Hao v Minister for Immigration
[2008] FMCA 1059
•29 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HAO v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1059 |
| MIGRATION – Migration Review Tribunal – time to lodge a review application with – out of time – jurisdiction of Tribunal – mandatory time limitations – Tribunal held it did not have jurisdiction to entertain application lodged out of time – application to review Tribunal’s decision – application dismissed. |
| Migration Act 1958, Subsection 66(1), 348(1), 494B(5), 494C(5), 494D(1), Section 347 Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364 |
| Applicant: | YUN HUA HAO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 237 of 2008 |
| Judgment of: | O'Dwyer FM |
| Hearing date: | 24 July 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 29 August 2008 |
REPRESENTATION
Applicant: In person, assisted by an interpreter
| Solicitor for the First Respondent: | Ms Ngo |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 27 February 2008 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 237 of 2008
| YUN HUA HAO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The applicant seeks a review of the decision of the Migration Review Tribunal (The Tribunal) handed down on 17 December 2007. The Tribunal found that it did not have jurisdiction to entertain the applicant's review of the first respondent's delegate's decision to refuse to grant a Skilled - Independent Overseas Student (Residence) (Class DD) visa. The Tribunal found that the applicant's filing of the review application at the Tribunal was out of time.
The applicant appeared in person before me with the assistance of an interpreter.
At a directions hearing on 17 April 2008, at which the applicant appeared, he was ordered to file and serve contentions of fact and law by a specified date. He did not do so.
At the hearing before me he was, nonetheless, invited to make oral submissions addressing the issues in this case. He acknowledged receipt of the first respondent's contentions of fact and law. He was also invited to respond to them. He was, understandably in circumstances where the arguments are legal, unable to make any pertinent submissions, save to complain about his migration agent who was listed on his application for the visa as an "authorised recipient". He did not make an allegation of fraud against that agent, only that his authorised agent failed to inform him.
TRIBUNAL'S DECISION
The Tribunal, after addressing the applicable law, made findings of fact that the applicant was out of time in relation to the lodgement of his application to review the delegate's decision.
The bases of that conclusion were findings of fact as to the notification, in accordance with the Migration Act 1958 (the Act) and the Migration Regulations 1994 (the Regulations), of the delegate's decision to the applicant per the medium of his authorised recipient. The authorised recipient was forwarded an email setting out the statement of the delegate's decision. Under the legislative provisions applicable, the applicant was deemed to have been given the requisite statement of decision on 11 September 2007. Under the provisions of the Act and the Regulations he had until 2 October 2007 by which to lodge his review. The review was actually lodged on 8 October 2007 and on the bases of the Tribunal's findings of fact, clearly out of time. The Tribunal, as stated, determined that it did not have jurisdiction to review the delegate's decision because the time limitation was mandatory.
LEGISLATIVE FRAMEWORK
Subsection 66(1) of the Act relevantly provides that, when the first respondent or his delegate refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.
Subregulation 2.16(3) of the Regulations relevantly provides that the first respondent or his delegate must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act.
Subsection 494B(5) of the Act states that:
Another method consists of the Minister transmitting the document:
(a)fax; or
(b) email; or
(c) other electronic means
to the last fax number, email address or other electronic address, as the case may be, provided to the Minister by the recipient for the purposes of receiving documents.
Subsection 494C(1) states that:
If the minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of day on which the document is transmitted.
Subsection 494D(1) states that:
(1) If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first respondent to do things on behalf of the first person that consists of, or include, receiving documents in connection with matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents that the Minister would otherwise have given to the first person.
Note: If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.
(2) If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. However, this does not prevent the Minister giving the first person a copy of the document.
Section 347 of the Act relevantly requires that an application for review must be lodged with the Tribunal within the prescribed period.
Paragraph 4.10(1)(a) of the Regulations relevantly states that the period in which a review application must be given to the Tribunal:
…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.
Subsection 36(1) of the Acts Interpretation Act 1901 states that
Where in an act any period of time, dating from a given day, act, or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or of the day of such act or event.
Subsection 348(1) of the Act relevantly states that:
…if an application is properly made under section 347 for review of ans MRT – reviewable decision, the Tribunal must review the decision.
REASONS
On reviewing the decision of the Tribunal there appears to be no error of law, yet alone any jurisdictional error.
The time limitation for the lodgement of reviews are mandatory and the deeming provision as to when time should run after notification is deemed to have been effected on the applicant was properly applied by the Tribunal.
Suffice to say, the notification of the delegate’s decision was properly effected by the method employed in this instance; that is by email to the authorised recipient and in accordance with the legislative framework set out above. The application for review to the Tribunal was clearly out of time and there is no discretion in the Tribunal to extend time or accept an application lodged out of time (see Murphy v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 657).
The Tribunal was correct in refusing to entertain the application for review because of a lack of jurisdiction. (See Tabet v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 446; Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99; Peng v Minister for Immigration and Multicultural Affairs (2000) 102 283; Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364).
The applicant alleged, as I understand his submission, that he was invited to file an amended application and proffered this as an explanation for delay. He also, in correspondence to the first respondent, advised that he believed he had 28 days in which to lodge his review application (as opposed to the actual 21 days allowed). He also provided medical certification to the first respondent indicating he was, at the time, suffering from depression and anxiety which had affected his capacity to study. He also indicated that he could not, at the time, afford the review application fee.
There was no evidence supportive of his assertion that he was invited to lodge an amended application. In any event, because of the mandatory nature of the time limitation, the matters raised by the applicant by way of explanation and in support of a more favourable consideration of his position, unfortunately do not assist him. Neither the Act nor the Regulations confer any power on the Tribunal to conduct a review unless that review application has been properly lodged with it. To be properly before the Tribunal, the applicant must have complied with the mandatory time limitation. Accordingly, the application filed on 27 February 2008 must be dismissed.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of O'Dwyer FM
Associate:
Date: 29 August 2008
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