Butt v Minister for Immigration
[2015] FCCA 1236
•14 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BUTT v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1236 |
| Catchwords: MIGRATION – Student via cancelled due to non-compliance – jurisdictional review – Tribunal determined it had no jurisdiction – Tribunals decision is upheld. |
| Legislation: Migration Act 1958 (Cth), ss.52, 127, 147, 338, 347, 348 Migration Regulations 1994 (Cth) Federal Circuit Court Rules 2001 (Cth) |
| Minister for Immigration v Singh (2000) 98 FLR 77 Nemusesco v Minister for Immigration & Anor [2010] FMCA 957 |
| Applicant: | TOUSEEF ASIF BUTT |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1198 of 2014 |
| Judgment of: | Judge Harland |
| Hearing date: | 1 April 2015 |
| Date of Last Submission: | 1 April 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 14 May 2015 |
REPRESENTATION
| The Applicant appeared in person with the assistance of an interpreter |
| Counsel for the Respondents: | Mr McDermott |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed pursuant to rule 16.01 of the Federal Circuit Court Rules 2001 (Cth).
The applicant shall pay the costs of the first respondent fixed at $6,646.00 in accordance with Schedule 1, Part 3, Division 1 of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1198 of 2014
| TOUSEEF ASIF BUTT |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant was granted a student visa on 19 March 2012. On 20 September 2013 the Delegate of the Minister cancelled the applicant’s student visa after it became apparent that the applicant had never started his course and had not complied with the conditions of his visa.
The applicant filed an application to review the Delegate’s decision on 11 April 2014. The Tribunal determined that it did not have jurisdiction to determine the applicant’s review which was out of time.
The gravamen of the applicant’s complaint is that he never received the notice about the cancellation of his visa. He says he found out accidentally some months later. The issue turns on the legislative provisions with respect to notice.
The solicitor advocate for the Minister helpfully outlined the relevant provisions in the Migration Act and Regulations at the hearing. The applicant appeared for himself at the hearing with the assistance of an interpreter.
The time limits in the legislation are strict. Neither the Tribunal nor this Court has power to enlarge the time to make an application for review. The Court must decide whether or not the tribunal was correct in law to find that it had no jurisdiction to determine the applicant’s review application.
On his visa application the applicant gave his address as 7 Baker Street, Sunshine VIC 3020. This appears at page 4 of the court book. Page 7 of the court book is the declaration which forms part of the visa application where the applicant acknowledges that he must immediately advise the Department if he becomes aware of any change in circumstances. As matter of logic, a change of circumstance included a change of address.
During the hearing the applicant claims that he gave his change of address to the college and they advised that they would update the change. The student enrolment form the applicant filled out for the College shows the applicant’s address as 7 Baker Street Sunshine VIC 3020.
Pages 29 to 33 of the Court Book consists of email exchanges between the Department, applicant and the education provider. The education provider confirms that the address the applicant provided them was 7 Baker Street Sunshine VIC 3020.
Section 52(3A) of the Migration Act 1958 (Cth) imposes a general obligation on an applicant to advise the Department of where the applicant intends to live whilst the Visa application is being processed.
Sections 347 and 348 address the requirements with respect to a Migration Review Tribunal reviewable decision.
Section 347 is set out as follows:
(1) An application for review of an MRT‑reviewable decision must:
(a) be made in the approved form; and
(b) be given to the Tribunal within the prescribed period, being a period ending not later than:
(i) if the MRT‑reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—28 days after the notification of the decision; or
(ii) if the MRT‑reviewable decision is covered by subsection 338(5), (6), (7) or (8)—70 days after the notification of the decision; or
(iii) if the MRT‑reviewable decision is covered by subsection 338(9)—the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision; and
(c) be accompanied by the prescribed fee (if any).
Section 348 is set out as follows:
(1) Subject to subsection (2), if an application is properly made under section 347 for review of an MRT‑reviewable decision, the Tribunal must review the decision.
(2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under section 339.
Section 347(1) provides that an application for review must be made in the approved form and given to the Tribunal within the prescribed period. The prescribed period is set out in regulation 2.55(7)(a). When the document is sent within Australia, the time limit is 7 working days after the date of the document.
Section 338 is set out as follows:
(1) A decision is an MRT‑reviewable decision if this section so provides, unless:
(a) the Minister has issued a conclusive certificate under section 339 in relation to the decision; or
(b) the decision is an RRT‑reviewable decision; or
(c) the decision is to refuse to grant, or to cancel, a temporary safe haven visa.
(2) A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non‑citizen a visa is an MRT‑reviewable decision if:
(a) the visa could be granted while the non‑citizen is in the migration zone; and
(b) the non‑citizen made the application for the visa while in the migration zone; and
(c) the decision was not made when the non‑citizen:
(i) was in immigration clearance; or
(ii) had been refused immigration clearance and had not subsequently been immigration cleared; and
(d) where it is a criterion for the grant of the visa that the non‑citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:
(i) the non‑citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or
(ii) an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.
(3) A decision to cancel a visa held by a non‑citizen who is in the migration zone at the time of the cancellation is an MRT‑reviewable decision unless the decision:
(a) is covered by subsection (4); or
(b) is made at a time when the non‑citizen was in immigration clearance; or
(c) was made under section 133A or 133C, subsection 134(1), (3A) or (4) or section 501; or
(d) was made personally by the Minister under section 109 or 116 or subsection 140(2).
(3A) A decision under section 137L not to revoke the cancellation of a non‑citizen’s visa is an MRT‑reviewable decision if the non‑citizen was in the migration zone when the decision was made.
(4) The following decisions are MRT‑reviewable decisions:
(a) a decision to refuse to grant a bridging visa to a non‑citizen who is in immigration detention because of that refusal;
(b) a decision of a delegate of the Minister to cancel a bridging visa held by a non‑citizen who is in immigration detention because of that cancellation.
(5) A decision to refuse to grant a non‑citizen a visa is an MRT‑reviewable decision if:
(a) the visa is a visa that could not be granted while the non‑citizen is in the migration zone; and
(b) the non‑citizen, as required by a criterion for the grant of the visa, was sponsored or nominated by:
(i) an Australian citizen; or
(ii) a company that operates in the migration zone; or
(iii) a partnership that operates in the migration zone; or
(iv) the holder of a permanent visa; or
(v) a New Zealand citizen who holds a special category visa.
(6) A decision to refuse to grant a non‑citizen a visa is an MRT‑reviewable decision if:
(a) the visa is a visa that could not be granted while the non‑citizen is in the migration zone; and
(b) a criterion for the grant of the visa is that the non‑citizen has been an Australian permanent resident; and
(c) a parent, spouse, de facto partner, child, brother or sister of the non‑citizen is an Australian citizen or an Australian permanent resident.
Note: Section 5G may be relevant for determining family relationships for the purposes of this subsection.
(7) A decision to refuse to grant a non‑citizen a visa is an MRT‑reviewable decision if:
(a) the visa is a visa that could not be granted while the non‑citizen is in the migration zone; and
(b) a criterion for the grant of the visa is that the non‑citizen intends to visit an Australian citizen, or an Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the non‑citizen; and
(c) particulars of the relative concerned are included in the application.
Note: Section 5G may be relevant for determining family relationships for the purposes of this subsection.
(7A) A decision to refuse to grant a non‑citizen a permanent visa is an MRT‑reviewable decision if:
(a) the non‑citizen made the application for the visa at a time when the non‑citizen was outside the migration zone; and
(b) the visa is a visa that could be granted while the non‑citizen is either in or outside the migration zone.
(8) A decision, under section 93, as to the assessed score of an applicant for a visa is an MRT‑reviewable decision if:
(a) the visa is a visa that could not be granted while the applicant is in the migration zone; and
(b) the applicant, as required by a criterion for the grant of the visa, was sponsored or nominated by:
(i) an Australian citizen; or
(ii) the holder of a permanent visa; or
(iii) a New Zealand citizen who holds a special category visa; and
(c) the Minister has not refused to grant the visa.
(9) A decision that is prescribed for the purposes of this subsection is an MRT‑reviewable decision.
Section 338 sets out which decisions are MRT reviewable decisions. Relevantly section 338(3) refers to a decision to cancel the visa of a non-citizen who is in the migration zone at the time the visa is cancelled as being an MRT reviewable decision. This then invokes the section 147(1) (b)(i).
Section 127 is set out as follows:
(1) When the Minister decides to cancel a visa, he or she is to notify the visa holder of the decision in the prescribed way.
(2) Notification of a decision to cancel a visa must:
(a) specify the ground for the cancellation; and
(b) state whether the decision is reviewable under Part 5 or 7; and
(c) if the former visa holder has a right to have the decision reviewed under Part 5 or 7—state:
(i) that the decision can be reviewed; and
(ii) the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made.
(3) Failure to give notification of a decision does not affect the validity of the decision.
Section 127(1) states that when the minister cancels a visa the Minister is to notify the visa holder of the decision in the prescribed way. It is then necessary to look at the regulations as the prescribed methods of notification are set out there.
Regulation 2.55(1)(a) is set out as follows:
(1) This regulation applies to:
(a) the giving of a document to a holder or former holder of a visa relating to the proposed cancellation or the cancellation of a visa under the Act
Regulation 2.55(1)(a) deals with how documents are given to the holder of these with respect to proposed cancellation or cancellation of visa under the Migration Act. Subsection 3 sets out the ways in which the Minister must give the documents. In this case, the Minister used the method set out in subsection 3(c) which was to date the document and posted within three working days by prepaid post to the applicant’s last residential address known to the Minister. Subsection 7 states that if the Minister gives a document to a person by sending it by prepaid post that person is taken to have received it if the address is in Australia in seven working days after the date of the document.
The Tribunal referred to the wrong provision in its decision. It referred to section 494C of the Act when the applicable provision is regulation 2.55.
The Tribunal referred to the notice provisions in section 494B(4) (set out in subsection 4). I accept the Minister’s submission that this does not amount to a material error because the wording of the relevant parts of the sections are the same. Consequently this does not amount to a jurisdictional error.
The Department complied with section 119 which deals with notice of a proposed cancellation of a visa. A copy of the notice appears at pages 35 to 43 of the Court Book.
The Department is not obliged to make enquiries as to whether or not a visa holder has changed address. There is not a scenario here where there is evidence that the applicant notified the Department of his change of address and that change was not recorded.
The date calculator appears on page 62 of the Court Book. As the notice was posted on 20 September 2013, the applicant had until 10 October 2013 to lodge a review. The applicant did not lodge his review application until 10 April 2014, some 6 months out of time.
The Full Court of the Federal Court in Minister for Immigration v Singh (2000) 98 FLR 77 at paragraph 86 said:
“The purpose of the provisions under consideration is to provide a scheme to achieve administrative certainty, the manner and time of giving notice of decisions made with respect to visa applications and as to the expiry date for any application to review such decisions. The decision has clearly been taken by the legislators that the objective should override the injustice which may occur because a particular applicant…does not in fact receive that notice in a timely way…or in some cases… at all”.
Nemusesco v Minister for Immigration & Anor [2010] FMCA 957 is also relevant here with respect to procedural fairness. In that case, as is the case here, the applicant was on notice of the critical issue being that the Delegate sent the notice to the last known address of the applicant. The applicant did not meet the time limit provided for in the legislation. The time limit is strict. In these circumstances, the Tribunal was correct to find that it had no jurisdiction.
I dismiss the applicant’s application. As costs follow the event, I will order the applicant to pay the respondent’s costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Harland
Associate:
Date: 14 May 2015
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