Chung v Minister for Immigration
[2006] FMCA 624
•27 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHUNG v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 624 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a student visa on health grounds – applicant failing to receive notification of delegate’s decision in time to apply for merits review – MRT holding late application ineligible – summary dismissal of judicial review application as having no reasonable prospects of success. LAW REFORM – Observations on the unfortunate consequences of review tribunals having no power to extend time limits for the filing of such applications. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958, ss.66, 347, 494B, 494C Migration Regulations 1994 (Cth) |
| Applicant A135/2002 v Minister for Immigration [2003] FCA 708 Applicant A163/2002 v Minister for Immigration & Ors [2003] FCA 677 General Steel Industries Inc v Commission for Railways NSW (1964) 112 CLR 125 Kosi v Minister for Immigration [2003] FMCA 340 Lee v Minister for Immigration [2002] FMCA 279 Murphy v Minister for Immigration [2004] FCA 657 Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476 Re Minister for Immigration; ex parte Miah (2001) 197 ALR 238 SZAXN v Minister for Immigration [2003] FMCA 560 SZAXN v Minister for Immigration [2004] FCA 275 SZBMF v Minister for Immigration [2005] FMCA 925 SZBWD v Minister for Immigration [2006] FCA 253 SZCTH v Minister for Immigration (No 2) [2004] FMCA 284 SZIOU v Minister for Immigration [2006] FMCA 602 Vetter v Lake Macquarie Council (2001) 202 CLR 439 Webster v Lampard (1993) 177 CLR 598 Xie v Immigration Deptartment [1999] FCA 365 Xie v Minister for Immigration [2005] FCAFC 172 |
| Applicant: | MAN CHI CHRISTINE CHUNG |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG652 of 2006 |
| Judgment of: | Driver FM |
| Hearing date: | 27 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 27 April 2006 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms T Quinn Phillips Fox |
INTERLOCUTORY ORDERS
The first respondent’s motion is upheld and the application is dismissed pursuant to rule 13.10(a) of the Federal Magistrate Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,500.
CORRECTED JUDGMENT
The word "costs" has been inserted after the word "Minister's" in line 2 of paragraph 10.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG652 of 2006
| MAN CHI CHRISTINE CHUNG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
MIGRATION REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a motion by the respondent Minister, notice of which was given on 6 April 2006. The Minister seeks the summary dismissal of a judicial review application pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) on the basis that no reasonable cause of action is disclosed, the proceeding or claim is frivolous or vexatious and the proceeding or claim is an abuse of the process of the Court.
The motion is supported by an affidavit of Therese Quinn made on 4 April 2006 and filed on 6 April 2006. The Minister has also prepared written submissions which were filed on 24 April 2006. I also have before me a court book filed on 5 January 2006, the judicial review application filed on 30 November 2005 and an affidavit by the applicant, Ms Chung, filed on 11 April 2006.
The background is summarised in the Minister's written submissions. I adopt as background paragraphs 2 to 6 of those written submissions:
The applicant applied for a student (subclass 573) visa on 24 June 2005. In her application form[1], she revealed that she has breast cancer and that she would require further cancer treatment once in Australia.
[1] court book, pages 14-15
The applicant's application was refused because the applicant failed to meet amongst others, the health criteria[2]. A certificate from the CMO to this effect, is on file[3].
The applicant applied to the Migration Review Tribunal (“the MRT”) for review of this decision on 19 September 2005[4]. On 21 September 2005, the MRT invited the applicant to comment and provide further information in writing on the eligibility on the application[5]. The applicant responded in writing on 28 September 2005 and stated she did not lodge the application in time because she shared a mailbox with two friends at the University of Canberra and that one of her friends accidentally took the letter and did not give it to her until 16 September 2005[6].
The MRT found that:
a)The delegate refused the application on 12 August 2005. The refusal notification letter was sent to the applicant's nominated address in accordance with ss.66, 494B of the Migration Act 1958 (Cth) (“the Migration Act”) and regulation 2.16(3) of the Migration Regulations 1994 (Cth) (“the Regulations”).
b)As the decision notification was posted to the applicant's nominated address in Australia, the applicant was notified of the refusal on 23 August 2005, seven working days after the date of the notification letter in accordance with subsection 494C(4) of the Act.
c)The last day within the prescribed period that the applicant could have made an application for review was 13 September 2005 in accordance with s.347 of the Act and reg 4.10(1)(a) of the Regulations. The applicant did not submit an application for review until 19 September 2005 and accordingly, the MRT found the review application ineligible.
Application before the Court
The applicant applied to this Court for review of the MRT decision on 30 November 2005. The applicant claimed that the MRT erred in law by determining that the application was review was outside the time period specified in s.347(1)(b) . She claimed that the letter notifying of the decision was an error of law as it failed to satisfy the statutory description in s.494B and referred to Vetter v Lake Macquarie Council (2001) 202 CLR 439 at [24], which in the respondent's submission has no application to this case. She further claimed that the decision involved jurisdictional error because it wrongly exercised its jurisdiction and referred to Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476.
[2] court book, page 37
[3] court book, page 35
[4] court book, page 40
[5] court book, page 49
[6] court book, page 52
It does not appear in this case that there could be any challenge to the notification of the delegate's decision, which is evidenced by the letter appearing on page 36 of the court book. Having established that, there appears to me to be no doubt that the MRT was correct in concluding that the review application made to it by the applicant was not made within the period of 21 calendar days prescribed by the Migration Act and Regulations. As the presiding member notes at paragraph 7 of his decision[7]:
Records from the Department of Immigration and Multicultural and Indigenous Affairs (the Department) show that the review applicant's visa was refused on 12 August 2005. The refusal notification letter was sent to the review applicant's nominated address. As the decision notification was posted to the review applicant's nominated address in Australia, the Tribunal finds that the review applicant was notified of the refusal on 23 August 2005, this being 7 working days after the day of the notification letter in accordance with subsection 494C(4) of the Act.
[7] court book, page 57
The presiding member goes on at paragraph 8:
The Tribunal finds that the review applicant was required to give her application for review to the Tribunal within 21 calendar days after the day when the delegate notified [her] of the decision. The last day within the prescribed period that the review applicant could have made the application for review was 13 September 2005. The review applicant did not give the application for review to the Tribunal until 19 September 2005.
Ms Chung, in her affidavit, explains why her review application was late. It is a plausible explanation. She was in part dependent on others for the receipt of correspondence. She was also engaged in overseas travel at a critical time. Had the MRT had the power to extend time for the receipt of the review application it is, in my view, quite likely that Ms Chung would have been able to persuade the MRT to exercise that power.
I have on several previous occasions[8] expressed the view that it is unfortunate that review tribunals do not have that power. The same view has been expressed at an earlier time by the High Court[9], but the fact is review tribunals have no power to extend the time within which review applications are required to be made. In these circumstances the only available legal remedy would seem to be an application in the High Court seeking to review the decision of the delegate. That course would not be consistent with government policy which encourages applications at first instance in migration matters to be commenced in this Court rather than the High Court. However, as has been noted by the Federal Court recently[10], the scheme of the legislation now leaves applicants with no other option in circumstances where they are dissatisfied with a primary decision. That is the only useful avenue of judicial review available to applicants where, as here, they are denied by inflexible legislation the opportunity to seek review on the merits.
[8] see SZCTH v Minister for Immigration (No 2) [2004] FMCA 284 at [26]-[27]; SZBMF v Minister for Immigration [2005] FMCA 925 at [8] and SZIOU v Minister for Immigration [2006] FMCA 602 at [5].
[9] Re Minister for Immigration; ex parte Miah (2001) 197 ALR 238 at [223]-[224]
[10] SZBWD v Minister for Immigration [2006] FCA 253 at [12]
There is nothing before me to persuade me that the application to the Court is frivolous or vexatious. I am satisfied that Ms Chung is genuinely aggrieved with the outcome of her visa application. She has brought the present application to this Court in good faith. However, her application cannot succeed. I agree with paragraphs 7 to 11 of the Minister's written submissions:
The respondent accepts, as a matter of principle, that the exercise by a court of a power to strike out or dismiss an application on the basis that there is no reasonable cause of action disclosed is appropriate only where it is made to appear that the claim is ‘so clearly untenable that it cannot possibly succeed’ (see General Steel Industries Inc v Commission for Railways NSW (1964) 112 CLR 125, Webster v Lampard (1993) 177 CLR 598, Lee v Minister for Immigration [2002] FMCA 279, Applicant A135/2002 vMinister for Immigration [2003] FCA 708, Applicant A163/2002 v Minister for Immigration & Ors [2003] FCA 677 and Xie v Immigration Dept [1999] FCA 365).
While accepting that the Court’s power to summarily dismiss an application should be used only sparingly, particularly where the applicant is unrepresented, it is inevitable that this applicant would be unsuccessful if the application were heard on a substantive basis.
The respondent submits that this particular application discloses no reasonable cause of action in relation to this proceeding. This is simply a case where the applicant did not apply to the MRT for review within the required time period. The MRT was bound to find that the application for review was invalid, given that the prescribed time limit is mandatory. The legislation does not allow for any other result. This is so even in a case where the applicant has not actually received the document in question:
a)In Murphy v Minister for Immigration [2004] FCA 657, Spender J considered the issue where notification was given by the Minister by prepaid post, to an address that was the last address for service provided by the applicant, where the Minister was aware that the letter of notification would be returned undelivered. Spender J found, at [69], that:
The person is 'taken to have received the document', in the circumstances of this case, seven working days after the date of the document. In my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification. There is nothing to indicate that the effect of the subsection is to be read as if there was a proviso that the person was not taken to have received the document where the documents had been returned undelivered to the sender within seven working days after the date of the document, or that the subsection operates in its terms only 'until the contrary is proved'. (Emphasis added)
b)In Xie v Minister for Immigration [2005] FCAFC 172, the Full Court said at [13] that:
Subsection 494C(4) does not purport to create a rebuttable presumption of fact. It provides that in certain circumstances, a person is to be 'taken to have received the document…'. Nothing in the section suggests that this is merely a rebuttable presumption.
The MRT could not have made any decision other than that it had no jurisdiction to declare the application to be invalid. In any case, the applicant would not have succeeded in the substantive application given the certification by the CMO.
a)In SZAXN v Minister for Immigration [2003] FMCA 560, Scarlett FM summarily dismissed an application on the basis that the application was "doomed to fail if it were to be heard on a substantive basis" and that "no cause of action reasonable or otherwise" was disclosed. This decision was upheld in the Federal Court on appeal in SZAXN v Minister for Immigration [2004] FCA 275 (19 March 2004).
b)In Kosi v Minister for Immigration [2003] FMCA 340, the Court summarily dismissed an application for review of a decision of the MRT refusing the grant of a bridging visa. Federal Magistrate Driver held that if that application were to proceed to a hearing it would necessarily fail.
The respondent submits that the applicant's case is futile and doomed to fail given that there was no jurisdictional error in the MRT decision and that the legislation mandates that when an application for review is lodged out of time, it is invalid.
I accept that the motion should succeed upon the basis that the judicial review application discloses no reasonable prospect of success. I will uphold the motion and dismiss the application pursuant to rule 13.10(a) of the Federal Magistrates Court Rules.
The application having been dismissed, costs should follow the event. Ms Quinn tells me that the Minister's costs incurred in these proceedings to date are approximately $4,000. The Minister seeks costs fixed in the sum of $2,500 on a party/party basis. Having regard to the preparation required of the Minister for the hearing of this motion and the three appearances that have been necessary in the Federal Court and this Court, I accept that that is a fair party/party assessment.
I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $2,500.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 15 May 2006
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