Hasan v Minister for Immigration - [2009] FMCA 1124

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HASAN & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 1124

MIGRATION – Review of MRT decision – whether letter notifying applicants of delegate’s decision complied with s.66 – where information brochure on how to lodge application for review was not enclosed with the letter – where this resulted in applicants not having the addresses of all places at which they could apply for review – whether Tribunal right to reject the application as being out of time.

Migration Act 1958 (Cth), ss.66, 494B, 137J
Education Services for Overseas Students Act 2000, s.20
Migration Regulations 1994

Zhan v Minister for Immigration [2003] FCA 327
Chan v Minister for Immigration [2003] FCA 1292
Pomare v Minister for Immigration [2008] FCA 458
Uddin v Minister for Immigration [2005] FMCA 841
Morsed v Minister for Immigration [2005] 88 ALD 90
Shao v Minister for Immigration [2007] 157 FCR 300
Maroun v Minister for Immigration [2009] FCA 1284

First Applicant:

MD KAZI MAHMUDUL HASAN

Second Applicant:

RONY RANI SAHA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 1731 of 2009

Judgment of:

Raphael FM

Hearing date:

12 November 2009

Date of Last Submission:

12 November 2009

Delivered at:

Sydney

Delivered on:

18 November 2009

REPRESENTATION

Counsel for the Applicant:

Mr P Reynolds

Solicitors for the Applicant:

Parish Patience Immigration Lawyers

Counsel for the Respondents:

Mr Y Shariff

Solicitors for the Respondents:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,850.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1731 of 2009

MD KAZI MAHMUDUL HASAN

First Applicant

RONY RANI SAHA

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

On 28 October 2008 a delegate of the Minister advised Mr Hasan and Ms Saha that their applications for skilled (Provisional) (Class CC) visas, made on 5 February 2008, were refused. The decision was communicated in an emailed letter to their migration agent, Mr Bitel. The letter is produced at [CB 111-113]. It is not disputed that Mr Bitel was the authorised recipient of the applicants or that sending the letter to him in this way complied with the Migration Act 1958 (Cth) (the “Act”) and Regulations. However, it is argued that the form of the letter was not in compliance with s.66 of the Act and, in particular, s.66(2)(d)(iv). Subsections (1) and (2) of s.66 are set out below:
“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.
(2) Notification of a decision to refuse an application for a visa must:
(a) if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa--specify that criterion; and
(b) if the grant of the visa was refused because a provision of this Act or the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Hasan v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] FMCA 1124
Decision Date: 18 November 2009

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Hasan v Minister for Immigration was heard and determined. The applicants, Mr Hasan and Ms Saha, had their applications for skilled (Provisional) (Class CC) visas refused by a delegate of the Minister for Immigration on 28 October 2008. They sought judicial review of this decision, arguing that the refusal letter did not comply with statutory requirements regarding the notification of the right to review the decision. Specifically, the applicants contended that the letter did not adequately inform them of the various methods and locations for lodging a review application, as required by s.66(2)(d)(iv) of the Migration Act 1958 (Cth). The respondents, the Minister for Immigration and the Commonwealth of Australia, defended the decision on the basis that the notification was compliant with the Act and Regulations.

The central legal issue was whether the refusal letter sufficiently notified the applicants of their right to review the decision, as mandated by s.66(2)(d)(iv) of the Act. This section requires that the notification include details on how and where the review can be lodged. The applicants argued that the letter was deficient because it did not include a brochure detailing the review process, which was only mentioned but not attached. The respondents contended that the letter provided sufficient information regarding the review process, including the time limits and locations for lodging the application.

The Court found that the refusal letter did not comply with the statutory requirement to provide a full and accurate description of the review process. The omission of the brochure detailing the various methods and locations for lodging a review application meant that the applicants were not fully informed of their rights. Consequently, the Court allowed the application for judicial review, quashed the decision to refuse the visa applications, and remitted the matter to the delegate for reconsideration in accordance with the Court's reasons.

The orders of the Court were that the application for judicial review was dismissed in terms that did not affect the substantive merits of the visa applications. The applicants were directed to pay the respondents' costs, assessed at $5,850.00.

Orders

Orders of the court

Application dismissed.

Applicant to pay the First Respondent’s costs assessed in the sum of $5,850.00.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 28 October 2008 a delegate of the Minister advised Mr Hasan and Ms Saha that their applications for skilled (Provisional) (Class CC) visas, made on 5 February 2008, were refused. The decision was communicated in an emailed letter to their migration agent, Mr Bitel. The letter is produced at [CB 111-113]. It is not disputed that Mr Bitel was the authorised recipient of the applicants or that sending the letter to him in this way complied with the Migration Act 1958 (Cth) (the “Act”) and Regulations. However, it is argued that the form of the letter was not in compliance with s.66 of the Act and, in particular, s.66(2)(d)(iv). Subsections (1) and (2) of s.66 are set out below: “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. (2) Notification of a decision to refuse an application for a visa must: (a) if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa--specify that criterion; and (b) if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa--specify that provision; and (c) unless subsection (3) applies to the application--give written reasons (other than non‑disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and (d) if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500--state: (i) that the decision can be reviewed; and (ii) the time in which the application for review may be made; and (iii) who can apply for the review; and (iv) where the application for review can be made.” Pursuant to reg.215(3) of the Migration Regulations 1994 (Cth), the Minister was required to notify the applicant of a decision to refuse a grant of visa by one of the methods specified in s.494(B) of the Act and that section permits transmission by email and provides that if a document is given to a person by a method contained in subsection 494B(5), the person is taken to have received the document at the end of the day upon which it is transmitted. The letter addressed to the applicants includes a section on review rights which in the case of these applicants is in the following form:“Review RightsApplicants are entitled to apply for a review of this decision. If an applicant decides to exercise their review rights, they have a period of 21 calendar days after the applicant is taken to have been notified of this decision to apply to the Migration Review Tribunal.As this decision has been sent by email, you will be deemed to have received this letter today.This time-limited review period is prescribed in law and an application for review may not be accepted after that date. For visa applications made in Australia an application for review of a decision to refuse to grant a visa can only be made if the visa applicant is in the migration zone.If a valid application for review of this decision is lodged then any bridging visa currently held in respect of this application will remain in effect while the review application is under consideration.Applications for review can be lodged in person at any registry of the Migration Review Tribunal (MRT).Applicants in New South Wales, Queensland, the Australian Capital Territory or the Northern Territory can post or fax their applications to the New South Wales registry of the MRT. Applicants in Victoria, South Australia, Western Australia or Tasmania can post or fax their applications to the Victorian registry of the MRT.Applicants in immigration detention may also lodge their application by giving the completed application form and any applicable fee to a departmental officer at a detention centre or at an office occupied by an officer of the department at an airport. This must be done at least on e working day before the expiry of the applicable time limit.The enclosed brochure Migration Review Tribunal provides more information about the review processes and where applications for review can be lodged. Information about merits review is also available form the MRT on their website at of applicationsApplications for review can be lodged at the following registries:Registries of the MRTNew South Wales VictoriaLevel 11, 83 Clarence Street Level 12, 460 Lonsdale StreetSydney NSW 2000 Melbourne VIC 3000Telephone (02) 9276 5000 Telephone (03) 8600 5900Fax (02) 9276 5599 Fax (03) 8600 5801”I am satisfied that the brochure referred to in this section of the letter was not enclosed. That brochure which is annexed to the affidavit of Trilaksono Soeryoatmodjo dated 28 October 2009 and filed in this court has a section entitled:“How do I lodge my application?That is expressed in the following form:“Applications can be lodged in person at the New South Wales or Victorian registries of the Migration Review Tribunal, or at the Queensland, South Australian or Western Australian registries of the Administrative Appeals Tribunal. Applications can be lodged between 9am and 4.30pm in all locations.Registries of the Migration Review Registries of the AdministrativeTribunal Appeals Tribunal New South Wales QueenslandLevel 11, 83 Clarence Street Level 4, Harry GibbsSydney NSW 2000 Commonwealth Law CourtsGPO Box 1333 BuildingSydney NSW 2000 119 North QuayPhone (02) 9276 5000 Brisbane QLD 4000Fax (02) 9276 5599 Victoria South AustraliaLevel 12, 460 Lonsdale Street 11th Floor, 91 Grenfell StreetMelbourne VIC 3000 Adelaide SA 5000P O Box 14158 Melbourne VIC 8001 Western AustraliaPhone (03) 8600 5900 Level 5, 111 St Georges StreetFax (03) 8600 5801 Perth WA 6000 Phone (08) 9327 7200 (metropolitan area) 1300 366 700 (country areas) Fax (08) 9327 7299”

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.