Hu v Minister for Immigration

[2014] FCCA 312

FEDERAL CIRCUIT COURT OF AUSTRALIA

HU v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 312

Catchwords:
MIGRATION – Judicial review – Migration Review Tribunal – student visa – cancellation for breach of condition – application for review out of time – whether Tribunal had jurisdiction to hear application for review – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.127, 338(3), 347(1)(b) and (5), 494A, 494B, 494C

Migration Regulations1994 (Cth), regs.2.45, 2.55(3)(a) and (5), 4.10(1)

Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1
Cheng v Minister for Immigration & Citizenship [2011] FMCA 461
Diamant & Ors v Minister for Immigration & Anor [2014] FCCA 21
Minister for Immigration & Citizenship v Li (2013) 87 ALJR 618; [2013] HCA 18
Mushtaq v Minister for Immigration & Anor [2013] FCCA 198
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1; [2004] FCAFC 263
Singh & Anor v Minister for Immigration & Anor (2011) 190 FCR 552; [2011] FCAFC 27
SZIUK v Minister for Immigration & Citizenship [2007] FCA 226

Applicant: JIA TAO HU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: PEG 196 of 2013

Judgment of: Judge Antoni Lucev

Hearing date: 25 February 2014

Date of Last Submission: 25 February 2014

Delivered at: Perth

Delivered on: 25 February 2014

REPRESENTATION

For the Applicant: No appearance

Counsel for the First Respondent: Mr B Dube

Solicitors for the First Respondent: Sparke Helmore

For the Second Respondent: Submitting appearance, save as to costs

ORDERS

1. The name of the First Respondent is amended to the “Minister for Immigration & Border Protection”.

2. That the application be dismissed.

3. That the Reasons for Judgment are to be published electronically from Chambers at 4.00pm this afternoon.

4. The Applicant to pay the First Respondent’s costs in the sum of $5800 by 25 March 2014.

AND THE COURT NOTES THAT Order (1) has been made administratively of the Court’s own motion.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 196 of 2013

JIA TAO HU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By an application filed on 1 August 2013, the applicant seeks judicial review of a decision of the Migration Review Tribunal[1] made on 1 July 2013.[2]

   [1] “Tribunal”.

   [2] “Tribunal Decision”. The Tribunal Decision appears at Court Book (“CB”) 54-56.

2. When the matter was heard earlier this afternoon the applicant failed to appear, the matter having been called in and out of the courtroom.

Factual background

1. The applicant is a citizen of China.

2. On 24 April 2013 a delegate of the first respondent, then the Minister for Immigration & Citizenship, now the Minister for Immigration & Border Protection,[3] cancelled the applicant’s Student Visa under s.116 of the Migration Act 1958 (Cth),[4] for a breach of condition 8202 of the applicant’s Student Visa.[5] The particular reason for the cancellation was for not achieving satisfactory course progress.[6]

   [3] “Minister”.

   [4] “Migration Act 1958”.

   [5] CB 35-37 (“Delegate’s Decision”).

   [6] CB 35-37.

Tribunal proceedings

1. On 15 May 2013 the applicant lodged an application for review to the Tribunal.[7]

   [7] CB 38-48.

2. On 24 May 2013 the Tribunal wrote to the applicant and advised that his application was not valid because it was not lodged within the relevant time limit. The Tribunal explained that the relevant limit for lodging the application was seven working days from the day the applicant was taken to have been notified of the Delegate’s Decision. The Tribunal invited the applicant to comment on whether a valid application was to be made, in writing, within 14 days from receiving the invitation to comment from the Tribunal.[8]

   [8] CB 51.

3. On 18 June 2013, the applicant replied to the Tribunal’s letter of 24 May 2013 by sending a facsimile to the Tribunal stating that “the immigration officer said I have 21 days that can review, and I think with 21 days my application had been lodged”.[9]

   [9] CB 52.

Tribunal Decision

1. The Tribunal found that the applicant was notified of the Delegate’s Decision by letter dated 24 April 2013, given to the applicant by hand, and in respect of which the Tribunal was satisfied that the applicant had been notified of the Delegate’s Decision in accordance with statutory requirements.[10]

   [10] CB 56 at para.4.

2. The applicant signed the Notification of Decision form as having been received by him at 11.57am on 24 April 2013, being the same day and time at which the Delegate signed the Delegate’s Decision.[11]

   [11] CB 35.

3. Notification of the Delegate’s Decision had to be made by a prescribed method. One of the methods prescribed was for the Delegate’s Decision to be given to the applicant by hand, and in those circumstances, the applicant was taken to have received the Delegate’s Decision when given to the applicant by hand.[12]

   [12] Migration Act 1958, ss.127 and 494A and Migration Regulations1994 (Cth), regs.2.45 and 2.55(3)(a) and (5) (“Migration Regulations 1994”).

4. The Notification of Decision form, under a section headed “Review Rights” clearly indicates that a person who has had their visa cancelled has “seven (7) working days” after the day on which the notification decision was received to apply for review of the decision to the Tribunal.[13] The Tribunal Decision referred to those review rights as set out in the Notification of Decision.[14]

   [13] CB 35.

   [14] CB 55 at para.5.

5. The Tribunal also considered the applicant’s facsimile asserting that an immigration officer had told him that he had 21 days to seek a review.[15] The Tribunal noted that the applicant had provided no evidence to support that statement.[16]

   [15] CB 55 at para.5.

   [16] CB 55 at para.5.

6. The Tribunal noted that the application for review was lodged with the Tribunal on 15 May 2013.[17]

   [17] CB 55 at para.2

7. In accordance with s.494C of the Migration Act 1958, the Tribunal found that the applicant was taken to have been notified of the decision on 24 April 2013, when given the Delegate’s Decision by hand. The Tribunal therefore found that the prescribed period within which the application for review of the Delegate’s Decision could be made ended on 6 May 2013. The Tribunal found that as the application for review of the Delegate’s Decision had not been received by the Tribunal until 15 May 2013, the application for review was not made within the seven working day time limit prescribed.[18] The Tribunal therefore found, and decided, that it did not have jurisdiction in the matter.[19]

   [18] Migration Act 1958, ss.347(1)(b) and 338(3) and Migration Regulations 1994, reg.4.10.

   [19] CB 55 at paras.6 and 7.

Consideration of grounds for judicial review

1. There are five grounds in the application for judicial review to this Court. Each is considered separately below.

Ground 1

1. Ground 1 is as follows:

   1.The Tribunal failed to exercise its jurisdiction in the matter an[d] incorrectly declared that it had no jurisdiction to hear the matter.

2. A person is taken to have received a document, such as the Delegate’s Decision, given to him by hand at the time of receipt.[20] The applicant was given the Delegate’s Decision on 24 April 2013, by hand, and he is therefore taken to have received the Delegate’s Decision on 24 April 2013.

   [20] Migration Act 1958, ss.494B(2) and 494C(2).

3. The Delegate’s Decision is an MRT-reviewable decision for the purposes of s.338(3) of the Migration Act 1958, and an application for a review of an MRT-reviewable decision to which s.338(3) of the Migration Act 1958 applies must be made within seven days after the notification of the Delegate’s Decision. Section 347(1)(b)(i) of the Migration Act 1958 provides for a period of 28 days for the making of an application for review of an MRT-reviewable decision under s.338(3) of the Migration Act 1958, but s.347(5) of the Migration Act 1958 provides that regulations made for the purposes of s.347(1)(b) of the Migration Act 1958 may specify different periods in relation to different classes of MRT-reviewable decisions. Regulation 4.10(1)(b) provides that the period in which an application for review of an MRT-reviewable decision must be made to the Tribunal for an MRT-reviewable decision mentioned in s.338(3) of the Migration Act 1958 is seven working days after the date on which the notice (of the Delegate’s Decision) is received. The applicant, therefore, had seven working days in which to apply to the Tribunal for a review of the Delegate’s Decision. That period expired on 6 May 2013. The application to the Tribunal was not made until 15 May 2013.

4. The Tribunal had before it adequate evidence to arrive at the factual conclusion that the Delegate’s Decision was given to the applicant by hand, which meant that, as a matter of fact, a subsequent application for review made on 15 May 2013 fell outside of the prescribed seven working day period for making an application to the Tribunal, which had expired on 6 May 2013. The Tribunal did not have power to enlarge time or jurisdiction to entertain the application.[21] It follows, therefore, that the Tribunal did not have jurisdiction to entertain the application for review of the Delegate’s Decision. In those circumstances, the Tribunal was correct to find that it had no jurisdiction. In those circumstances, ground 1 is not made out.

   [21] See Migration Act 1958, s.347(1)(b)(i) and (5) and Migration Regulations 1994, reg.4.10(1)(a); SZIUK v Minister for Immigration & Citizenship [2007] FCA 226 at para.12 per Tracey J.

Ground 2

1. Ground 2 is as follows:

   2.The Tribunal failed to take into account relevant considerations. It failed to consider that the applicant was misled or falsely induced into believing that he had sufficient time to apply for a review of his visa cancellation.

2. This ground of review must fail because the Tribunal did expressly consider the claim made by the applicant, and found it to be inconsistent with the notification of decision form (being the Delegate’s Decision), which the applicant signed, and which made clear that he had seven working days in which to lodge a notice of application for review.[22] The Tribunal also noted that the applicant failed to provide any evidence to support his claim that he had been misled or falsely induced into believing that he had further time to apply for a review of the Delegate’s Decision.[23]

   [22] CB 56 at paras.4-6.

   [23] CB 56 at para.5.

3. The Tribunal clearly took into account the applicant’s statement alleging that he had been misled or falsely induced to believe that he had more time in which to file the application for review of the Delegate’s Decision. The Tribunal made a decision in relation to that claim based on the evidence of:

   a)the seven days’ notice written into the notification of decision form given to the applicant; and

   b)the failure to provide any evidence to support the applicant’s claim that he was misled or falsely induced.

4. The applicant’s statement that he was misled or falsely induced is no more than a bare assertion. There are no details of when the alleged statement was supposed to have been made, by whom it was alleged to have been made, or what, in precise terms, was asked and answered. No contemporaneous note of the discussion by the applicant was produced, nor, seemingly, was there any request for any Departmental record to be produced, and there does not appear to have been any such record in evidence before the Tribunal, and there is none in the Court Book produced to the Court.

5. Given the notification in the Delegate’s Decision, and the paucity of evidence with respect to the applicant’s claim, it was open as a matter of fact for the Tribunal to make the decision it did as to when the applicant was notified of the Delegate’s Decision. That being a factual finding, it is not a matter for this Court to review upon judicial review. There is no error of law, let alone jurisdictional error, in making a wrong finding of fact.[24]

   [24] Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 579-580 per Gummow and Hayne JJ; [1999] HCA 14 at paras.195-197 per Gummow and Hayne JJ; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1 at 16-17 per Black CJ, French and Selway JJ; [2004] FCAFC 263 at paras.52-54 per Black CJ, French and Selway JJ.

6. In any event, incorrect advice from a Departmental officer does not establish jurisdictional error by the Tribunal.

7. In Singh & Anor v Minister for Immigration & Anor[25] the Full Court of the Federal Court found that administrative decision-makers did not have the power to alter the time frame for a review application set down by the Migration Act 1958.[26] The Full Court of the Federal Court held that administrative decision-makers had no legal authority to vary the prescriptions in the Migration Act 1958 or Migration Regulations 1994, even by express agreement with a visa applicant, and that their conduct, if they did so, could not have the effect of extending the relevant timetable.[27]

   [25] (2011) 190 FCR 552; [2011] FCAFC 27 (“Singh”).

   [26] Singh FCR at 565-566 per Keane CJ, Collier and Logan JJ; FCAFC at para.47 per Keane CJ, Collier and Logan JJ.

   [27] Singh FCR at 565-566 per Keane CJ, Collier and Logan JJ; FCAFC at para.47-48 per Keane CJ, Collier and Logan JJ.

8. In Cheng v Minister for Immigration & Citizenship[28] the Federal Magistrates Court having cited Singh said that:

   In other words, the time frame could not be extended by officers of the Department, the Tribunal or indeed by the Court. Even if such an impression had been conveyed to the applicant by a Departmental officer in error, that would not extend the time for review or otherwise give rise to jurisdictional error on the part of the Tribunal (see Singh at [49]).[29]

   [28] [2011] FMCA 461 (“Cheng”).

   [29] Cheng at para.55 per Barnes FM.

9. In Diamant & Ors v Minister for Immigration & Anor[30] this Court applied Singh and Cheng and found that no estoppel arose in relation to allegations of misleading advice and detrimental reliance upon advice from an officer of the Department.[31]

   [30] [2014] FCCA 21 (“Diamant”).

   [31] Diamant at paras.44-46 per Judge Lucev.

10. In the circumstances of this case any argument based on the purported acts of the officer of the Department must therefore fail. No officer of the Department could extend time, whether by direction, or by agreement with the applicant, or otherwise.

11. For the reasons set out above the Tribunal Decision is not reviewable by this Court and no jurisdictional error arises in respect of ground 2. In those circumstances, ground 2 is not made out.

Ground 3

1. Grounds 3 is as follows:

   3.The Tribunal’s actions were manifestly unreasonable. The above refusal or failure to consider such a number of important factors causes this decision to fall foul of the test in Wednesbury.

2. Unreasonableness, in the sense referred to in Associated Provincial Picture Houses Ltd v Wednesbury Corporation[32] has traditionally been viewed as an abuse of power by the repository of the power, and is an extremely confined doctrine requiring, for a decision to be held invalid, a purported exercise of power so unreasonable that no reasonable repository of the power could have made the decision concerned.[33] More recently, it has been held that in order to determine if the exercise of a statutory discretionary power is unreasonable in a Wednesbury sense, consideration is required of whether the dominant reason for the decision is outside the scope and purpose of the enactment or the policy considerations which legitimately form the exercise of the relevant discretionary power,[34] but the exercise of the power must still be in accordance with, and according to, the law.[35]

   [32] [1948] 1 KB 223 (“Wednesbury”).

   [33] Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35 per Brennan CJ, applied by this Court in Mushtaq v Minister for Immigration & Anor [2013] FCCA 198 at paras.31-32 per Judge F Turner.

   [34] Minister for Immigration & Citizenship v Li (2013) 87 ALJR 618; [2013] HCA 18 (“Li”).

   [35] Li ALJR at 630 per French CJ, 634 per Hayne, Kiefel and Bell JJ; HCA at para.26 per French CJ and para.47 per Hayne, Kiefel and Bell JJ.

3. The Tribunal had no discretion to exercise, and the question of unreasonableness did not actually arise. If it did, then the Tribunal’s actions here were entirely reasonable. Indeed, its finding that it had no jurisdiction was the only finding properly open to it. No jurisdictional error is established, and ground 3 is therefore not made out.

Ground 4

1. Ground 4 is as follows:

   4.There was a failure in procedure by the Tribunal. The Tribunal failed to allow the Applicant the option of further time to get evidence to support the issues raised in the hearing, including evidence that the applicant had received advice from the department that he had extra time to lodge an application.

2. In the absence of jurisdiction there was no need for the Tribunal to allow the applicant further time to obtain evidence to support issues raised in the hearing, including evidence that the applicant had received advice from the Department that he had extra time to lodge an application. Further evidence was irrelevant in the absence of jurisdiction, and, in any event, for reasons outlined above, erroneous advice from the Department does not establish jurisdictional error in the Tribunal Decision.

3. No jurisdictional error is established by ground 4, and ground 4 is not made out.

Ground 5

1. Ground 5 is as follows:

   5.The tribunal applied policy inflexible and failed to take into account the special merits of this matter. These include the failure to consider the applicant’s vulnerability and the likelihood that as an international student, he quite easily falls within the realms of someone who can either fraudulently or negligently [be] misled when it comes to the application of timeframes.

2. The Tribunal did not apply policy, inflexibly, or at all. The Tribunal applied the law to find that it had no jurisdiction, and had regard to the evidence, in any event, to establish the date the applicant was notified of the Delegate’s Decision, and to find that there was no evidence to support the statement concerning the applicant being misled or falsely induced by the Department. There was no basis for the Tribunal to consider the “special merits” of the applicant’s application in circumstances where the Tribunal did not have jurisdiction.

3. In the above circumstances, ground 5 establishes no jurisdictional error, and ground 5 is therefore not made out.

Conclusions and orders

1. The Court has concluded that the applicant has failed to make out any of the grounds of review, and failed to make out any jurisdictional error in the Tribunal Decision.

2. The Court made the following orders at hearing:

   a)the name of the first respondent is amended to the “Minister for Immigration & Border Protection”;

   b)that the application be dismissed;

   c)that the Reasons for Judgment are to be published electronically from Chambers at 4.00pm this afternoon; and

   d)the applicant to pay the first respondent’s costs in the sum of $5800 by 25 March 2014.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate: 

Date:  25 February 2014