HAQUE v Minister for Immigration - [2006] FMCA 55

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HAQUE v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 55

MIGRATION – Student Visa – review of Migration Review Tribunal decision refusing to accept application filed out of time – whether error of law.

Migration Act 1958, ss.5, 66(1), 338(2), 347(1)(b), 348, 494B(4), 494C(4)
Migration Regulations 1994, sub-reg.2.16(3), para.4.10(1)(a)
Acts Interpretation Act 1901, s.36(1)
Public Holidays Act 1993 (Vic), ss.6, 7, 8

Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 305
Singh v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 557
Al Chaar v Minister for Immigration and Multicultural Affairs [2000] FCA 941
Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386

Applicant:

DALIA HAQUE

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 231 of 2005

Judgment of:

McInnis FM

Hearing date:

5 October 2005

Delivered at:

Melbourne

Delivered on:

31 January 2006

REPRESENTATION

Applicant:

In person

Counsel for the Respondents:

Mr. R. Knowles

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The Application filed 28 February 2005 be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $6,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 231 of 2005

DALIA HAQUE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

By an application filed 28 February 2005, the Applicant seeks judicial review of a decision made by the Migration Review Tribunal (“the Tribunal”) dated 1 February 2005.
In a letter dated 3 February 2005 (Court Book page 42) advice was given to the Applicant's authorised recipient that an application received by the Tribunal on 21 January 2005 seeking review of a delegate’s decision was not accepted or considered as it was received outside the time limit for making an application.
The application filed in this Court seeks judicial review in relation to the decision of the Tribunal refusing to accept an application pursuant to the Migration Act 1958 (“the Act”) against a decision of a delegate of the First Respondent made on 17 December 2004. The delegate's decision had refused to grant the Applicant a student visa.
The Applicant who is a citizen of Bangladesh, had lodged with the First Respondent's Department an application for a student visa on 15 November 2004. The delegate's decision refusing to grant the student visa was forwarded to the Applicant by letter dated 17 December 2004. The decision record itself is dated 17 December 2004.
In the letter dated 17 December 2004, the Applicant in part was advised as follows:-
“The application has been refused. The reasons for the decision are explained in the attached decision record.
If you disagree with the decision you may apply for it to be reviewed by the Migration Review Tribunal (MRT). Please note that, if you decide to exercise this right of review, you must lodge a review application with the MRT no later than 21 days after receiving this notification*. Enclosed please find a leaflet with information about review.”
The leaflet with information about review was not provided in the Court Book. However, included in the letter marked with the asterisk appears the following:-
“*If this notification is posted, you are deemed to have received it 7 working days after the date shown on it. If it is delivered by hand or by fax, you are deemed to have received it on the day of actual delivery.”
It is not disputed in the present case that on 21 January 2005, the Applicant lodged with the Tribunal an application for review of the delegate's decision. In the eligibility checklist dated 1 February 2005, a Senior Member of the Tribunal has agreed with the reasoning and made a finding that the application is ineligible. The reasoning appears to be provided by an officer who has not signed the eligibility checklist dated 1 February 2005, though whose name appears on that document.
Under the heading "OTHER INFORMATION/COMMENTS" the following appears in the eligibility checklist:-
“On 17 December 2004 Ms. Dalia HAQUE’s Student (Temporary) (Class TU) visa, subclass 572 was refused (T1,f.8-11).
On 21 January 2005 she lodged an application for review with the Tribunal against the decision to refuse her a subclass 572 visa (T1,f.1-7). In the Decision Record the review applicant was advised that she had 21 (CDs) +7 (WDs) to lodge an application for review. The review applicant had until Thursday 20 January 2005 to lodge an application for review (T1,f.15).
I therefore find that the application is ineligible for review as the review applicant has failed to meet the prescribed time limits in accordance with Section 347(1)(b) of the Act.”
In the eligibility checklist, it is noted under the heading "TIME LIMITS" that the “Date of notification of decision to be reviewed” was 17 December 2004 and that the “Date of receipt by MRT” was 21 January 2005. Unfortunately, it appears that on the time frame calculated by the Officer, verified as being correct by the Senior Member of the Tribunal, the Applicant's application was deemed to be out of time as it was one day late. The non-compliance with the prescribed time limit occurred over the Christmas/New Year vacation period.

Relevant Legislation

It is not necessary to set out the requirement for an Applicant to be notified of a decision. The relevant provision setting out the time limit is identified in the earlier extract from the eligibility checklist as being s.347(1)(b) of the Act which provides as follows:-
“(1)(b) be given to the Tribunal within the prescribed period, being a period ending not later than:
if the MRT-reviewable decision is covered by subsection 338(2),(3),(3A),(4) or (7A) – 28 days after the notification of the decision; or
if the MRT-reviewable decision is covered by subsection 338(5),(6),(7) or (8) – 70 days after the notification of the decision; or
if the MRT-reviewable decision is covered by subsection 338(9) – the number of days prescribed, in the respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decisions; and”
Relevantly, para.4.10(1)(a) of the Migration Regulations 1994 (“the Regulations”) provides 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.”
It is also relevant to note sub-s.36(1) of the Acts Interpretation Act 1901 states that:-
“(1) 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.”

Submissions

The Respondent submitted that in this instance there is no proper basis for judicial review. It notes in the Applicant's complaint that she had sought advice from a Tribunal officer, which indicated that she could lodge the appeal to the Tribunal on 21 January 2005, and otherwise relies upon the rules of natural justice. It was contended that it does not provide a basis for judicial review, nor does it disclose that the Tribunal's decision is affected by jurisdictional error.
It was argued that the Applicant's application for review of the delegate's decision was lodged outside the applicable statutory limit. The delegate's decision to refuse the Applicant a student visa was an MRT reviewable decision pursuant to s.338(2) of the Act. Therefore, it was argued pursuant to para.347(1)(b) of the Act and para.4.10(1)(a) of the Regulations, the Applicant was required to lodge her review application with the Tribunal within the period between the receipt of the notice of the delegate's decision and the end of 21 days after the day on which the notice was received.
It was argued there is no evidence to establish that the delegate's decision was not sent in accordance with the requirements of sub-s.66(1) and 494B(4) of the Act which provide as follows:-

“MIGRATION ACT 1958 - SECT 66
Notification of decision
(1) 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.”
“MIGRATION ACT 1958 - SECT 494B
Methods by which Minister gives documents to a person
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.”

Further, it was argued there was no evidence to establish the delegate's decision was not sent in accordance with sub-reg.2.16(3) of the Regulations. It was noted the Applicant does not submit that the delegate's decision was not dispatched within three working days of the date of the decision and the covering correspondence by prepaid post to the Applicant's last address for service or last residential address.
It was noted in the submissions that pursuant to sub-s.494C(4) of the Act the Applicant is taken to have received the delegate's decision seven working days after 17 December 2004. Sub-s.494C(4) of the Act provides as follows:-
“(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.”
In the present case there does not seem to be any issue taken in relation to the delegate's decision being forwarded by prepaid post, although, I note in passing that there has not been any evidence provided to support that assertion.
The Respondent further submits that pursuant to s.5 of the Act "working day" is defined as follows:-
“Working day, in relation to a place, means any day that is not a Saturday, a Sunday or a public holiday in that place.”
It was submitted and I accept that Public Holidays in Victoria are determined by reference to the Public Holidays Act 1993 (Vic) ("the Public Holidays Act"). Section 6 of the Public Holidays Act relevantly states that the following days are Public Holidays in Victoria:-
“(i) Christmas Day;
(j)The day after Christmas Day (Boxing Day) or the following Monday when Boxing Day is a Sunday.”
Pursuant to s.7 and 8 of the Public Holidays Act it was submitted that additional or substituted Public Holidays may be declared in the Victorian Government Gazette. Reference was made to page 407 of the Victorian Government Gazette (number G9, 26 February 2004) when the Victorian Minister for Small Business published a notice pursuant to s.8 of the Public Holidays Act in which she declared that Christmas Day Saturday 25 December 2004, was not a public holiday; and appointed Tuesday 28 December 2004, as a public holiday to apply throughout Victoria.
The Respondent argued that in 2004, Boxing Day fell on Sunday 26 December 2004, presumably by reference to a calendar not tendered in Court, and that therefore, pursuant to s.6 of the Public Holidays Act, Monday 27 December 2004, was a Public Holiday.
It was argued that pursuant to sub-s.494C(4) of the Act, the Applicant was therefore deemed to have received the delegate's decision on 30 December 2004. Accordingly, it was argued that pursuant to sub-s.347(1)(b) of the Act and para.4.10(1)(a) of the Regulations, the Applicant was required to lodge her review application with the Tribunal no later than 20 January 2005.
It was submitted that the Applicant's review application, being lodged with the Tribunal on 21 January 2005, was outside the statutory time limit stipulated by para.347(1)(b) of the Act and para.4.10(1)(a) of the Regulations.
It was noted that if the calculations and application of the relevant law referred to by the Respondent were found by the Court to be incorrect, then the First Respondent conceded that there may be a basis upon which the Court could intervene and set aside the Tribunal decision, given that it would be an error of law having incorrectly applied the relevant legislation. It was otherwise argued, however, that the terms of sub-s.347(1) of the Act are mandatory.
The application, it was argued, for review must be given within the prescribed period. There is no statutory discretion given to the Tribunal to accept applications for review made outside the prescribed period (see Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 305 at [10], [43], [45] and [47]).
It was argued that if the review application was not properly made under s.347 of the Act, the Tribunal had no power to then carry out review (see s.348 of the Act and see also Singh v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 557 at [8]). Accordingly, it was argued the Tribunal's decision was unable to consider the Applicant's review application and does not disclose any jurisdictional error.
It was further argued in this case that estoppel does not apply to the Tribunal's decision, even if officers of the First Respondent's Department represented to the Applicant that she could lodge her application for review on a date after 20 January 2005. This issue is important in circumstances where there is currently no affidavit evidence from the Applicant but a mere assertion in relation to that matter.
I indicated during the hearing that if it became relevant to obtain evidence then I would permit the Applicant the opportunity of providing affidavit evidence and likewise of course provide an opportunity to the Respondents to file and serve any affidavit material in reply. It is submitted by the Respondent that it is not necessary in the circumstances to receive any affidavit material, as estoppel does not apply in circumstances of this kind.
Reliance was placed upon the decision of Merkel J in the matter of Al Chaar v Minister for Immigration and Multicultural Affairs [2000] FCA 941, and in particular the following paragraphs which I accept should be applied to the facts of the present case:-
“4.The Tribunal found that, as the applicant had not made his application within the prescribed period, the application must fail. It is plain that the Tribunal did not err in law nor did it commit any other reviewable error in arriving at that conclusion.
5.The applicant claimed that the application for the visa he sought was “delayed” because he had not been given “appropriate information” by the Department of Immigration and Multicultural Affairs (“the Department”). In that regard the applicant relied on a conversation between his representative, Mr Abbouche, and the Department. Mr Abbouche told the Tribunal that, some time after the application of the applicant for a Protection Visa had been refused in January 1997, he telephoned the Department on behalf of the applicant and asked if there was any further action the applicant could take to obtain a visa. Mr Abbouche told the Tribunal that the did not know to whom he had spoken but that he was told there was nothing more the applicant could do. He said that the and the applicant accepted the advice at face value and that was the reason why the applicant’s application for a Change in Circumstance visa was not lodged until 7 August 1998.
6.Even if the Tribunal had accepted the applicant’s explanation for his delay it would not assist him as his failure to comply with the prescribed criterion rendered him ineligible to obtain the visa he was seeking. It is well established that an estoppel will not operate so as to relieve against non-compliance with a requirement that the statute intends shall be satisfied: see Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 at 392, Minister for Immigration and Multicultural Affairs v Polat (1995) 57 FCR 98 at 104-107 and B v Minister for Immigration and Multicultural Affairs (1997) 50 ALD 120 at 131-132.”
It is noted from the decision of Merkel J that his Honour refers, amongst others, to his own decision in the matter of Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 at 392.
It is submitted and I accept, based upon the relevant authorities, that whether or not the Applicant can establish that the Tribunal misrepresented the time limit for her to make her review application, estoppel cannot operate directly or indirectly to confer power on a statutory body which it does not otherwise have. I further accept that the doctrine of estoppel cannot be relied upon as relief against non-compliance with a requirement that a statute intends to be satisfied.
That does not mean however, that where the time limit prescribed has not been complied with, is where the Court finds as a matter of fact the application has been filed within time, contrary to a finding by the Tribunal that the application has not been filed within time that the decision cannot be set aside. It is clear, that the time limits are, in my view, mandatory and that estoppel will not apply having regard to the relevant authorities.
In the event that the Tribunal has merely applied relevant time limits and has failed to notify an Applicant that it intends to apply relevant time limits and deem an Applicant to be ineligible on the basis of failure to comply with those time limits, then I further accept in those circumstances there would not be a denial of procedural fairness of a kind which would permit this Court to set aside the decision.
In any event, it is clear in the present case, as submitted by the Respondent, that the letter dated 3 February 2005 from the Tribunal to the Applicant's then representative does at least bring to the notice of the Applicant the decision made and in the circumstances appears to alert the Applicant and/or her then adviser in relation to the issue, which in turn generated a response dated 18 February 2005 from the Applicant's agent.
In that response, the agent challenges the calculation of the time in this instance. It was submitted that the application was lodged within the prescribed time. In that letter the author states:-
“The definition I have found advises "a) if the notice 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 notice; or"(my emphasis)
I take after to mean that counting starts on the next day so the 7 working days should start on Monday the 20th with 7 working days expiring on 31^st December giving the expiry date as the 21st. This is supported by the definition in the MSI 350 re counting days for another purpose.
“8.2.13
In determining how many days a protection visa applicant spent in Australia in the 21 months immediately preceding the date they applied for the protection visa:
·only whole days are counted (My emphasis) Therefore the day the applicant arrived in Australia and the day the protection visa application is made do not count;
·Saturday, Sunday and public holidays are counted;
·the 45 days is a cumulative period; hence if an applicant has been in Australia on more than one occasion in the 12 month period, all whole days spent in Australia on each occasion are counted; and
·if the 45th whole day is a Saturday, Sunday or public holiday, and they apply for the protection visa on the next working day, they will not be eligible for a bridging visa with permission to work.”

It will be clear from that extract from the correspondence that a great deal of that material is irrelevant and does not necessarily assist in the calculation of the days applicable in the present case. In my view, the only issue that remains for the Court to consider is whether indeed the correct number of days had been referred to by the Respondent and then to calculate whether, on the basis of the relevant sections and regulations, the time period is correctly referred to as being one which expires on 20 January 2005 rather than 21 January 2005.
Based upon the Respondents submission and having regard to the relevant legislation, it is clear to me that the application for review of the delegate’s decision should have been filed on or before 20 January 2005, and regrettably in this instance it was filed one day late. Accordingly, in my view, I can see no error in the calculation of the days and I further find and accept estoppel does not apply in relation to any alleged advice given to the Applicant or the Applicant’s advisers by a Departmental officer. It is not necessary to receive evidence in relation to that issue and I am satisfied as a matter of law that it will not benefit the Applicant in this instance. In my view, even accepting the assertion of the Applicant without further evidence concerning the alleged advice then as a matter of law unfortunately that does not assist the Applicant in this application.
In the circumstances it follows that the application should be dismissed with costs.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of McInnis FM

Deputy Associate: Brooke Evans

Date: 31 January 2006