Federal Court of Australia

Godara v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1341

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.

2.    The appeal be dismissed.

3.    The appellant pay the costs of the first respondent, fixed in the amount of $3,228.00.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is an appeal from the decision of the then Federal Circuit Court in Godara v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 358 (primary decision) filed by the appellant on 19 March 2021. The primary decision concerned an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). Ultimately, the Tribunal determined that it did not have jurisdiction to review a decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (Minister) as the application for review before the Tribunal was filed out of time. Relevantly, the decision of the delegate of the Minister was to refuse the appellant a Regional Employer Nomination (Class RN) (subclass 187) visa.

2    The appellant relies on one ground of appeal before this Court, namely:

1.    The AAT did not give me any opportunity to attend the hearing and then the Federal Circuit Court did not give me much time at the hearing to explain my case as it was finished in about 5 minutes and also I explained to the court that I have no money to pay the fine of $6,100 which is very difficult for me because I was not employed for a very long time and I recently just got a job as a chef.

3    The appellant seeks the following orders:

1.    An Order that the Decision of the AAT be quashed.

2.    A writ of mandamus directed to the Respondents, requiring them to determine the applicant’s application according to law.

3.    Costs.

4    The background facts have been set out in the primary decision and are not in dispute.

5    The matter came before me for hearing on 10 November 2022. The appellant did not file any written submissions and relied solely on oral arguments. Those submissions were brief in nature, and in summary were that:

    she had been under substantial stress at the relevant time;

    she was not in a position to have her material ready to file with the Tribunal within the prescribed time; and

    she wanted further time to stay in Australia in order to apply for another visa.

6    Relevant legislative provisions are found in the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth).

7    Section 347 of the Migration Act relevantly provides:

347. Application for review of Part 5-reviewable decisions

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

(a) …

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

(i) if the Part 5-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)--28 days after the notification of the decision; or

8    Regulations 4.10 and 4.11 of the Migration Regulations provide:

4.10 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:

(a) if the Part 5‑reviewable decision is mentioned in subsection 338(2) or (7A) 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; or

(b) if the Part 5‑reviewable decision is mentioned in subsection 338(3) or (3A) of the Act—starts when the applicant receives notice of the decision and ends at the end of 7 working days after the day on which the notice is received; or

(c) if the Part 5‑reviewable decision is mentioned in subsection 338(5), (6), (7) or (8) of the Act—starts when the applicant receives notice of the decision and ends at the end of 70 days after the day on which the notice is received; or

(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.

(2) However, the period in which an application by a detainee for review of a Part 5‑reviewable decision must be given to the Tribunal:

(a) in the case of an application for review of a decision of a kind mentioned in subsection 338(4) of the Act—starts when the detainee receives notice of the decision and ends at the end of 2 working days after the day on which the notice is received; or

(aa) in the case of an application for review of a decision to which paragraph 4.02(4)(f) applies—starts when the detainee receives notice of the decision to refuse to grant the visa mentioned in subparagraph 4.02(4)(f)(ii) and ends at the end of 2 working days after the day on which the notice is received; or

(b) in any other case—starts when the detainee receives notice of the decision and ends at the end of 7 working days after the day on which the notice is received.

(2A) For subparagraph 347(1)(b)(iii) of the Act, the prescribed number of days in respect of a Part 5‑reviewable decision prescribed under subsection 338(9) of the Act is 28 days.

Note: For subparagraph 347(1)(b)(iii) of the Act, there must be a prescribed number of days in respect of kinds of decisions covered by subsection 338(9) of the Act. The prescribed period for applications for review must end not later than the prescribed number of days after notification of the decision.

4.11 Giving the application to the Tribunal

(1) An application for review by the Tribunal must be given to the Tribunal by:

(a) leaving it with an officer of the Tribunal at a registry of the Tribunal, or with a person specified in a direction given by the President of the Tribunal under section 18B of the Administrative Appeals Tribunal Act 1975; or

(b) sending the application by pre‑paid post to a registry of the Tribunal; or

(c) having the application delivered by post, or by hand, to an address specified in a direction given by the President of the Tribunal under section 18B of the Administrative Appeals Tribunal Act 1975; or

(d) faxing the application to a fax number specified in a direction given by the President of the Tribunal under section 18B of the Administrative Appeals Tribunal Act 1975; or

(e) transmitting it to a registry of the Tribunal by other electronic means specified in a direction given by the President of the Tribunal under section 18B of the Administrative Appeals Tribunal Act 1975.

(2) An application made to the Tribunal in accordance with paragraph (1)(a) or (b) is taken to have been received by the Tribunal at the time the Tribunal receives it.

(3) An application made to the Tribunal in accordance with paragraph (1)(c) is taken to have been received by the Tribunal at the time it is received at the relevant address.

(4) An application made to the Tribunal in accordance with paragraph (1)(d) is taken to have been received by the Tribunal at the time it is received at the relevant fax number.

(5) An application made to the Tribunal in accordance with paragraph (1)(e) is taken to have been received by the Tribunal at the time the Tribunal receives it.

9    It does not appear to be in dispute that the decision of the delegate which the appellant sought reviewed by the Tribunal was a Part 5-reviewable decision covered by subsection 338 (2) of the Migration Act.

10    As the primary Judge explained, by reference to such decisions as SZJQC v Minister for Immigration and Citizenship [2008] HCASL 66, SZULH v Minister for Immigration and Border Protection [2015] FCA 835 and DZAFH v Minister for Immigration and Border Protection [2017] FCA 984, an application that is not given to the Tribunal within the requisite period prescribed by the Migration Act and the Migration Regulations is not valid, and the Tribunal has no jurisdiction to review an application given out of time.

11    I note that the application of the appellant appears to have been only a few days late. Unfortunately the legislation gives no discretion to the Tribunal to extend the time for her to have made that application.

12    No error in either the decision of the primary Judge or the Tribunal is identified.

13    The appeal is dismissed.

14    In conclusion I further note following.

15    In her ground of appeal the appellant referred to a “fine” of $6,100.00. Insofar as I understand it, there was no fine – rather that sum was fixed as costs against the appellant by the primary Judge in Order 2 of his Honour’s orders of 26 February 2021. I note the contention of the appellant that she cannot afford to pay those costs, however this is not a basis of appeal against his Honour’s orders.

16    Second, I note that in her ground of appeal the appellant claimed that “the Federal Circuit Court did not give me much time at the hearing to explain my case as it was finished in about 5 minutes”. As I noted in Court today to the parties, the hearing before me scarcely exceeded 5 minutes, plainly because:

    the appellant’s oral submissions were so brief;

    as I have already observed, the appellant had filed no written submissions or any material other than her notice of appeal; and

    the Minister was content to rely on written submissions.

17    Further, the Minister has sought an order for costs, fixed in the amount of $3,228.00. The lawyer with carriage of the matter for the Minister, Ms Tinlin, deposed in her affidavit of 7 November 2022 that this sum was a reduction of 25% of the prospective solicitor costs in the amount of $4,304.00 (exclusive of GST). In my view the amount of $3,228.00 is a fair sum to order as fixed costs.

Associate:

Dated:    10 November 2022