Aulakh v Minister for Immigration

[2013] FCCA 81

FEDERAL CIRCUIT COURT OF AUSTRALIA

AULAKH v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 81

Catchwords:
MIGRATION – Whether Tribunal had jurisdiction to deal with the matter – Tribunal correctly decided there was no jurisdiction – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.347

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: SUKHPREET SINGH AULAKH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 210 of 2012

Judgment of: Judge Simpson

Hearing date: 11 April 2013

Date of Last Submission: 11 April 2013

Delivered at: Adelaide

Delivered on: 11 April 2013 – ex-tempore

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Mr d'Assumpcao

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs, fixed in the sum of SIX THOUSAND DOLLARS, FOUR HUNDRED AND SEVENTY ONE DOLLARS ($6,471.00).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 210 of 2012

SUKHPREET SINGH AULAKH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex-tempore settled reasons

1. I have before me an application for judicial review of a decision of the Migration Review Tribunal that was filed by the applicant on 20 September 2012.  The application does not identify any final orders sought, but puts as the grounds of the application, and I interpose to say that I will be reading these verbatim, the following:

   (1)Immigration Department never considered the documents.

   (2)MRT (Migration Review Tribunal) never considered the factual reality.

2. The applicant filed an affidavit with the application.  On 21 December 2012, the applicant later filed a further affidavit, namely, on 21 December 2012.  I have considered the evidence in those affidavits.  I have also considered the material contained in the green book.  When the matter was called on earlier today, the applicant appeared with an interpreter.  I questioned the applicant about whether he needed to use the interpreter and he indicated that he spoke some English but needed, on occasions, to have the assistance of an interpreter.  I allowed that to occur. 

3. The applicant has put his submissions to me and heard and answered my questions with the use of the interpreter when needed.

4. On 21 Decembers 2012, the applicant filed what he called “written submissions”.  I have considered the material contained in that submission. 

5. I have also had the benefit of written submissions by the first respondent.  Those submissions were filed on 8 April 2013.  I have satisfied myself that the applicant understood what was in the first respondent’s submissions.  I am informed that the submissions were read to the applicant with the use of an interpreter and that the applicant felt comfortable that he fully understood those submissions.

6. The applicant is an Indian national.  He applied for a Student (Temporary) (Class TU) visa on 27 October 2011.  In his application, he elected to be contacted by the Department by email, nominating the following address:  [email protected].  He further indicated that he did not receive assistance from a registered migration agent when completing the form. 

7. On 3 February 2012, a Delegate of the Minister decided to refuse to grant the visa and notified the applicant by letter which was emailed to him that day.  Prior to the decision, however, the Department had had various communications with the applicant at the nominated email address. 

8. On 29 February 2012, the applicant applied to the Migration Review Tribunal for review of the Delegate’s decision. On 21 June 2012, the Tribunal informed the applicant of its preliminary view that it did not have jurisdiction because the application had not been lodged within a period not later than 21 days after the day on which notice is received pursuant to s.347(1)(b)(i) of the Act and r.4.10(1)(a) of the Regulations. The Tribunal invited the applicant to respond to this information.

9. On 13 July 2012, the applicant provided submissions to the Tribunal.  In brief, he claimed the delay was due to his agent failing to properly inform him of the Delegate’s decision.  The applicant has said something similar to that in court today. 

10. The applicant was not in immigration detention at the time of that decision, nor was there any evidence that he had provided the name and address of an authorised recipient to receive correspondence on his behalf. 

11. In a decision record dated 24 August 2012, the Tribunal decided that it did not have jurisdiction in the matter, and on 20 September 2012, the applicant filed an application for judicial review of the Tribunal’s decision.

12. Now, the Tribunal, in its decision and reasons of 24 August 2012, gave a fulsome explanation as to why they considered that they did not have jurisdiction to deal with the matter.  Certain passages of those reasons I consider to be accurate and explain why, in this Court, the application should be dismissed.  The Tribunal had this to say:

    “6.The Tribunal’s jurisdiction arises if an application is properly made under section 347 of the Act for review of an MRT‑reviewable decision: section 348 of the Act. Section 338 of the Act and rule 4.02(4) of the Migration Regulations 1994 (the regulations) set out the various decisions that are MRT‑reviewable decisions. A decision to refuse to grant a Student (Temporary) (Class TU) Visa under section 65 of the Act is covered by section 338(2). Section 347(1)(b) requires an application for review to be given to the Tribunal within the prescribed period. The prescribed periods are set out in rule 4.10 of the regulations and commence on the day on which the applicant is validly notified of the decision.

    7.In respect of an applicant who has applied for review of an MRT‑reviewable decision covered by section 338(2) and is not in immigration detention when notified of the delegate’s decision, the application for review must be lodged at a registry of the Tribunal within a period not later than 21 days after the day on which notice is received: section 347(1)(b)(i) and rule 4.10(1)(a). Thus, notification of the decision provides the reference point for the commencement of the prescribed period provided for in section 347(1)(b)(i) and rule 4.10(1)(a). There is no provision for an extension of time. An application sent to the Tribunal by post or by fax or other electronic means is taken to be given to the Tribunal when it is received at a registry of the Tribunal: rule 4.10(5) and (6).

    8.The provisions relevant to this matter that deal with notification of a decision to refuse to grant a visa are contained in sections 66, 494B, 494C and 494D of the Act, and rule 2.16 of the regulations.

    9.Section 66(1) provides that when the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.  Regulation 2.16 provides that, for the purposes of section 66(1), the Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B.  Section 494B specifies alternative methods for giving a document to a person.

    10.One of the methods specified in section 494B consists of the Minister transmitting the document by fax or email to the last fax number or email address provided to the Minister for the purposes of receiving documents: section 494B(5). If a document is given to a person by this method, the person is taken to have received the document at the end of the day on which the document is transmitted: section 494C(5). This will be so despite the deemed receipt provisions of the Electronic Transactions Act 1999: section 494C(5) and (6). Therefore, if the notice of a decision to refuse to grant a visa was sent in accordance with section 494B(5), the prescribed period within which a review application must be lodged with the Tribunal commences at the end of the day on which the document is transmitted.

    11.If an applicant has nominated an “authorised recipient” by giving the Minister written notice of the name and address of another person authorised by the applicant to receive documents in connection with matters arising under the Act or the regulations, the Minister must give the authorised recipient, instead of the applicant, any document that the Minister would otherwise have given to the application:  section 494D(1).  If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the applicant:  section 494D(2) of the Act.  However, this does not prevent the Minister giving the applicant a copy of the document.

    12.Section 66(2) provides that notification of a decision to refuse a visa must contain certain information about why the visa was refused, and if there is a right of review, how to apply for review of the decision.

13. A little later in their reasons, the Tribunal had this to say:

    18.The material before the Tribunal indicates that the applicant did not give the Minister written notice under section 494D of the name and address of an authorised recipient, and that the decision notice, dated 3 February 2012, was transmitted by email on 3 February 2012 to the applicant’s last email address provided to the Minister for the purposes of receiving documents.

    19.The Tribunal finds that the decision notice was emailed on the day it was dated to the correct email address, in accordance with section 66(1) and section 494B(5).  Therefore, the applicant is taken to have received the notice on 3 February 2012, being the day when the notice was transmitted.

    20.The Tribunal finds that the applicant was properly notified of the delegate’s decision, and is taken to have been notified on 3 February 2012.  Therefore, the prescribed period of 21 days within which the application for review could be lodged ended on 24 February 2012.

    21.The application for review was not received by the Tribunal until 29 February 2012, after the prescribed period had expired.

    22.For these reasons, the application for review was not valid, and the Tribunal has no jurisdiction in this matter.

14. In my opinion, the analysis that the Tribunal used to determine whether or not it had jurisdiction to deal with the matter was accurate in every respect. 

15. I find that the Migration Review Tribunal did not have jurisdiction to deal with the matter for the reasons that are explained in those reasons that I have quoted. 

16. The grounds for review I have detailed earlier in these reasons.  The grounds are not directed to the question of whether the Migration Review Tribunal had jurisdiction to deal with the matter, but, rather the merits of the Tribunal’s decision.

17. I have pointed out to the applicant that it is not possible for me to conduct a merits review.  My role in these proceedings is simply limited to the question of whether there is some jurisdictional error that has been made by the Tribunal.  As was pointed out in the case of Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at pages 281 to 282, it is an impermissible course at the level of this Court to be seeking merits review. So if that is what the applicant intended with the grounds that are contained in his application, that is not a matter that I can consider.

18. The second of the grounds was that the MRT never considered the factual reality.  I am not quite sure exactly what is meant by that, but it seems to me that that it too may be aimed at a merits review. 

19. I am confident in this matter that the only real issue to be decided is whether the Tribunal was correct in deciding that it did not have jurisdiction to deal with the application.  For the reasons that I have mentioned, I consider that the Tribunal correctly decided that it did not have jurisdiction.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Date:  23 April 2013