ATTREYA v Minister for Immigration
[2012] FMCA 105
•15 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ATTREYA & ORS v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 105 |
| MIGRATION – Migration Review Tribunal – whether Tribunal had jurisdiction – application to Tribunal out of time. |
| Migration Act 1958, ss.347(1)(b)(i), 494B, 494C(7) Migration Regulations 1994, reg.4.10(1)(a) |
| First Applicant: | POONAM ATTREYA |
| Second Applicant: | SATYENDRA ATTREYA |
| Third Applicant: | MAHIMA ATTREYA |
| Fourth Applicant: | MANU ATTREYA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1523 of 2011 |
| Judgment of: | Riley FM |
| Hearing date: | 15 February 2012 |
| Date of Last Submission: | 15 February 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 15 February 2012 |
REPRESENTATION
| Counsel for the applicants: | The applicants were not represented |
| Solicitors for the applicants: | The applicants were not represented |
| Advocate for the first respondent: | Mr Brown |
| Solicitors for the first respondent: | Australian Government Solicitor |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | Australian Government Solicitor |
ORDERS
The application filed on 21 October 2011 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $3,123.
The costs order be stayed for 60 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1523 of 2011
| POONAM ATTREYA |
First applicant
| SATYENDRA ATTREYA |
Second applicant
| MAHIMA ATTREYA |
Third applicant
| MANU ATTREYA |
Fourth applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First respondent
| MIGRATION REVIEW TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Migration Review Tribunal. The Tribunal decided that it had no jurisdiction to determine the application brought by the applicants.
The first applicant is an Indian citizen who came to Australia in December 2006 on a visitor visa with one of her children. She returned to India in March 2007 and was granted a student visa on 11 April 2008. The first applicant returned to Australia with her husband and two children on 10 May 2008 and undertook a diploma in hospitality. That was completed in March 2010.
The applicants then applied for Employer Nomination (Residence) (Class BW) visas on 12 May 2010. That application was refused by a delegate of the Minister on 13 May 2011. The delegate notified the applicants’ authorised recipient by registered post on 13 May 2011.
As it happened, the applicants had notified the department of a change of address which the delegate failed to appreciate. The delegate sent the notification to an earlier and outdated address for the applicants. The delegate’s correspondence was returned unclaimed to the Department of Immigration.
The delegate then sent a further copy of the notification letter and the visa refusal decision and relevant attachments to the correct address, being the applicants’ authorised recipient’s address, by email on
24 May 2011. It has not been suggested that the authorised recipient did not receive the email on 24 May 2011. The applicant lodged an application for review with the Tribunal on 23 June 2011.
It is that application that the Tribunal considered was out of time. Section 494C(7) of the Migration Act 1958 (“the Act”) provides that:
If:
(a)the Minister purports to give a document to a person in accordance with a method specified in section 494B… but makes an error in doing so; and
(b) the person nonetheless receives the document or a copy of it;
then the person is taken to have received the document at the times mentioned in this section as if the Minister had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case the person is taken to have received it at that later time.
It is not suggested by the applicants in this case that they did, in fact, receive the relevant documents at a later time. It is also not disputed that the Minister purported to provide the relevant documents in accordance with s.494B of the Act by posting them to the applicants’ address. It appears that the relevant documents were, in fact, provided to the applicants’ authorised recipient by email on 24 May 2011.
Consequently, 24 May 2011 is the starting date for the running of time. Pursuant to s.347(1)(b)(i) of the Act and reg.4.10(1)(a) of the Migration Regulations 1994, the applicants had 21 days from 24 May 2011 to lodge their application with the Tribunal. The applicants did not lodge their application with the Tribunal until 23 June 2011. It was nine days out of time.
The Tribunal wrote to the applicants on 8 August 2011 asking them to comment on the validity of their applications for review. The Tribunal wrote a further letter to the applicants on 19 September 2011 setting out further details of the statutory position and, again, invited the applicants to comment on the validity of the applications for review.
The Tribunal specifically stated in its second letter that:
If you have evidence that your recipient did not receive the delegate’s decision notification letter until after 24 May 2011, please forward that evidence to the Tribunal so that we may reassess the notification period and therefore the overall prescribed period in which the review application may be made.
The applicants had newly appointed agents by that time. They responded saying that the original notification of decision had been returned to the Department unclaimed. The agent said that the applicants had been unable to lodge the application for review within time because the first applicant’s employer was uncontactable until
23 June 2011. The agent said that the employer needed to lodge an application for review of the decision because it was his nomination. The applicants asked for their application to be considered by the Tribunal because of exceptional circumstances.
The Tribunal noted in paragraph 26 of its reasons that the applicants had acknowledged in their written submissions that their application to the Tribunal was out of time. The Tribunal was of the view that it was unable to consider exceptional circumstances. The Tribunal considered that it was simply not empowered to extend time for the lodgement of an application for review.
Notwithstanding any compassionate grounds that the applicants might put forward, that is correct. The Tribunal is only able to consider applications that are lodged within time.
The first applicant told the court that she accepted that the application to the Tribunal was lodged out of time. However, she again asked the court to consider the circumstances of the case and provide justice for her.
Unfortunately, the court has no discretion to overturn the decision of the Tribunal in this case. The Tribunal was bound by the legislation.
It had no jurisdiction to consider an application that was out of time. Consequently, this court has no basis for overturning the Tribunal’s decision.
In all of the circumstances, the application must be dismissed.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Riley FM
Date: 20 February 2012
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