Gharti-Chhetri v Minister for Immigration
[2009] FMCA 375
•20 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GHARTI-CHHETRI v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 375 |
| MIGRATION – Application to review decision of Migration Review Tribunal that it had no jurisdiction – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.66, 338, 347, 348, 476, 494B, 494C, 494D |
| Durrani v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 629 Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407 Misto v Minister for Immigration & Anor [2008] FMCA 695 Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 133 FCR 550 VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570 |
| Applicant: | KARUN GHARTI-CHHETRI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2025 of 2008 |
| Judgment of: | Barnes FM |
| Hearing date: | 20 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 20 April 2009 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $4,125.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2025 of 2008
| KARUN GHARTI-CHHETRI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Migration Review Tribunal, signed on 9 July 2008 and sent to the applicant by registered post on 10 July 2008, that the Tribunal did not have jurisdiction in the matter before it because the application for review had been lodged out of time.
The applicant in this case made an application for a Student Temporary Class (TU) visa on 15 March 2004. A delegate of the first respondent decided to refuse to grant the visa on 31 March 2008. There is no evidence before the Court in relation to the length of time taken for the decision. What is relevant for present purposes is that the delegate of the first respondent wrote to the applicant by letter dated 31 March 2008 sent by registered post advising that the delegate had decided to refuse the grant of the visa for attached reasons, advising him that he was entitled to apply for review and must do so within 21 calendar days after he received the letter and that he would be taken to have received it seven working days after the date of the letter. The delegate also advised that the time-limited review period was prescribed by law and that a review application could not be accepted after that date. The letter explained that applications for review must be lodged with the Migration Review Tribunal and stated that a leaflet was enclosed providing information in relation to review.
The applicant lodged an application for review with the Migration Review Tribunal that was stamped “Received by the Tribunal by hand on 16 May 2008.” He provided a submission to the Tribunal in relation to his circumstances, stating that while the delegate’s letter appeared to have been ready for despatch on 31 March 2008, the acknowledgement from the Post Office arrived at his address on 23 April 2008 and that he immediately went to the Post Office to collect the letter from the Department. He enclosed a copy of a “receipt for signature on delivery items” Form from the Post Office showing that a letter bearing the same registered post number as the delegate’s letter was received by the Post Office on 2 April 2008 and delivered to the applicant on 23 April 2008.
The applicant submitted to the Tribunal that on this basis his review application was not out of time, as the time should be calculated from the date that he actually received the letter from the Department. He also explained his circumstances in relation to study in Australia.
The Tribunal acknowledged receipt of the application and advised the applicant that it had requested the Department to provide all documents which it considered relevant and that he would be advised if his application was found to be ineligible.
The material before the Court includes an exchange of emails between the Department and the Tribunal in which the Tribunal sought registered post records in relation to posting of the letter dated 31 March 2008 refusing the applicant's visa application. The Tribunal was provided with a copy of a Departmental outgoing registered post report indicating that a letter with a registered post number on it which accords with the letter of 31 March 2008 was posted to the applicant on 1 April 2008.
The Tribunal wrote to the applicant on 2 June 2008 advising him that based on an initial assessment his application may be ineligible. It explained the applicable time limit under the Migration Act 1958 (Cth), that the Department made its decision on 31 March 2008 and was taken to have notified him on 9 April 2008 and that on this basis the application was out of time. It sought his comments on that information.
The applicant responded with comments which suggested that the 21 days should be taken to run from the date he actually received the letter from the Post Office. He claimed that as soon as he received notification from the Post Office he collected the registered letter. In effect his argument was that the time limit relating to review applications should be calculated from the time of actual notification rather than deemed notification. He also raised a concern that the decision-maker's evidence did not establish that the decision letter was despatched within three days of its date as required under the Migration Act 1958 (Cth).
In its reasons for decision the Tribunal set out the relevant law in the Migration Act and Regulations. In its findings and reasons it addressed the applicant's submissions and contentions and the material before it. It found that the applicant was seeking review of an MRT reviewable decision and hence that the prescribed period for seeking review was 21 days starting when the applicant was notified of the decision. It referred to the relevant statutory provisions (see ss.348, 347 and 338 and regs.4.2 and 4.10).
The Tribunal was satisfied that the contents of the delegate's decision notice complied with the requirements of s.66(2) of the Act (which provides that a notification of a decision to refuse a visa must contain certain information about why the visa was refused and, if there is a right of review, how to apply for review). The Tribunal stated that as the decision notice was sent by pre-paid registered post it had made enquiries with the Department to determine whether it was sent within three working days of the date of the notice and that on 30 May 2008 the Department's mail and distribution centre had confirmed that the decision notification letter and decision was sent by registered post to the applicant's address on 1 April 2008 which was within three working days (ss.66, 494B and 494C).
The Tribunal also observed that there was no material to indicate that there was an authorised recipient and that the notice was sent to the last residential address provided by the applicant to the Minister for the purposes of receiving documents (ss.494D and 494B). The Tribunal found the decision notice was despatched within three working days of the date of the letter to the correct address and that therefore the applicant was taken to have received the notice seven working days after the date of the notice (that is, on 9 April 2008) under s.494C(4)(a), even though he did not claim to have received it until 23 April 2008.
The Tribunal did not accept that the applicant's submissions provided any basis for accepting the review application. It rejected his submission that the time should run from the time of actual receipt of the letter. The Tribunal found that the applicant was properly notified of the delegate's decision and was taken to have been notified on 9 April 2008 so that the prescribed period of 21 days for the application for review ended on 30 April 2008. The Tribunal noted that his evidence was that he signed for the registered post item on 23 April 2008 and observed that as the last day on which to lodge a review application was 30 April 2008 the applicant was still in time to lodge a review application, but that he did not do so until 16 May 2008.
The Tribunal found that the application for review was received outside the mandatory time limit. Hence the Tribunal found it was not a valid application and that it had no jurisdiction in this matter.
The applicant sought review by application filed in this Court on 6 August 2008. The application contains a lengthy annexure listing grounds of appeal, many of which do not in fact appear to relate to the circumstances of the applicant's case. In oral submissions today the applicant focused on and addressed only the issues in relation to the Tribunal’s jurisdiction, the time at which he received notification and the time for lodging a review application. I invited him to address the Court on any of the other grounds for appeal if he wished to do so. He did not.
Insofar as the grounds in the application or submissions suggest that there were compelling circumstances that either the Tribunal or the Court should take into account or that there are humanitarian considerations, I note first that the Tribunal decision was a decision that it did not have jurisdiction in this matter. It did not proceed to consider the application. It was not open to the Tribunal and on judicial review, as I endeavoured to explain to the applicant, it is not open to this Court, to have regard to whether there are compelling or compassionate circumstances.
The applicant complained that the Tribunal gave no weight to the “enormous delay” in the delegate's decision to refuse the visa application. I have referred to the unexplained period of delay. However the only issue before the Court in these proceedings is whether the Tribunal fell into jurisdictional error in finding that it did not have jurisdiction in this matter. There is nothing in the material before the Court to indicate whether the applicant has some other basis on which he might seek to raise an issue with the Minister in relation to the time taken to make a decision on his visa application.
It was generally contended, without explanation, that the decision was an improper exercise of power and affected by actual bias. There is nothing in the material before the Court to support an allegation of actual bias. Insofar as that ground might be intended to relate to whether there was evidence as to when the letter was despatched by the Department, as the Tribunal indicated there was evidence before it from the Department obtained after the review application was lodged as to despatch of the registered post letter of 31 March 2008 in question on 1 April 2008. The Tribunal made enquiries and had regard to that information. It also had regard to the submissions of the applicant. Neither actual nor apprehended bias is apparent in its consideration of the issue of its jurisdiction.
Other grounds raised by the applicant suggest a failure to comply with procedures that apply where the Tribunal has jurisdiction and undertakes a review. They do not assist in these circumstances and do not establish jurisdictional error. Such grounds are not relevant to the issue of whether the Tribunal had jurisdiction in respect of the application for review. Insofar as the applicant might be seen to be seeking review of the delegate's decision, the delegate's decision was reviewable by the Tribunal and this Court has no jurisdiction to review that decision (s.476).
In relation to the Tribunal's jurisdiction, in its reasons for decision the Tribunal set out at some length the applicable law and regulations. It properly found that the applicant was seeking review of an MRT-reviewable decision under ss.347 and 348, referring to s.338 and reg.4.02(4).
As the Tribunal observed, s.347(1)(b) of the Act requires an application for review to be given to the Tribunal within a prescribed period. By reg.4.10(1)(a) a review application in relation to a refusal to grant a student visa must be lodged at a registry of the Tribunal within a period not later than 21 days after the day on which notice of the delegate's decision is received and there is no provision in the Act and/or Regulations for any extension of time.
The Tribunal also had regard to the provisions applicable to decisions of a delegate. It properly considered (and there is no error apparent in its consideration) the fact that the delegate's decision complied with the requirements of s.66(2) and was a notification under s.66(1) of the Act by one of the methods specified in s.494B, in this case by the Minister despatching the document within three working days of the date of the document by pre-paid post or other pre-paid 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)). No issue is taken by the applicant and nor does any issue arise on the material before the Court as to the address to which the notification of the delegate's decision was posted. There is no suggestion that it was sent to the wrong address.
There is evidence before the Court consisting of the information the Tribunal obtained from the Department as to the posting of the letter of 31 March 2008 on 1 April 2008. As the Tribunal found, this was within three working days of the date of the letter. The Tribunal properly addressed the deemed notification provisions relevant in these circumstances. Section 494C(4)(a) is the critical provision which means that the applicant's argument cannot succeed. It provides that if a document was given to a person by the prescribed method and was despatched from a place in Australia to an address in Australia, the person is taken to have received the document seven working days after the date of the document. The effect of this provision is that the applicant would be taken to have received the document on that date, even if the document was never in fact received. Hence the prescribed period in which a review application had to be lodged in this case, as the Tribunal found, commenced seven working days after the date of the notice of 31 March 2008.
There is no error apparent in the Tribunal findings on the evidence before it in relation to the sending of the notice by the Department, that it was despatched within three working days and that therefore the applicant was taken to have received it seven working days after the date of the notice, even though he did not claim to have received it until 23 April 2008. Nor is there any error apparent in the Tribunal's finding that the period within which the applicant had to lodge an application for review ran from the time of deemed receipt rather than, as the applicant submitted, from the time he actually received the letter of notification. The Tribunal found that the application was received after the prescribed period had expired. No error is apparent in this finding.
Hence the Tribunal correctly found that it had no jurisdiction to deal with the matter. It had no power to override the mandatory time limits prescribed in the Act (see Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407). In Durrani v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 629 Sackville J dealt with circumstances where an application for review to the Migration Review Tribunal was out of time. His Honour found on that basis that the Tribunal did not make an error of law when it concluded that it had no jurisdiction to determine the application for review. The same may be said in this case. I note that no issue arose as to the address on the Department's letter (see VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570).
The applicant's general contention that the Tribunal erred in relation to the date by which he had to make the application for review is not established. The prescribed period did not run from the time of actual receipt, but rather from the time of deemed receipt of notification (see Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 133 FCR 550 at [69]). Nor has any error been demonstrated in relation to the time of despatch of the delegate's decision. In that respect the Department's outward registered post report in the bundle of documents before the Court shows that on 1 April 2008, the day after the delegate's decision, a registered post item bearing the same number as the registered post number on the Australia Post “receipt for signature on delivery items” provided by the applicant to the Tribunal was sent to the applicant's address for service. Thus it coincides with the item which the applicant received from the Post Office on 23 April 2008, albeit it was received by the Post Office on 2 April 2008. Any delay on the part of the Post Office is not such as to overcome or affect the operation of the statutory time limits on review applications. That evidence shows, as the Tribunal found, compliance by the Department with s.494B(4)(a) (see Misto v Minister for Immigration & Anor [2008] FMCA 695).
No error has been demonstrated in the Tribunal's finding that it did not have jurisdiction in this matter. It has not been established that it failed to correctly apply the provisions of the Act relevant to the issue of its jurisdiction and the relevant Migration Regulations. As no jurisdictional error has been established the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful and there is nothing in the circumstances of the present case to warrant a departure from the normal principle that the unsuccessful application should meet the costs of the first respondent. I consider that the amount sought is appropriate having regard to the nature of this case and other matters and the provisions of the Federal Magistrates Court Rules.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 11 May 2009
6
1