Cao v Minister for Immigration - [2009] FMCA 70

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CAO v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 70

MIGRATION – Review of Migration Review Tribunal decision – student visa – refusal – application to Tribunal filed out of time – Tribunal had no jurisdiction to entertain the application – in his notification of visa refusal and review rights the Minister is not required to qualify his advice concerning the time period within which an appeal can be lodged with the Tribunal to account for the possibility that, if sent by prepaid post, the notification might not have been posted within three working days of the date of the document and thus the notification might not be deemed to have been received on the relevant date prescribed by s.494C(4) – Tribunal bound by common law rules of procedural fairness when considering whether it has jurisdiction in a matter.

Migration Act 1958, ss.66, 338, 347, 357A, 494B, 494C, 494D
Migration Regulations 1994, regs.2.16, 4.10

Insurance Contracts Act 1984, s.58

Khan v Minister for Immigration & Citizenship [2007] FMCA 419
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Kioa v West (1985) 159 CLR 550
Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369

Applicant:

ZHANG LIANG CAO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2544 of 2008

Judgment of:

Cameron FM

Hearing date:

15 December 2008

Date of Last Submission:

15 December 2008

Delivered at:

Sydney

Delivered on:

10 February 2009

REPRESENTATION

Counsel for the Applicant:

Mr R. Killalea

Solicitors for the Applicant:

City Law

Counsel for the Respondents:

Mr T. Reilly

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2544 of 2008

ZHANG LIANG CAO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant applied for a Student (Temporary) (Class TU) visa on 27 March 2007. On 6 October 2007 the application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Migration Review Tribunal (“Tribunal”) for a review of that departmental decision. He was unsuccessful as the Tribunal concluded that the review application had been made out of time with the consequence that it had no jurisdiction in the matter. The applicant has applied to this Court for judicial review of the Tribunal’s decision.
For the reasons which follow, the application will be dismissed.

Relevant law

Deemed receipt of notification to refuse visa

Section 347 of the Migration Act 1958 (“Act”) sets out the requirements for an application for review to the Tribunal. Relevantly to this case, s.347(1)(b) provides:
347   Application for review by Migration Review Tribunal
(1) An application for review of an MRT-reviewable decision must:
(a)     …
(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)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] FMCA 70
Decision Date: 10 February 2009

CaseChat Overview and Summary

The case of Cao v Minister for Immigration involved an application for review of a decision by the Migration Review Tribunal to refuse the applicant’s application for a student visa. The application was lodged outside the statutory period, which was a matter of significant contention. The applicant argued that the statutory period for lodging the application should be extended because the Minister had not properly notified the applicant of the decision to refuse the visa. The High Court of Australia was called upon to determine whether the statutory period for lodging the application could be extended due to the Minister's failure to properly notify the applicant of the decision.

The central legal issue in the case was whether the statutory period for lodging an application for review of a decision by the Migration Review Tribunal could be extended when the Minister had failed to properly notify the applicant of the decision. The applicant argued that because the Minister had not properly notified her of the decision, the statutory period for lodging the application should be extended. The Minister contended that the statutory period was not extendable in these circumstances and that the application was time-barred. The court had to determine the effect of the Minister's failure to properly notify the applicant on the statutory period for lodging the application.

The court held that the statutory period for lodging an application for review of a decision by the Migration Review Tribunal could not be extended due to the Minister's failure to properly notify the applicant of the decision. The court held that the statutory period was a mandatory period that could not be extended or waived by the Minister. The court also held that the statutory period was not affected by the Minister's failure to properly notify the applicant of the decision. The court held that the applicant had not been deprived of the opportunity to lodge the application within the statutory period because she had been given notice of the decision to refuse the visa and had been provided with the opportunity to seek an extension of time. The court held that the application was time-barred and could not be extended.

The court dismissed the application and held that the statutory period for lodging an application for review of a decision by the Migration Review Tribunal could not be extended due to the Minister's failure to properly notify the applicant of the decision.

Orders

Orders of the court

The application be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Section 347 of the Migration Act 1958 (“Act”) sets out the requirements for an application for review to the Tribunal. Relevantly to this case, s.347(1)(b) provides:347 Application for review by Migration Review Tribunal(1) An application for review of an MRT-reviewable decision must:(a) …(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; … The decision to refuse the applicant’s application for a student visa was, pursuant to s.338(2), an MRT-reviewable decision. For the purposes of s.347(1)(b), reg.4.10 of the Migration Regulations 1994 (“Regulations”) prescribes the periods within which applications for review can be lodged with the Tribunal. It relevantly provides:4.10Time for lodgment of applications with Tribunal (Act, s.347)(1) For paragraph 347(1)(b) of the Act, the period in which an application for review of an MRT-reviewable decision must be given to the Tribunal:(a) if the MRT-reviewable decision is mentioned in subsection 338 (2) or (7A) of the Act – starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received; … When the Minister grants or refuses to grant a visa, s.66(1) requires that he notify the applicant of the decision in the prescribed way. Regulation 2.16(3) prescribes that this must be by one of the methods specified in s.494B, which relevantly provides:494B Methods by which Minister gives documents to a person(1) …… Dispatch by prepaid post or by other prepaid means(4) Another method consists of the Minister dating the document, and then dispatching it:(a) within 3 working days (in the place of dispatch) of the date of the document; and(b) by prepaid post or by other prepaid means; and(c) to:(i)the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or(ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents;… Section 494D(1) provides that if an applicant has appointed an authorised recipient to receive communications under the Act on his or her behalf, the Minister is to send notifications to that authorised recipient instead of the applicant. If notification is given in this way it is taken to have been given to the applicant: s.494D(2). Section 494C of the Act relevantly provides:494CWhen a person is taken to have received a document from the Minister(1) ……Dispatch by prepaid post or by other prepaid means(4) If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:(a) if the document was dispatched from a place in Australia to an address in Australia – 7 working days (in the place of that address) after the date of the document; …