Calimoso v Minister for Immigration
[2016] FCCA 1492
•27 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CALIMOSO v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1492 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – whether the application was made in time – whether the Tribunal misconstrued the relevant legislation – no jurisdictional error identified –application dismissed. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.36. Migration Act 1958 (Cth), ss.4, 347, 476, 494B, 494C, 494D. Migration Regulations 1994, reg.4.10. |
| Applicant: | BRYLE VINCENT CASIS CALIMOSO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 22 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 27 May 2016 |
| Date of Last Submission: | 27 May 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 27 May 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Mitchell |
| Solicitors for the First Respondent: | Ms Milutinovic |
ORDERS
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the amount of $5,800.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
ADG 22 of 2016
| BRYLE VINCENT CASIS CALIMOSO |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 22 January 2015 affirming a decision of the delegate not to grant the applicant a TU572 visa.
On 17 February 2015, the applicant lodged an application for a UK Partner visa and temporary NBS partner residence visa. The applicant arrived in Australia on 17 September 2008 on a subclass TU572 visa which ceased on 9 February 2011. The applicant’s last substantive visa held was a subclass TU572 visa at the time of the decision of the delegate and that visa ceased on 30 June 2014. The applicant applied for a TU572 visa on 17.07.2014 and his application was refused by the Department on 25 November 2014. The applicant appealed that decision to the Migration Review Tribunal on 16 December 2014 and that appeal was unsuccessful and dismissed on 22 January 2015. The current visa application was then lodged on 17 February 2015. On 23 October 2015, the delegate dismissed the application.
On 20 November 2015, the Tribunal wrote to the applicant identifying a concern that the application for review was not valid. The letter identified the time 21 calendar days from the day on which the applicant was taken to be notified of the primary decision. The letter noted the primary decision was emailed to the applicant on 23 October 2015 and, on that basis, the letter identified that 23 October 2015 was the date on which the applicant was taken to have been notified. The Tribunal then identified in the letter the last day for lodging an application for a review was 13 November 2015. The letter indicated that, as the application was not received until 16 November 2015, it appeared out of time.
The Tribunal received a response to that letter dated 3 December 2015. The Tribunal referred to s.347(1)(b) of the Migration Act 1958 (Cth) and reg.4.10 of the Migration Regulations 1994 and identified that the application for a review of the decision had to be made within 21 days after the date that the applicant was notified of the decision in accordance with the statutory requirements. The Tribunal identified that, on the material before the Tribunal, the applicant was notified on 23 October 2015 by email. The Tribunal found that the last day on which a review application could be lodged was 13 November 2015. The Tribunal noted that it had written to the applicant identifying the problem in relation to the application and identified the response.
The Tribunal correctly found that the applicant was taken to have been notified by email on 23 October 2015. The Tribunal correctly found that the time for review expired on 13 November 2015. As the application was not received until 16 November 2015, the Tribunal correctly found that it had no jurisdiction.
Counsel for the applicant, Mr Mitchell, relied upon an application that identified the following ground:
1. The Administrative Appeals Tribunal (“The Tribunal”) erred in its application of section 494C(5) of the Migration Act 1958 (“the Act”) in reaching the conclusion that the applicant was taken to have been notified of the decision on 23 October 2015, which conclusion was the basis of the Tribunal's determination that the last day within which the Applicant was to lodge the review application was Friday, 13 November 2015, and accordingly its ultimate conclusion that it did not have jurisdiction in this matter.
Particulars
a. The decision by a delegate of the Minister for Immigration dated Friday, 23 October 2015 was sent by email to the Applicant on that day.
b. The review application was lodged with the Tribunal on Monday, 16 November 2015.
c. By its decision dated 18 December 2015 the Tribunal correctly observed that pursuant to s347(1)(b) of the Migration Act 1958 (“the Act”), and r.4.10 of the Migration Regulations 1994 (“the Regulations”) the application for review of the decision had to be made within 21 days after the applicant was notified of the decision.
d. At paragraph [9] of its reasons the Tribunal observed:
Notwithstanding the applicant's claim that he only became aware of the Department's refusal of his visas on 28 October 2015, in accordance with s.494C(5) of the Act, the Tribunal finds that the applicant is taken to have been notified of the Department's decision by email on 23 October 2015. Therefor the prescribed period within which the review application could be made ended on 13 November 2015.
e. Section 494C(5) of the Act relevantly provides that “...the person is taken to have received the document at the end of the day on which the document is transmitted”.
f. On the proper application of section 494C(5) the relevant date that would be prevailing at the point in time when the Applicant is taken to have received the document is necessarily Saturday, 24 October 2015, and not Friday, 23 October 2015.
g. Accordingly pursuant to s347(1)(b) of the Act, and r.4.10 of the Regulations, and in light of section 36 of the Acts Interpretation Act 1901 the time within which the Applicant was to lodge the application for review ended on Monday, 16 November 2015 and the application was accordingly lodged within time.
Mr Mitchell sought to advance the construction that s.494C(5) should be read as meaning “the following day”. I accept that if Mr Mitchell’s construction were correct the applicant would then, by reason of the Acts Interpretation Act 1901 (Cth), have had adequate time for the purpose of lodging the application. Mr Mitchell sought to argue that the literal meaning of the words “at the end of the day” meant after the day, in effect, was completed, and that accordingly, on a literal construction of s.494C(5), notification by fax, email or electronic means under s.494C(5), in effect, that notification took effect the following day.
Mr Mitchell submitted that this was a provision the subject of potential ambiguity and, accordingly, a beneficial construction should be adopted. It was submitted that this gave rise to a meaning whereby the provision is construed as effecting transmission of the relevant document to the person on the following day.
Section 494C is an important provision in seeking to identify the time at which a person is taken to have received particular documents. I take into account the object of the Act in s.4 and the scheme of the Act in relation to part 2 and the granting of visas and the provisions of part 5 in relation to reviewable decisions, as well as the context of part 9 and the work intended to be done by ss.494B, 494C and 494D. The plain and ordinary meaning of the words used in s.494C is that the fax, email or other electronic means of communication of a document within a method identified in s.494B(5) is taken to have been received by the person at the end of the day on which it is transmitted. That makes plain that it was received on that day. There is no ambiguity in relation to the provision. There is no scope for a construction that the language is capable of meaning “the following day”. No jurisdictional error of the kind identified in ground 1 of the application was made out. The application is dismissed.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 22 June 2016
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