusion

29    The appeal must be dismissed. Costs should follow the event.

Associate:

Dated:    6 February 2020