Butt v Minister for Immigration - [2014] FCCA 926

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUTT v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 926

Catchwords:
MIGRATION – Judicial review – cancellation of visa – error in date to apply for review corrected by corrigendum – whether independent and unimpeachable basis for decision – where no useful purpose could be served by remission – Tribunal bound by statute to refuse – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.127, 338(3), 347, 359A, 477, 494A

Migration Regulations 1994, regs.2.45, 2.55, 4.10

Craig v South Australia (1995) 184 CLR 163
MZXHY v Minister for Immigration and Citizenship[2007] FCA 622
MZYMG v Minister for Immigration and Citizenship [2012] FCA 89
NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145
SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415
VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965

Applicant:

TOUQEER ARIF BUTT

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 2053 of 2013

Judgment of:

Judge F. Turner

Hearing date:

23 April 2014

Date of Last Submission:

23 April 2014

Delivered at:

Melbourne

Delivered on:

23 April 2014

REPRESENTATION

The Applicant appeared In Person

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application for judicial review filed 27 November 2013 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,800.00.
All extant applications are dismissed and the matter is removed from the list of pending cases.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2053 of 2013

TOUQEER ARIF BUTT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore & Revised)

This is an application for judicial review of a decision of the Migration Review Tribunal (the “Tribunal”) dated 14 November 2013 (Court Book “CB” p.67).
A delegate to the Minister decided on 20 September 2013 to cancel the applicant’s Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa (CB p.35). The applicant applied to the Tribunal to review that decision (CB p.40). The Tribunal found that the application for review had not been made within the prescribed period.
The Tribunal sent the applicant’s migration agent an Invitation to Comment on Validity of Application for Review by letter dated 18 October 2013 (CB p.59). That invitation was sent pursuant to s.359A of the Migration Act 1958 (the “Act”). The letter gave particulars of information the Tribunal considered might be the reason to refuse the application for review. The applicant was invited to make any comments within 14 days of receipt of the invitation.
The applicant sent a written response dated 31 October 2013 (CB p.61). The Tribunal considered that response (CB p.73 [5]). The Court notes that the written submissions are referred to in the Tribunal’s decision as being on 4 November 2013. The Court assumes that they are the submissions dated 31 October 2013 (CB p.61).
The application for judicial review contains the following grounds.
(1)S.477, Judicial review can be lodged within 35 days after tribunal review has been finalised
(2)I am not happy with tribunal decision, applying for judicial review for legitimate decision
(3)I do have exceptional circumstances beyond the MRT application lodgement previously
Ground 1 is a nonsense. It says that “S.477, Judicial review can be lodged within 35 days after tribunal review has been finalised”. The decision of the Tribunal is dated 14 November 2013. The application for judicial review was made on 27 November 2013, which was within the 35 day time specified in s.477 of the Act. An extension of time is not required. Ground 1 is dismissed.
Examining the Tribunal’s decision, the Court finds the Tribunal rejected the applicant’s application to review the decision of the delegate because, pursuant to s.347(1)(b) of the Act and reg.4.10 of the Migration Regulations 1994 (the “Regulations”), the Tribunal found that an application for review had to be made within 21 days after the applicant was notified of the delegate’s decision [reg.4.10(1)(a)].
The Tribunal found that the applicant was notified of the decision of the delegate by registered post, dated 20 September 2013, and sent by email on the dame day. (CB p.25). CB p.24 shows the registered post stamp and the email of the same date is set out at CB p.25.
Notification of the delegate’s decision was required to be sent in the prescribed way, which includes by email and pre-paid post. The Court refers to ss.127 and 494A of the Act and regs.2.45 and 2.55 of the Regulations.
The Court accepts the written submissions for the first respondent filed 16 April 2014 at [8] that:
“By the combined operation of ss 127(1), 494A(1), and 494C(5) of the Act, the letter (sic email) notifying the Applicant of the delegate’s decision was taken to have been received by him at the end of the day… on which the document is transmitted”.
A letter was sent by registered post and is deemed to have been received seven working days after the date of the document; that date being 20 September 2013 (CB p.24).
The application for review was received by the Tribunal on 3 October 2013 (CB p.40). At the bottom of that page it shows an email print of receipt of 3 October 2013 at 6.56pm.
The email to the applicant on 20 September 2013 is deemed to have been received by him on 20 September 2013.
The decision of the Tribunal stated that the period in which the review application could be made ended on 11 October 2013. That date was a mistake and was corrected by the corrigendum signed on 2 December 2013 to be 1 October 2013 (CB p.71).
The Court accepts the written submissions of the first respondent that the Tribunal erred in stating that 21 days was the relevant prescribed time period for a review of the decision of the delegate to cancel a visa. The Court accepts that the relevant prescribed time was seven working days after the applicant was deemed to have been notified of the delegate’s decision to cancel the visa. The court refers to ss.338(3) and 347(1)(b)(i) of the Act and reg.4.10(1)(b). Seven working days from 21 September 2013 expired on 1 October 2013. The Court finds that the prescribed period ended on 1 October 2013. That is what the corrigendum stated (CB p.71)
The application to the Tribunal was received by it on 3 October 2013 and was therefore outside the prescribed period. The Tribunal concluded the application for review was not made in accordance with the legislation and it therefore had no jurisdiction. The Court finds that the Tribunal did not err in law.
The date of 11 October 2013 was inserted in the decision by error and corrected to 1 October 2013 by the corrigendum signed 2 December 2013.
In the context of a decision by the Tribunal, a jurisdictional error is referred to in Craig v South Australia (1995) 184 CLR 163 at p.179 as follows:
“… an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.”
The Court finds that here the correct question is whether the application was lodged after 1 October 2013. The Tribunal did not reach a mistaken conclusion as the application for review was received on 3 October 2013, which was outside the prescribed period.
The Court does not find a jurisdictional error, only a temporary mistake of fact that was corrected.
Where there is an independent and unimpeachable basis for the decision, it is appropriate not to remit the matter for reconsideration, because of an error elsewhere. This is the effect of the decision in VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33].
The Court refers to the decision of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [29]:
“The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operation of s 424A, they cannot overcome the Tribunal’s finding that their claims lacked the requisite Convention nexus. The appellants’ case, like Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board[1], cited in Aala, was one in which “irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse”[2]. In this regard, the references that were made in the course of argument to the “unbundling” of a Tribunal’s reasons into “impeachable” and “unimpeachable” parts were more likely to mislead than to assist. While there may well be cases in which a tribunal’s breach of s 424A affects its findings about the absence of a Convention nexus, this was not such a case.”
[1] [1994] 1 SCR 202 at 228.
[2] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 109 [58].
As stated by Kirby J in SZBYR at [88]-[89]:
“In effect, the discretion allows the reviewing court to say: The case is clear. A sound basis for the challenged decision has been established. Even if a postulated error has occurred in complying with s 424A and could be proved, any such error is immaterial because it could not undermine the essential legal basis that sustains the decision. In that event, to divert the court’s time and resources into examining a supposed technical breach is not a proper use of its energies. Nor is it required by the justice of the case.
When such conclusions are reached, the reviewing court is entitled to, and should, reject the application in the exercise of its discretion. It should leave analysis of suggested technical infractions to a case where the result of such analysis might influence the outcome. This was not such a case.”
Quoting from NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199 at [11]-[12]:
“… ‘relief under s 75(v) of the Constitution is, like prerogative relief generally, discretionary’: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [33]; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441 at [90].
As was said of the writ of mandamus (which is the principal relief sought in this matter) in The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. [1949] HCA 33; (1949) 78 CLR 389 at 400:
‘the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court’s discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.’ (emphasis added)
See generally Aronson, Dyer and Groves, Judicial Review of Administrative Action, 736ff (3rd ed, 2004).
The Court refers to SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at [122] by Tracey and Foster JJ and applied in MZYMG v Minister for Immigration and Citizenship [2012] FCA 89 at [28]:
“Even if there was some error in the Tribunal’s application of s 91S, the relocation findings made by the Tribunal provide an alternative and independent basis for affirming the delegate’s decision.”
The Court finds that here, the application to the Tribunal was made outside the prescribed period as corrected by the Corrigendum. The present case is a case in which no useful result would ensue from the grant of the relief desired by the applicant. On review, the Tribunal would be required by the law to decide that the application was made to it outside the prescribed period. The Tribunal was bound by the governing statute to refuse the application. (The court refers to Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at p.109 [58]).
If the Court finds that the error in the date is immaterial, it cannot undermine the essential legal basis that sustains the decision. The court refers again to SZBYR (supra) at [88] to [89]. The application for review was required to be made by 1 October 2013.

Ground Two

Considering ground 2, the Court has not found a jurisdictional error. Ground 2 is dismissed.

Ground Three

Ground 3 alleges “exceptional circumstances beyond the MRT application... previously”.
Exceptional circumstances are not relevant to whether the application to the Tribunal is made outside the prescribed period.
The applicant is confined to material put before the Tribunal: SZJMG v Minister for Immigration and Citizenship [2008] FCA 1145 and MZXHY v Minister for Immigration and Citizenship[2007] FCA 622. The Court cannot engage in judicial review by reference to the matters in ground 3.
The Court finds that the application for judicial review does not have merit. If remitted to the Tribunal, the Tribunal would be required by law to decide that the application for review was made outside the prescribed period.
The application for judicial review is dismissed

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge F. Turner

Associate:

Date: 8 May 2014