Han v Minister for Immigration

Case •

[2007] FMCA 246

•

5 March 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HAN v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 246
MIGRATION – Migration Review Tribunal – notification by dispatching by post – whether dispatched within three days of date on letter – erroneous finding of fact whereby MRT denied itself jurisdiction – jurisdictional fact.
Migration Act 1958, ss.494B(4), 494C
Corporation of the City of Enfield v Development Assessment Commission (2000) 1999 CLR 135
H v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 153
NABE v Minister for Immigration (No 2) (2004) 144 FCR 1
Applicant: PINGKE HAN
First Respondent: MINISTER FOR IMMIGRATION
Second Respondent: MIGRATION REVIEW TRIBUNAL
File Number: BRG772 of 2005
Judgment of: Jarrett FM
Hearing date: 23 October 2006
Date of Last Submission: 23 October 2006
Delivered at: Brisbane
Delivered on: 5 March 2007

REPRESENTATION

Counsel for the Applicant: Mr Boccabella
Solicitors for the Applicant: A.J. Torbey & Associates
Counsel for the Respondent: Ms Wheatley
Solicitors for the Respondent: Clayton Utz

ORDERS

  1. That the name of the first respondent be amended to the “Minister for Immigration and Citizenship”.

  2. That a writ of certiorari issue to the Second Respondent quashing the decision of the Migration Review Tribunal handed down on


    15 November, 2005.

  3. That a writ of mandamus issue directed to the Second Respondent to rehear and determine the Applicant’s application for review according to law.

  4. That a writ of prohibition issue directed to the First Respondent preventing him or his agents or delegates from acting upon or giving effect to or enforcing the purported decision.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG772 of 2005

PINGKE HAN

Applicant

And

MINISTER FOR IMMIGRATION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application commenced on 9 December, 2005 and amended on 10 October, 2006 for the review of a decision made by a migration review tribunal on 15 November, 2005 which affirmed a decision of the delegate of the (then so described) Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) not to grant the applicant, a Student (Temporary) (class TU) Higher Education Sector visa.

Background[1]

[1] taken from the reasons for decision that I delivered in Han v Minister for Immigration (No. 2) [2006] FMCA  1251

  1. The applicant was born in China, but is presently living in Australia.  On 11 March, 2005 he applied for a Student Visa (Class TU, subclass 573).  On 29 June, 2005 a delegate of the Minister determined that the application was unsuccessful and the visa was refused.

  2. The decision was recorded in a letter dated 29 June, 2005 and addressed to the applicant at 9 Tequila Street, Calamvale, Qld.  That address was the applicant’s residential address when he made application for the visa and was notified by him (in the application for the visa) as his address for correspondence.

  3. On 3 August, 2005 the applicant lodged an application for review of the delegate’s decision by a Migration Review Tribunal (“the tribunal”). By the application, he appointed a registered migration agent as his authorised recipient.

  4. On 15 November, 2005 the tribunal wrote to the applicant’s authorised recipient enclosing the tribunal’s decision record. The tribunal’s decision was made on 15 November, 2005. The tribunal decided that the application for review was ineligible for consideration because it was not made to the tribunal within the period prescribed by s.347 of the Migration Act 1958 (“the Act”).

  5. The tribunal’s reasons record:

    5.  On 9 August 2005, the Tribunal invited the review applicant to comment and provide further information in writing on the eligibility of this application.  A Commonwealth Statutory Declaration was received on 5 September 2005.  The review applicant states:

    “I did not receive the decision of DIMIA until 2 August 2005, when I went to the office of DIMIA Brisbane.

    I talked to a male officer there and I can’t remember his name now.  He handed over to me a copy of the letter from Brisbane General Client Services dated 29 June, 2005.  He told me that the deadline to lodge a review in MRT was 06/08/2005.

    The officer also stated that they had sent the letter to me.  But I have never received the said letter.”

    The De1egate’s letter states:

    “If you remain in Australia and you have not lodged your application for review, and you do not hold another visa, you will become an unlawful non-citizen on 06/08/2005 and therefore be liable detention and removal.”

    6. Records from the Department show that the review applicant’s visa was refused on 29 June 2005. The refusal notification letter was sent to the review applicant’s nominated address for correspondence. As the decision was posted to an address in Australia, the review applicant is taken to have been notified on 8 July 2005, this being 7 working days after the date of the notification letter in accordance with subsection 494C(4) of the Act.

7. The Tribunal finds that the review applicant was required to give his application for review to the Tribunal within 21 calendar days after the day when the delegate notified him of the decision.  The last day within the prescribed period that the visa applicant could have made the application for review was 29 July 2005.  The review applicant did not give the application for review to the Tribunal until 3 August 2005.

8. The application was not lodged within 21 calendar days from the day that the visa applicant was notified of the delegate’s decision and is therefore not made within time.

  1. On 9 December, 2005, the applicant filed an Application for Review of the tribunal’s decision made on 15 November, 2005.  The grounds sought to be agitated are set out in the application as follows:

    1. It is submitted that the Applicant was denied procedural fairness because the MRT failed to take into consideration that the Applicant was not at fault for the delay.  The reason the Applicant was not at fault for the delay is because the Department of the Minister for Immigration and Multicultural and Indigenous Affairs (DIMIA) had failed to notify (sic) Applicant of their decision.  The Applicant had to physically go to the office of DIMIA to obtain the record of the decision.

    2. Furthermore, it is submitted that the MRT had failed to take into consideration the fact that when the Applicant went to the DIMIA office, he was incorrectly informed of the date for review.

    3. It is therefore submitted that due to the above reasons which were beyond the Applicant’s control, he was late in his Review Application.”

  2. The application sought an order that the “decision of the MRT made on 15 November, 2005 to affirm the decision under review not to grant the applicant a Student (Temporary) (Class TU) Higher Education Sector visa be quashed.”.  No such decision, of course, was made by the tribunal. 

  3. The application was listed for directions on 6 February, 2006.  It appears to have been filed by the applicant personally because his name appears at the foot of the application.  His address as it appears at the foot of the application is 22 Devonlea Street, Eight Mile Plains, Qld.  That is his residential address[2].  His address for service, however, is an address at Durack.  That appears to be the address of his migration agent.

    [2] see paragraph 6 of his affidavit filed on 15 August, 2006

  4. On 6 February, 2006, the matter came before me on its first court date. The applicant did not appear, but the respondent did. The respondent urged me to deal with the matter summarily. I dismissed the application pursuant to Rule 13.10[3] of the Federal Magistrates Court Rules 2001 (“FMCR”). I concluded that there was no reasonable prospect of the application for review succeeding.

    [3] see Han v Minister For Immigration [2006] FMCA 626

  5. The applicant appealed my decision given on 6 February, 2006, but the appeal was overtaken by an application by the applicant for an order pursuant to FMCR 16.05(2) that the judgment given in his absence be set aside.  That application succeeded[4].  The appeal was dismissed[5].

    [4] see Han v Minister for Immigration (No. 2) [2006] FMCA  1251

    [5] see Han v Minister for Immigration and Multicultural Affairs [2006] FCA 1426

  6. By his amended application for an order for review filed on


    10 October, 2006, the applicant seeks the following orders:

    1. An order that the decision of the MRT made on 15 November 2005 to affirm the decision under review not to grant the applicant at Student (Temporary) (Class TU) Higher Education Sector visa, determining that the application for review is ineligible because it was not made to the second respondent within the prescribed period under s. 347 of the Act be quashed.

    2. The first respondent be ordered to pay the costs of the applicant in these proceedings.

    3. The matter be remitted to the second respondent for determination according to law.

  7. The grounds of the amended application are set out therein and I will not repeat them verbatim.

Legislative background

  1. An application for review of a MRT-reviewable decision must be made using the approved form and it must be made within the time prescribed for the making of such applications. In the case of MRT-reviewable decisions covered by s.338(2) of the Act, the prescribed time 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[6]. It is common ground that the decision sought to be challenged by the applicant in the tribunal is an MRT-reviewable decision covered by s.338(2) of the Act.

    [6] s 347 of the Act and reg. 4.01(1)(a) Migration Regulations.

  2. Failure to make application within the time prescribed by the Act and Regulations is fatal. An application made within time is essential to the exercise of jurisdiction by the MRT.[7]

    [7] Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407; VEAN of 2002 vMinister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 311; BinXie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172

  3. By s.66(1) of the Act, when the Minister refuses to grant a visa he or she must notify the applicant of the decision in the prescribed way. By reg 2.16 (3) of the Regulations the Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in s.494B of the Act. Relevantly s.494B of the Act provides:

    494B Methods by which the Minister gives documents to a person

    Coverage of section

    (1)For the purposes of provisions of this Act or the regulations that:

    (a) require or permit the Minister to give a document to a person (the recipient); and

    (b) state that the Minister must do so by one of the methods specified in this section;

    the methods are as follows.

    Giving by hand

    (2) One method consists of the Minister (including by way of an authorised officer) handing the document to the recipient.

    …

    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.

  4. Section 494C of the Act prescribes when a person will be taken to have received a document given to the person by the Minister using on of the methods prescribed by s.494B of the Act. It is described in the authorities as a "deeming" provision. Provided one of the methods prescribed is followed, actual receipt of the document by the visa applicant is unnecessary[8]. Relevantly s.494C of the Act provides:

    [8] BinXie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172; SZBMF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1427

    494C When a person is taken to have received a document from the Minister

    (1)This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A).

    …

    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; or

    (b) in any other case - 21 days after the date of the document.

Discussion

  1. Against that legislative and factual background, the applicant contends that:

    a)the tribunal found that the Minister had dispatched the letter notifying the applicant of the refusal of his visa application by post within three days of the dating of that letter;

    b)that finding was a finding as to a jurisdictional fact;

    c)that finding was wrong; and

    d)this court is entitled to make its own finding of fact about that issue and that it should find that the respondent has not discharged the onus on him to prove that the letter was posted.

  2. Alternatively, relying upon H v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 153 the applicant argues that:

    a)the Minister adopted two methods of notifying the applicant of the visa decision, the second being the giving of a copy of the relevant letter to the applicant by hand on 2 August, 2005;

    b)the applicant is entitled to elect between the two methods of receipt and adopt that which will produce for him the most favourable result, in which case, is application to the MRT was within time.

  3. As to the first ground of the applicant's argument, I am satisfied that the tribunal decision carries with it an implicit finding that the decision letter was posted within three days of the date of that letter.  The critical findings are those set out in paragraphs 6 and 7 of the decision (I have set them out above).  There is an express finding that the letter was posted: "The refusal notification letter was sent to the review applicant’s nominated address for correspondence.  As the decision was posted to an address in Australia…".

  4. There was evidence to support that finding.  In the bundle of relevant documents filed for use in these proceedings there are a number of copies of the decision letter, each of which bears the date 29 June, 2005.  There is no contention that the letter was not dated.  Each copy of the decision letter bears the words "BY MAIL" at the top of the letter.  The application completed by the applicant notes that he was notified by post of the decision.  There was no other evidence before the tribunal, such as a certified mail or other posting receipt for the dispatch of the letter, but given the applicant's admission in the application, no other evidence was probably necessary.

  5. As s.494B(4)(a) makes clear, however, the dispatch of the relevant document must take place within three days of the date of the document. There is no express finding by the tribunal that the decision letter was dispatched within three days of the date expressed on its face. Such a finding is implicit in the tribunal's reasons – that must be so because without such a finding, there can be no finding that the letter was given to the applicant by one of the methods prescribed by s.494B.

  6. There was, however, simply no evidence before the tribunal that supports such a finding.  The material that was before the tribunal permitted of a finding that the decision letter had been dated (s.494B(4)) and that it had been dispatched by prepaid post (s.494B(4)(b)) to the last address for service provided to the first respondent by the applicant for the purposes of receiving documents (s.494(4)(c)(i)).  But there was nothing that would permit of any inference that the dispatch took place within three days of the date of the letter.

  7. The error operated so as to lead the tribunal to deny itself jurisdiction.  Having regard to the discussion in NABE v Minister for Immigration (No 2) (2004) 144 FCR 1[9] and the authorities therein cited I am satisfied that the tribunal's error might be described as an error as to a jurisdictional fact.  The tribunal made a finding of fact that was not supported by any evidence and thereby denied itself jurisdiction to hear the application.

    [9] at [52]-[54]

  8. The applicant urges that I determine the relevant jurisdictional fact myself and find that the letter was not posted as the tribunal found.  Having regard to what is set out above, the issue to be determined is whether the decision letter was dispatched by post or otherwise within three days of 29 June, 2006.

  9. The respondent argues that it is inappropriate for this court to make its own finding of fact about that matter and that the applicant's reliance on Corporation of the City of Enfield v Development Assessment Commission (2000) 1999 CLR 135 is misplaced. Curiously, however, the respondent filed an affidavit of the decision maker in which she deposes to the "dispatch" of the decision letter on 29 June, 2006. She swears that she has no current recollection of this particular matter but, having regard to the first respondent's file and the notes made on the computer system by her she "would have done the following to send the letter:

    a)I would have placed the letter in an envelope.

    b)I would have addressed to the envelope to Mr Han at his current address as shown on ICSE, which was 9 Tequila Street, Calamvale, Queensland and stamped the envelope with a "registered mail" wet ink stamp.

    c)I would have placed the envelope in the 'mail basket trolley' in our office, where all the outgoing mail for my area is placed.

    8. I placed the envelope in the 'mail basket trolley' expecting that the envelope containing the letter would have been posted by the postal administrative staff (OSA).

  10. Even if I were to accept it, the decision maker's evidence does not establish that the decision letter was dispatched within three days of its date. The highest the evidence reaches is that the decision maker prepared the decision letter for posting and placed it in the 'mail basket trolley'. The first respondent argues that placing the properly addressed envelope containing the decision letter in the mail basket trolley is all that is required for there to be a "dispatching" for the purposes of s.494B(4) of the Act.

  11. True it is that s.494B(4)(b) provides for dispatch by prepaid post or by other prepaid means, but in my view more is required than has been pointed to by the first respondent. Posting is not the only alternative, and one might posit the example of dispatching the decision letter to a visa applicant by courier service. But at the very least, it is necessary for the envelope to pass from the possession of the first respondent (or his authorised officers or employees). Otherwise, (and to carry the first respondent's argument to its logical conclusion) once the decision maker hands the envelope containing the decision letter to another employee or officer of the Department (say, for the purposes of placing it in the mail basket trolley on behalf of the decision of maker) there will have been a "dispatching" of the decision letter.  Yet it is conceivable that an envelope containing a decision letter might leave the possession of the first respondent more than three days after the date of the letter, or never.

  12. In my view, it is unnecessary to consider whether I should make my own finding as to whether the decision letter was dispatched by the first respondent within three days of its date, because the evidence proffered by the first respondent would not permit of a positive finding for the Minister. 

  1. In the event that I am wrong about that and it is incumbent upon me to make the necessary finding as to the dispatching of the decision letter, I am not satisfied by the evidence that the decision letter was dispatched within three days of the date that it bears. Consequently, I find that the decision letter was not dispatched as prescribed by s.494B(4) and so, the period within which the applicant might have commenced his application for review did not end on 29 July, 2005.

  2. The tribunal found that the applicant received a copy of the decision letter when it was handed to him by an officer of the Department on


    2 August, 2005.  There is no issue about that.  I am satisfied that the period within which the applicant might have commenced his application for review began on that day.  His application was filed on the next day.  It is, therefore, plainly within time.

  3. For those reasons, the application succeeds.  I make the orders set out at the commencement of these reasons.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Deputy Associate:  E Crutchfield

Date:  2 March 2007


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