Chen v Minister for Immigration - [2008] FMCA 1661

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHEN v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1661

MIGRATION – Visa – Student (Temporary)(Class TU) visa – Migration Review Tribunal – application for review of decision of MRT that the applicant’s application for review of the delegate’s decision was ineligible for review – where application was lodged out of time – mistake by migration agent – no reviewable error.

Migration Act 1958 (Cth), ss.66, 347(1)(b)(i), 494B, 494C, 494D
Migration Regulations 1994 (Cth), reg.2.16, 4.10(1)(a)

Applicant:

JIA KAI CHEN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2516 of 2008

Judgment of:

Scarlett FM

Hearing date:

27 November 2008

Date of Last Submission:

27 November 2008

Delivered at:

Sydney

Delivered on:

27 November 2008

REPRESENTATION

The Applicant:

Appeared in person

Solicitors for the Applicant:

Not legally represented

Appearance for the Respondents:

Mr Thorpe

Solicitors for the Respondents:

Clayton Utz

ORDERS

The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,000.00.
A copy of this decision is to be forwarded to the Migration Agents Registration Authority.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2516 of 2008

JIA KAI CHEN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Application

The applicant in these proceedings asks the Court to review a decision of the Migration Review Tribunal. The Tribunal, in a decision signed on 10^th September 2008 and forwarded to the applicant's migration agent that same day, held that it did not have jurisdiction in that matter.
As will be seen, it is clear that the applicant has not been well served by his migration agent. The problem that arises is that the application for review of the delegate's decision was submitted to the Tribunal out of time.
The applicant in his application seeks two substantive orders:
1. An order to direct the Minister of Immigration and Citizenship to make a decision that I am entitled to apply for MRT review.
2. An order to direct the Migration review tribunal to commence the review proceeding of my application after taking full consideration of all my circumstances.
The first order, as I have explained to the applicant, is misconceived. The Court does not have the power to make such an order directed to the Minister nor does the Minister have the power to make a decision in those terms. However, I will proceed with the application on the basis of the applicant's second order that he seeks.
The grounds of the applicant's application are set out in his affidavit which was sworn or affirmed on 16^th September 2008. He claims that the letter he received from the Department of Immigration and Citizenship which was dated 23^rd June 2008 informed him that he held a subclass 010 BVA-Judicial Review visa that was valid until 30^th July 2008. He claims that the term "judicial review visa" in the letter from the Department was a technical error as it was not applicable at the time of decision. It confused judicial review with MRT review as the normal review body should have been MRT at that time.

The applicant applied to the Migration Review Tribunal on

25^th July 2008
in the belief that the deadline provided by the Department's letter was 30^th July 2008. The applicant claimed that he was not properly notified by the Department's letter, which mentioned the judicial review visa was valid until 30^th July 2008, while the last paragraph in the letter informed him that the application for review must be lodged with the Migration Review Tribunal. The applicant claims that the Tribunal has not adequately considered his evidence in the letter from the Department when making a decision that his application was ineligible for review by the Tribunal.
The facts, insofar as they are relevant, have been concisely set out in the written outline of submissions prepared by the solicitor for the first respondent minister, Mr Thorpe.
The applicant applied for a student visa on 14^th March 2007.

He authorised a migration agent to receive communications on his behalf. That agent is Ms Xiaoxia Li of a company entitled Sunnie Consultancy Australia Pty Limited, Suite 503, 431-439 Sussex Street, Sydney.
On 23^rd June 2008 a delegate of the Minister refused to grant the applicant a student visa. The letter notifying the applicant of that decision is the letter which the applicant claims has caused all the problems. The text of the letter says:
After assessment against the relevant migration legislation, I have decided to refuse the grant of a visa to the abovementioned applicant.
The reasons for the decision are set out in the attached decision record.
The applicant is entitled to apply for a review of this decision. If the applicant decides to lodge a review application, they must do so within 21 calendar days after you receive this letter. You are taken to have received it 7 working days after the date of this letter.
Please note that this time-limited review period is prescribed in law and the application for review cannot be accepted after that date. The applicant must be in Australia at the time of lodging an application for review. The applicant currently holds a subclass 010 BVA-Judicial Review visa that is valid until 30 July 2008.
If the applicant holds a bridging visa that has been granted to them in association with their application, and commence review proceedings within the time allowed, they will continue to hold that bridging visa while their application for review is under consideration.
Applications for review must be lodged with the Migration Review Tribunal (MRT). The enclosed leaflet provides information about the review process, how to lodge a review application and how to contact the MRT if you need further information.[1]
That letter was dated 23^rd June 2008.
[1] See Court Book page 8.
The applicant, with the assistance of his migration agent, completed an application for review addressed to the Migration Review Tribunal. The application was received by the Tribunal by post on 25^th July 2008. On 26^th August 2008 the Tribunal wrote to the applicant's migration agent in a letter entitled Invitation to Comment and Provide Further Information on Eligibility Issues. The letter told the applicant that based on an initial assessment the application may be ineligible for review by the Tribunal and invited the applicant to comment in writing on this information:
Section 347 of the Act sets out the requirements for making an eligible application for review, including the requirement to make the application within the prescribed time period.
According to Regulation 4.10, you were required to make the application for review within 21 calendar days of the date that the Department notified the visa applicant of its decision.

The Department made its decision on 23 June 2008 and is taken to have notified the visa applicant of the decision on 2 July 2008. As the Department's letter was posted to an address within Australia, this date is 7 working days after the date of the Department's notification letter. This means that the last day you could have made the application for review was 23 July 2008. You made the application for review on 25 July 2008.
Your application for review may not be eligible because the application was not made to the Tribunal within the prescribed time period.[2]
[2] See Court Book page 34.
The applicant's migration agent replied to the Tribunal by means of a letter dated that same day, 26^th August 2008, and sent by fax to the Tribunal. The text of the letter says:
Thanks for the fax in relation of Jiakai's application for review.
The application for review lodged on July 25^th 2008 was a misunderstanding in reading the letters from DIAC, which informed the review visa was valid until 30 July 2008.
The DIAC letter was read, and the deadline to MRT was mistakenly regarded as 30 July 2008, therefore, the date was not carefully counted again by the applicant and us after reading the DIAC letter.
It would be grateful if MRT could consider it as a mistake made by misunderstanding the DIAC letter and grant JiaKai the application for review to the tribunal.
Should you need further information, please feel free to contact me on telephone 02-92810268 or fax 02-92810718.[3]
[3] See Court Book page 40.
The Tribunal made its decision on 10^th December 2008 finding that it did not have jurisdiction. In the decision record the Tribunal identified the question of whether the Tribunal has jurisdiction and said:
Whether it does depends on whether the application lodged on 25 July 2008 is an application properly made under s.347 of the Act for review of the delegate's decision.
The Tribunal formed the preliminary view that it did not have jurisdiction because the application for review was received outside the prescribed time limit.[4]
[4] See Court Book page 45.
The Tribunal considered s.347(1)(b)(i) of the Act and reg.4.10(1)(a).

It made the point that there was no provision for an extension of time. The Tribunal considered the provisions that relate to notification of a decision which are contained in s.66 494B, 494C and 494D of the Act and reg.2.16 of the Regulations.
The Tribunal noted that sub-s.66(1) requires that when the Minister refuses to grant a visa the Minister must notify the applicant of the decision in the prescribed way. Regulation 2.16 provides that for the purpose of s.66(1) the Minister must notify an applicant of a decision to refuse the grant of visa by one of the methods specified in s.494B. One of the methods specified in s.494B consists of the Minister despatching the document within three working days of the date of the document by prepaid post or other prepaid means to the last address for service or the last residential or business address provided to the Minister by the recipient for the purpose of receiving documents, s.494B(4). If a document is given to a person by this method and the document was despatched from a place in Australia to an address in Australia, the person is taken to have received the document seven working days (in the place of the address) after the date of the document, s.494C(4)(a). Therefore, if a notice of a decision to refuse to grant a visa was sent in accordance with s.494B, the prescribed period within which a review application must be lodged with the Tribunal commences seven working days after the date of the notice.
The Tribunal was satisfied that the contents of the delegate's decision notice complied with the requirements of sub-s.66(2). It found that the applicant gave the Minister written notice under s.494D of the name and address of an authorised recipient, in this case the migration agent, and the decision notice dated 23^rd June 2008 was sent via prepaid post on 24^th June 2008 from a place in Australia to the applicant's authorised recipient at an address in Australia. The Tribunal obtained evidence to confirm the decision notification was despatched within three working days and was satisfied that the item was sent by registered post on

24^th June 2008
. Thus, the decision notification was despatched within three working days of the date of the letter which is within the required timeframe in accordance with s.494B(4). Thus, the applicant was taken to have received the notice on 2^nd July 2008, being seven working days after the date of the notice.
The Tribunal then considered the submissions from the applicant's migration agent on 26^th August 2008 and quoted the relevant sentences from that letter. The Tribunal went on to find:
The Tribunal finds that the applicant was properly notified of the delegate's decision and is taken to have been notified on 2 July 2008. Therefore, the prescribed period of 21 days within which the application for review could be lodged ended on 23 July 2008. The Tribunal has had regard to the reasons for the delay in lodging the application for review as set out in the submissions received 26 August 2008 but it has no discretion to extend this period.
The application for review was not received by the Tribunal until 25 July 2008, after the prescribed period had expired.
As the application for review was received by the Tribunal outside the mandatory time limit, it is not a valid application and the Tribunal has no jurisdiction in this matter.[5]
[5] See Court Book page 49.
The applicant claims that there is an error in the notification letter dated 23^rd June 2008 and refers to the paragraph of the letter that said that he held a subclass 010 BVA-Judicial Review visa that is valid until 30^th July 2008. He claims that the term "judicial review visa" in the Department's letter was a technical error as it was not applicable at the time of decision. It confused judicial review with MRT review as the normal review body should have been MRT at that time. He said that he applied for MRT review on 25^th July 2008 considering the deadline provided by the Department's letter was 30^th July 2008. He claims that he was not properly notified by the Department's letter which mentioned the judicial review visa valid until 30^th July 2008, while the last paragraph of the letter informed him that the application for review must be lodged with the Migration Review Tribunal.
Unfortunately, this ground is misconceived. It is surprising to say the least that the applicant who had the services of a migration agent should have ended up in this predicament. It is not hard to feel some empathy for the applicant who has found that his application for review of a decision is two days out of time.
The trouble is that the notification letter of 23^rd June 2008 has been misread. The third paragraph of that letter says:
The applicant is entitled to apply for a review of this decision. If the applicant decides to lodge a review application, they must do so within 21 calendar days after you receive this letter. You are taken to have received it 7 working days after the date of this letter.[6]
[6] See Court Book page 8.
Leaving aside the ungrammatical nature of the wording, it is that paragraph that sets out the time limit within which an applicant must apply for review. The letter said that the applicant must apply within 21 calendar days after receipt of the letter but is taken to have received the letter seven working days after its date. It is fair to say that for a person who does not understand the law and whose first language is not English, which is the case of this applicant; these two different methods of calculation may be confusing. A registered migration agent should have no excuse.
Because the letter was despatched within three days of its date, the applicant was taken to have received it seven working days later.

The letter was dated 23^rd June, seven working days later is quite correctly Wednesday 2^nd July. What the applicant then had was 21 calendar days, not working days, to lodge his application for review with the Migration Review Tribunal. Twenty-one calendar days from Wednesday 2^nd July is Wednesday 23^rd July. The Tribunal did not receive the application until Friday 25^th July. Clearly, the application was out of time.
The letter from the Department notifying the applicant made it clear that the review period was time limited and the application for review cannot be accepted after that date. Obviously the applicant had to be in Australia at the time of lodging an application for review.

The applicant's submission, which seems to have emanated from the migration agent, is that the following sentence is confusing:
The applicant currently holds a subclass 010 BVA-Judicial Review visa that is valid until 30 July 2008.[7]
[7] See Court Book page 8.
That sentence does not set out the time within which an application for review must be lodged. It sets out that the applicant holds a particular class of visa named a subclass 010 BVA-Judicial Review visa and that the visa is valid until 30^th July 2008. The next paragraph makes that quite clear because it says:
If the applicant holds a bridging visa that has been granted to them in association with their application, and commenced review proceedings within the time allowed, they will continue to hold that bridging visa while their application for review is under consideration.[8]
[8] See Court Book page 8.
That explanation is perfectly logical. Because the applicant had been refused a visa, which is the (Class TU) visa for which he had applied, the Department had granted him a specific form of bridging visa to cover him during the review period. It was specified to apply at a date after the time within which he had to make an application for review of the Migration Review Tribunal. The purpose of the visa is to allow the applicant to remain in Australia lawfully whilst he decides whether or not he wished to apply to the Migration Review Tribunal for a review. But he had to do so within the time provided, which was 21 calendar days after he was taken to have received the letter, which was 23^rd July. If he did not apply for review within that time, the visa then gave him a further seven days until 30^th July in which to make arrangements to leave Australia. It is a bridging visa. It is to cover a person for a temporary period of time until one or other event happens.
As the letter made clear, if the applicant did apply to the Migration Review Tribunal then the visa would be extended and the applicant would continue to hold that visa whilst the proceedings in the Migration Review Tribunal were pending. If an applicant was unsuccessful before the Tribunal, the applicant would then have the right to seek judicial review from the Federal Magistrates Court and would continue to hold the visa whilst judicial review proceedings were taking place. If the applicant were to be unsuccessful before the Federal Magistrates Court and lodged an appeal to the Full Court of the Federal Court, then the applicant would continue to hold the visa in order to remain in Australia lawfully whilst those proceedings were carried out. It is not hard to see why the visa would be referred to as a judicial review visa even though the initial stage in the review process was not judicial review but application to the Migration Review Tribunal.
The fact is, as Mr Thorpe for the Minister pointed out, that the applicant's migration agent's letter of 26^th August 2008 frankly conceded that the notification letter from the Department had been misunderstood. The agent admitted:
The application for review lodged on July 25^th 2008 was a misunderstanding in reading the letters from DIAC, which informed the review visa was valid until 30 July 2008.
The DIAC letter was read and the deadline to MRT was mistakenly regarded as 30 July 2008, therefore the date was not carefully counted again by the applicant and us after reading the DIAC letter.[9]
[9] See Court Book page 48.
This frank admission is in its terms astonishing. It is not surprising that the applicant was confused. English is not his first language. He is not a lawyer or a migration agent nor does he profess to be. But at all times he had a registered migration agent acting for him. Calculation of a time limit for lodging an application for review of a delegate's decision to the Migration Review Tribunal is a basic part of a migration agent's job. The methods of calculation with the working days and the calendar days may be confusing to an applicant. They should not be confusing to a registered migration agent. They are paid to know this, which is not an arcane or esoteric piece of law. It is basic procedure.

It is, as I have said, astonishing that an agent could make an error of this nature and raises a very serious consideration of negligence.

It is such a basic error that, in my view, it calls into question the migration agent's capacity to provide migration advice to applicants in the nature of this young man who has, in my view, been extremely poorly served. It is for that reason that I will be forwarding a copy of my reasons for decision in this matter to the Migration Agents Registration Authority.
It is unfortunately true that the Tribunal has no power, even in circumstances such as these, to extend the period of time. It is a mandatory time limit. It follows that no jurisdictional error has been made out. As there is no jurisdictional error, then accordingly the application will be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 8 December 2008