BHARTI v Minister for Immigration - [2012] FMCA 1130

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BHARTI & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1130

MIGRATION – Judicial review – failure to commence review application in time – application for review declined by migration review tribunal – no error.

Migration Regulations 1994, cl.572.223
Migration Act 1958, ss.66(2), 338(2)

First Applicant:

AKRITI BHARTI

Second Applicant:

ASHISH MADAN

First Respondent:

MINISTER FOR IMMIGRATION & ANOR

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

BRG 419 of 2012

Judgment of:

Jarrett FM

Hearing date:

21 November 2012

Date of Last Submission:

21 November 2012

Delivered at:

Brisbane

Delivered on:

21 November 2012

REPRESENTATION

The first applicant appeared in person

No appearance for the second applicant

Solicitor for the Respondent:

Ms Slack

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application filed on 16 May 2012 be dismissed.
The first and second applicant’s pay the first respondent’s costs of and incidental to these proceedings fixed in the sum of $6,471.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 419 of 2012

AKRITI BHARTI

First Applicant

ASHISH MADAN

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex tempore

This is an application for judicial review of a decision of a migration review tribunal made on 17 April, 2012.
On 26 August, 2011 the first applicant applied for a Student (Temporary) (Class TU) visa. The second applicant is the husband of the first applicant, and applied as a member of her family unit. A delegate of the first respondent refused to grant to the applicants the visa. The applicants applied for a review of the delegate’s decision by a migration review tribunal. The tribunal found that it had no jurisdiction to review a decision of the delegate of the second respondent dated 25 October, 2011 because the application was made outside of the time limited for making such an application.
Today on the hearing of this application, the first applicant has appeared on her own behalf. The second applicant has not appeared. Until today, the applicants were represented by legal counsel, but that person sought leave to withdraw this afternoon, and that leave was granted.
In the visa application form made by the first applicant, there was provided an email address, and by the application the applicants confirmed that they agreed to the Department communicating with them by email.
On 25 October, 2011 the first respondent’s delegate refused to grant the relevant visa to the first applicant and second applicant because the delegate was not satisfied that the first applicant met the requirements of clause 572.223 of Schedule 2 of the Migration Regulations 1994.
The delegate’s decision was communicated to the applicants via their email address on 25 October, 2011 under the cover of a letter of that date. That communication is the subject of dispute between the parties. The applicants’ case is that they never received that communication, and that, more than that, it was never sent. The point is significant, because if the email was sent, then the applicants are deemed to have received it – there is no contest between the parties about that.
If it was not sent, then there has been no compliance with the relevant Regulations and so the decision that is now under challenge ought to be quashed.
Exhibit 2 in these proceedings is a document which has been provided to the applicants and which is said to demonstrate that the relevant email was sent from the Department’s server, and so there is evidence before the Court that the relevant email was sent.
These proceedings have been listed for trial before, and when the matter came on for hearing on the last occasion on 5 October, 2012 there was a request for an adjournment, which was granted, so that the applicants might secure some evidence designed to show that the relevant email was not sent from the first respondent’s server. No evidence is presented now by the first applicant to that effect.
The first applicant has asked for the proceedings to be adjourned, but I have refused the adjournment on the basis that the first applicant has had ample time to prosecute her application, to gather the relevant evidence and to place it before the Court. I am fortified in that view by the terms of exhibit 1, which is a letter from her Counsel to her in relation to the additional evidence that I was told on the last occasion this application was adjourned was to be secured for the purposes of this application. In that letter, Mr Markwell says:
I refer to the above matter and confirm that I have repeatedly requested you for funds in order to be able to provide payment to an IT person in order that this person may be able to do a search on your computer and also the Department of Immigration and Citizenship’s computer server in order that they may be able to determine whether the email that DIAC allegedly forwarded to you on 25 October 2011 was actually sent.
I confirm that I have arranged for an IT specialist to carry out the above inquiries, but I must have funds in order to pay for his services before this person commences the inquiries for you.
The letter goes on to record the requests made by Mr Markwell of the first applicant and records the fact that no response had been received from her. It points out how much time was left between when the letter was sent and today’s hearing date and how much time the IT specialist would need to complete his or her inquiries. It is clear from the terms of exhibit 1 that the letter was addressed to the first applicant, not the second and that arrangements were well in hand for the relevant evidence to be obtained via an IT specialist. The only matter that remained was a question of the payment of funds.
In her submissions to me, the first applicant did not suggest that she was unable to meet the request for funds nor that she had not received the letter which is exhibit 1, but rather, her submissions focused on the notion that her husband, who is the second applicant, remained an applicant in these proceedings, and it seems she took the view that by providing the funds that were requested by Mr Markwell, she was in some way assisting him in his application.
From what she said from the Bar table, it seems that the first and second applicants have had a falling out. It may be that they are no longer living together and that there has been some violent incidents between them, hence the first applicant’s lack of a desire to assist the second applicant. But in the context of the present inquiry, none of that is important.
What is important is that:
a)the proceedings were adjourned on the last occasion to provide the applicants with the opportunity to secure the evidence that they wished to secure;
b)arrangements to secure that evidence were well in hand, as is evidenced by exhibit 1;
c)all that was needed to be done was the provision of funds by the first applicant; and
d)the existence of the second applicant as a party to these proceedings has no bearing on matters (a), (b) or (c).
Exhibit 2 establishes, as I have already indicated, that the email left the Departmental server; there is no evidence to the contrary. On 25 January, 2012 the applicants applied to a migration review tribunal to review the delegate of the first respondent’s decision. The tribunal sought certain clarification from the first respondent as to whether there was evidence about the relevant email transmissions, and the tribunal made the inquiries it saw fit and satisfied itself of the matters that it thought necessary.
The tribunal wrote to the applicants on 16 March, 2012 inviting them to comment on its preliminary view that it did not have jurisdiction, as the application was received outside of the prescribed time limit. The tribunal received written submissions from the applicants’ representatives on 23 March, 2012 and it considered them. The tribunal’s decision made on 17 April, 2012 affirmed the delegate’s decision to refuse the applicants’ visa application.
The tribunal found that the applicant was seeking review of an MRT-reviewable decision covered by s.338(2) of the Migration Act 1958, and that the prescribed period for the making of a valid application was 21 days starting from the date when the applicant was validly notified of the delegate’s decision. The tribunal further found that an email transmission record on the Department file showed that the decision notice was transmitted by email on 25 October, 2011 and the applicants were validly notified of the delegate’s decision.
The tribunal was satisfied that the delegate’s decision notice complied with s.66(2) of the Act, and the tribunal correctly calculated the last day from lodging the application for review was 15 November, 2011. I accept that the tribunal correctly concluded in those circumstances that, as the application was not received by it until 25 January, 2012 the application for review was not valid and it had no jurisdiction to review the delegate’s decision. The tribunal’s conclusion was based on its finding that the email transmission record on the Department file showed that there was an email transmitted on 25 October, 2011. There was evidence before the tribunal upon which it could base its finding.
Nothing before me demonstrates that the finding by the tribunal of that fact was in error. Of course, if it was the case that it could be demonstrated that that fact was erroneous, it may be that that fact could be characterised as a jurisdictional fact and one in respect of which an error might amount to a jurisdictional error, but there is no evidence that suggests that is so.
The applicant needs to demonstrate that the tribunal has made a jurisdictional error. The findings made by the tribunal were open to it on the evidence before it. I am not satisfied that any of the facts as found by the tribunal were erroneous, let alone erroneous jurisdictional facts, and there is no basis, it seems to me, to suggest that the tribunal has made a jurisdictional error in any other sense.
For all of those reasons, the application will be dismissed.
RECORDED : NOT TRANSCRIBED
The application made by the first applicant and the second applicant has failed. Costs should follow the event.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Jarrett FM.

Date: 28 November 2012