Do v Minister for Immigration
[2012] FMCA 1196
•7 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DO v MINISTER FOR IMMIGRATION | [2012] FMCA 1196 |
| MIGRATION – Cancellation of visas – character test. |
| Constitution of Australia, s.75(5) Migration Act 1958, ss.476, 500, 501G Migration Regulations 1994 reg.2.55(9) |
| Applicant: | MINH HOANG DO |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | MLG 1562 of 2012 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 7 December 2012 |
| Date of Last Submission: | 7 December 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 7 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hughan |
| Solicitors for the Applicant: | Hymans Solicitors |
| Counsel for the Respondent: | Ms Burchall |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed 6 December 2012 be dismissed.
The Applicant pay the Respondent’s costs fixed in the sum of $1,296.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1562 of 2012
| MINH HOANG DO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
(as revised from transcript)
This is an application for urgent relief with respect to the deportation of a person who held a resident visa which has been cancelled on the character test as a result of criminal conduct relating to drug trafficking.
The decision notifying of the cancellation was posted to the Applicant at the postal address of the jail in which he was held.
There are a number of significant points that were argued which are difficult issues but need to be determined quickly, given that the deportation is to take place on Monday morning. As a result, I will provide very brief reasons immediately.
First Issue
The first issue is whether or not this Court has jurisdiction.
The jurisdiction of this court is set out in s.476 of the Migration Act 1958. Subsection (1) gives the Court the same jurisdiction as the High Court under s.75(5) of the Constitution in relation to migration decisions. Thereafter, subsection (2) removes various aspects of migration decisions from the jurisdiction of the court, importantly s.476(2)(a) removes jurisdiction with respect to primary decisions.
In this case, the decision of the delegate cancelling the visa was clearly a primary decision which would not be reviewable in this court. That decision was reviewable, or could be reviewable, in the Administrative Appeals Tribunal. Any decision of the AAT would not be reviewable in this court.
It is argued that, as a result of the extended definition of a privative clause decision in s.474, particularly s.474(3)(g) ‘doing or refusing to do any other act or thing’, that an argument concerning a defective notice given under s.501G would be a decision that is within the jurisdiction of this Court.
It seems to me that the giving of a notice pursuant to a delegate’s decision is part of the process of the delegate’s decision, and in this case, would not be reviewable in this Court, particularly when one considers that in this case, the particular notice is given between a delegate’s decision and a potential appeal to the AAT, neither of which decisions this Court would have any jurisdiction to deal with.
If I would be wrong on the jurisdictional question, I would still be against the Applicant for further reasons.
Validity of the decision
Firstly, it’s important to note that s.501G(4) states that the failure to comply with the section in relation to a decision does not affect the validity of the decision, therefore the cancellation decision remains valid in accordance with the section.
The real nub of the problem from the Applicant’s perspective is that the time limit for appeal to the SSAT is set out in s.500(6)(b), to the effect that a person has nine days after the day on which they are notified of the decision, in accordance with s.501G, to lodge the appeal. It seems to me that therefore the limitation period for lodging an appeal to the AAT expires nine days after the notice. It does not appear to me that the section means that you can’t lodge an AAT appeal prior to formal notice in accordance with s.501G, rather simply that you can’t lodge the appeal after nine days after the formal notice in accordance with s.501G. Therefore, it has been open to the Applicant to lodge an appeal to the AAT for many months, if there was not in fact formal notice in accordance with s.501G.
No appeal has been lodged, nor any appeal documents were drawn or provided to show that there are prospects on such an appeal.
Importantly, it is not clear that, had an appeal been lodged, there would be some basis for the Court to exercise jurisdiction to injunct the Department from deporting the person pending the determination of the administrative appeal to the AAT, at least on the case put to me.
Section 501G Notice
Turning to s.501G, it is said that there are two defects in the notice in this case. The first is that it didn’t clearly state the time in which the application for review may be made, in that there is an argument that in this case, because it was posted to the postal address at the prison at which the Applicant was located, it couldn’t be considered to be delivered by post, and it is unclear whether it would be properly be considered to be delivered by hand.
It seems to me that a document posted to the prison is no different to a document posted to a hotel or a hostel that a person lives at, or to a house that they share, and that in this regard it simply was service by post. If I be wrong in that regard, in any event it was certainly given to the Applicant at some point by the prison (as much as is admitted in his material), and under reg.2.55(9), the day upon which he has received it is defined as the date he was given it.
In the Applicant’s affidavit material, it is clear that he received it sometime in May, certainly by June or July and had received practical advice from an officer of the Department that the time limit had expired. Whether that be due to the postal rule, the hand delivery rule or the rule in reg.2.55(9) about actual receipt, it seems to me to matter little because the time limit has certainly expired and no appeal has been lodged.
However, I remain of the view that the postal rule in the legislation would apply in this case. It was posted to the relevant address for the Applicant which is the prison address at which he is currently residing, whether or not it be a residence of choice or a residence imposed upon him.
It is also argued that a further subsection not complied with is s.501G(1)(f)(v), which requires that the effect of ss.500(6A) to (6L) inclusive are set out in the notice. The notice, it seems to me, tends to summarise in more simple terms the rather convoluted “plain English” law that is set out in the statute.
It does not appear to me that it is reasonably arguable that the notice does not properly set out the effect of the subsections. No specific error or misleading phrase or sentence was identified in that regard.
For those reasons, I am not persuaded that this is a case where s.501G has not been complied with in any event.
Having regard to all of those findings, I am therefore of the view that the application cannot succeed. Even if there were an arguable case with respect to the notice, in the absence of any material showing an arguable case before the AAT, it appears to me to tell against the discretion being exercised in the Applicant’s favour, particularly in a case where the Applicant has certainly been aware of these issues since May of this year.
The delay and the lack of material as to the merits would also tell against the exercise of any discretion to extend time for the current application before the Court.
For these reasons, I therefore dismiss the current application.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Date: 11 December 2012
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