Haque v Minister for Immigration
[2009] FMCA 705
•20 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HAQUE v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 705 |
| MIGRATION – Whether Migration Review Tribunal had jurisdiction – application made to Migration Review Tribunal out of time. |
| Migration Act 1958 (Cth), ss.66, 347(1), 347(1)(b)(i), 477, 494B, 494C(4)(a) Migration Regulations 1994 (Cth), regs. 2.16, 4.10(1)(a) |
| Jing v Minister for Immigration [2007] FMCA 747 Keo v Minister for Immigration (2008) 222 FLR 53; [2008] FMCA 1502 Minister for Immigration and Citizenship v SZKKC (2007) 159 FCR 565; [2007] FCAFC 105 Saurabh v Minister for Immigration and Citizenship [2007] FCA 909 Taylor v Minister for Immigration [2005] FMCA 281 |
| Applicant: | AHM AHSANUL HAQUE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 27 of 2009 |
| Judgment of: | Lucev FM |
| Hearing date: | 20 July 2009 |
| Date of Last Submission: | 20 July 2009 |
| Delivered at: | Perth |
| Delivered on: | 20 July 2009 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr S. Thackrah |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The applicant have leave to extend time in which to file his application to this Court to the date of actual filing of the application.
The application to this Court be dismissed.
The applicant pay the first respondent’s costs in the sum of $5,865.00 by 30 November 2009.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 27 of 2009
| AHM AHSANUL HAQUE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore reasons edited from transcript)
This is an application made on 10 March 2009 for judicial review of a decision of the Migration Review Tribunal[1] dated 1 September 2008.[2] Although the application was made outside the 35-day time limit under s.477 of the Migration Act 1958 (Cth),[3] the first respondent, the Minister for Immigration and Citizenship,[4] does not oppose orders sought by the applicant, Mr Haque, for extension of time in which to file this application to this Court to the date of filing of the application.
[1] “the Tribunal”.
[2] “Tribunal decision”.
[3] “Migration Act”.
[4] “the Minister”.
That concession is properly made as the Tribunal did not, apparently, physically deliver the Tribunal decision to the applicant, thereby rendering the s.477 time limit ineffective. The Court refers to the judgment of the Full Court of the Federal Court in Minister for Immigration and Citizenship v SZKKC.[5] There will there be an order the applicant have leave to extend the time in which to file his application to this court to the time of actual filing.
[5] (2007) 159 FCR 565; [2007] FCAFC 105 (“SZKKC”).
The real issue in these proceedings, however, is whether the Tribunal had jurisdiction to hear the application made to it by the applicant, Mr Haque. The Tribunal concluded that it had no jurisdiction because the application to it was received outside of the mandatory time limit prescribed by s.347(1)(b)(i) of the Migration Act and reg.4.10(1)(a) of the Migration Regulations 1994 (Cth).[6]
[6] “Migration Regulations”.
The relevant legislation is, as the Court has indicated, s.347(1) of the Migration Act which provides that:
An application for review of an MRT-reviewable decision must:
(a) be made in the approved form; and
(b) be given to the Tribunal within the prescribed period being a period ending not later than:
(i) if the MRT-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A) ‑ 28 days after the notification of the decision;
…
The prescribed period is then set by reg.4.10(1)(a) of the Migration Regulations as being within or at the end of 21 days after the day on which the notice is received, so that the period starts when the applicant receives notice of a decision and ends at the end of 21 days after the date on which the notice is received. It is clear that 21 days is the prescribed period, and the Court refers to this Court’s judgments in Keo v Minister for Immigration,[7] Taylor v Minister for Immigration,[8] Jing v Minister for Immigration,[9] and a judgment of the Federal Court sitting on appeal from this Court in Saurabh v Minister for Immigration and Citizenship.[10]
[7] (2008) 222 FLR 53; [2008] FMCA 1502. (“Keo”)
[8] [2005] FMCA 281 (“Taylor”).
[9] [2007] FMCA 747 (“Jing”).
[10] [2007] FCA 909 (“Saurabh”).
The other relevant legislation is ss.66, 494B, and 494C(4)(a) of the Migration Act and reg.2.16 of the Migration Regulations. Their effect is accurately described in the Tribunal’s decision, which provide as follows:[11]
9. Section 66(1) provides that when the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way. Regulation 2.16 provides that for the purposes of s.66(1), the Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in s.494B. Section 494B specifies alternative methods for giving a document to a person.
10. One of the methods specified in s.494B consists of the Minister dispatching the document within 3 working days of the date of the document by prepaid post or other prepaid 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). If a document is given to a person by this method and the document was dispatched from a place in Australia to an address in Australia, the person is taken to have received the documents 7 working days (in the place of the address) after the date of the document: s.494C(4)(a). This will be so even if the document was never in fact received. Therefore, if the notice of a decision to refuse to grant a visa was sent in accordance with s.494B, from a place in Australia to an address in Australia, the prescribed period within which a review application must be lodged with the tribunal commences 7 working days after the date of the notice.
[11] CB 102-106, specifically paras.9-10 at CB 105.
In considering this matter, the relevant facts are not really challenged by the applicant. The applicant, both on the grounds of application and the affidavit sworn on 10 March 2009, sets out the various circumstances which faced him and has explained to the Court the manner in which he interpreted the letter from the delegate of the Minister, dated 30 January 2008, being the letter deciding to refuse the grant of the visa to him.[12]
[12] CB 54-55 (“delegate’s decision notice”).
The effect of the legislation is described in the Tribunal’s decision and the relevant facts are set out as follows:[13]
17. The Tribunal finds that the applicant is seeking review of an MRT-reviewable decision covered by s.338(2) and that the applicable prescribed period is 21 days, starting when the applicant was notified of the decision: s.347(1)(b)(i) and r. 4.10(1)(a).
18. The Tribunal is satisfied that the contents of the delegate’s decision notice complied with the requirements of s.66(2).
19. The material before the Tribunal indicates that the applicants did not give the Minister written notice under s.494D of the name and address of an authorised recipient and that the decision notice, dated 30 January 2008, was sent by prepaid post on 30 January 2008 from a place in Australia to the applicants at an address in Australia, being the last residential address provided to the Minister by the applicants’ for the purposes of receiving documents.
20. The Tribunal finds that the decision notice was dispatched within 3 working days of the date of the letter to the correct address, in accordance with s.66(1) and s.494B(4). Therefore, the applicants are taken to have received the notice on 8 February 2008, being 7 working days after the date of the notice.
21. The Tribunal finds that the applicants were properly notified of the delegate’s decision and are taken to have been notified on 8 February 2008. Therefore, the prescribed period of 21 days within which the application for review could be lodged ended on 29 February 2008.
22. The application for review was not received by the Tribunal until 7 March 2008, after the prescribed period had expired.
23. As the application for review was received by the Tribunal outside the mandatory time limit, it is not a valid application and the Tribunal has no jurisdiction in this matter.
[13] Tribunal’s decision at paras.17-23, CB 106.
As the Court has indicated, the essential facts in relation to the decision that the Tribunal made are not challenged, particularly the fact of the receipt of the letter, and indeed that letter is of course deemed to have been received on 8 February 2008, in any event, by reason of the application of the relevant legislation. The 21-day period then extends the time for lodgement of the application through to 29 February 2008. As the Court indicated a little earlier, the applicant has explained to the Court his interpretation of the delegate’s decision notice.[14]
[14] CB 54-55.
Unfortunately, because of the terms of the legislation, a misinterpretation of that letter by the applicant does not assist him and does not vest the Tribunal with jurisdiction if the application to it is made outside of the relevant time period, nor do the difficulties that the applicant had when he retained the services of a lawyer assist him. As is pointed out by counsel for the respondents, it appears that that engagement of a lawyer was put in place after the date on which the application to the Tribunal was made and could not have affected the date on which the application was made, and did not affect it in any event.
Thus the Tribunal, in the Court’s view, had before it adequate evidence to arrive at the factual conclusions that it did, and in particular to arrive at the conclusion that the delegate’s decision notice was:
a)dispatched within three working days;
b)sent to the correct address, being 3/309 Harborne Street, Glendalough WA 6016;
c)sent from an address within Australia to an address within Australia, being the correct address and the last residential address provided by the applicant to the Minister; and
d)as the Court has indicated, by reason of the terms of the Migration Act, it is a letter which is taken to have been received by the applicant on 8 February 2008.
Against that factual background, and bearing in mind the 21-day time limit which then runs from 8 February 2008, the fact that the application was not received by the Tribunal until 7 March 2008 means that, as a matter of fact, it falls outside of the 21-day prescribed period for making an application to the Tribunal.
It follows therefore that the Tribunal did not have jurisdiction to entertain the application. In those circumstances, the Tribunal was correct to find that it had no jurisdiction and it follows that Mr Haque’s application must be dismissed.
The Court will therefore make a further order that the application to this Court be dismissed.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Lucev FM
Deputy Associate: Susan Dinon
Date: 23 July 2009
0
7
2