ISLAM v Minister for Immigration

[2011] FMCA 815

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ISLAM & ANOR v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 815

MIGRATION – Application to review a decision of the Migration Review Tribunal that it did not have jurisdiction – whether Tribunal erred in finding that the review application was lodged outside the applicable time limit – validity and deemed receipt of notification of the delegate’s decision – where applicant claimed given incorrect advice by migration agent – no jurisdictional error.

Migration Act 1958 (Cth) ss.66, 347, 425, 494B, 494C, 494D
Migration Regulations 1994 (Cth) reg.2.16, 4.10

Minister for Immigration and Citizenship v SZLIX and Another (2008) 245 ALR 501; [2008] FCAFC 17
SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940
SZFDE and Others v Minister for Immigration and Citizenship & Another (2007) 232 CLR 189; [2007] HCA 35

First Applicant: SHAHIDUL ISLAM

Second Applicant: LAILA SHEIKH

First Respondent: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 838 of 2011

Judgment of: Barnes FM

Hearing date: 6 October 2011

Delivered at: Sydney

Delivered on: 6 October 2011

REPRESENTATION

Applicant: In person

Solicitors for the Respondent: DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The applicants pay the costs of the first respondent fixed in the sum of $3,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 838 of 2011

SHAHIDUL ISLAM

First Applicant

LAILA SHEIKH

Second Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This is an application for review of a decision of the Migration Review Tribunal dated 4 April 2011 that the Tribunal did not have jurisdiction to review an application lodged by the first applicant for review of a refusal to grant him and the second applicant Student (Temporary) (Class TU) visas. 

2. The first applicant, who I refer to for convenience as the applicant, is a citizen of Bangladesh.  The second applicant is his partner.  The applicants applied for student visas on 16 April 2010.  The application was refused on 15 July 2010 on the basis that the delegate was not satisfied that the applicant had access to the funds required to support his study and dependent while in Australia.

3. The applicants applied to the Tribunal for review of the delegate’s decision on 20 August 2010.  The Tribunal wrote to the applicants (through their advisor) on 15 February 2011, putting to them for comment the view that their application was not a valid application as it had not been lodged within the relevant time limit, being 21 days from the day on which they were taken to have been notified of the primary decision.  The Tribunal referred to the fact that the delegate’s decision had been posted to the applicant on 16 July 2010 and that on that basis 26 July 2010 was the date on which he was taken to have been notified and hence that the last date for lodging the application for review was 16 August 2010.  The Tribunal put to the applicant that as the review application was not received by the Tribunal until 20 August 2010 it appeared to be out of time. 

4. The applicant responded to the invitation to comment by a letter in his name faxed from the migration agent’s office, indicating that the “postman came to [his] address” on 20 July 2010 but that as he was “not available at that time the post was not delivered” and he “did not have any idea what [was] happening with [his] student visa application”.  He claimed that he received an email from an identified officer with the Department of Immigration on 9 August 2010 (which advised him that a decision had been made on his visa and required him to attend the Department urgently).  He claimed that when he visited the Departmental office he was notified of the decision and that he went to the Post Office and collected the Registered Post letter on 9 August 2010.  He claimed that he actually received the refusal notification on 9 August 2010, not 26 July 2010, and requested that the Tribunal accept his review application. 

5. However in its decision of 4 April 2011 the Tribunal found that it had no jurisdiction to review the applicant’s application because it was not made within the time limits applicable under the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth). The Tribunal set out in detail the applicable law, including the fact that the Tribunal’s jurisdiction arises only if an application is properly made under s.347 of the Act for review of an MRT-reviewable decision, and that while a decision to refuse to grant a student visa is an MRT reviewable decision, s.347(1)(b) of the Act requires an application for review to be given to the Tribunal within the prescribed period. Prescribed periods are set out in reg.4.10 of the Regulations and commence on the day when the applicant is validly notified of the decision. In this instance, the applicable period was said to be 21 days after the day on which notification was received. The Tribunal observed, correctly, that there was no provision for an extension of time.

6. The Tribunal discussed the provisions in the Act and Regulations in relation to notification of a delegate’s decision, including the methods for notification of such a decision specified in s.494B of the Act. As it stated, one method is to despatch a document by pre-paid post to the last address for service or last residential or business address provided to the Minister by the recipient for the purpose of receiving documents. Critically, if a document is given to a person by this method and is despatched from a place in Australia to an address in Australia, the person is taken to have received the document seven working days after the date of the document under s.494C(4)(a) of the Act, even if the document was never in fact received. In other words, as the Tribunal pointed out, if the notice of a decision to refuse to grant a visa was sent in accordance with s.494B, the prescribed period within which the review application had to be lodged with the Tribunal commenced seven working days after the date of the notice.

7. The Tribunal set out its preliminary view that it did not have jurisdiction and referred to the submission received from the applicants, to which it said it had regard.

8. In its findings and reasons the Tribunal considered the applicable statutory provisions. It was satisfied that the contents of the delegate’s decision notice complied with the requirements of s.66(2) of the Act. The Tribunal set out that in order to determine whether the decision notice had bee sent within three working days, it obtained information from the Department’s mail and distribution centre, Converga, which advised that the notification was sent to the applicants’ nominated address on 16 July 2010. The Tribunal found that the applicants did not give the Minister written notice under s.494D of the Act of the name and address of an authorised recipient and that the decision notice dated 15 July 2010 was sent by pre-paid post on 16 July 2010 to the last postal and residential address provided to the Minister by the applicants for the purpose of receiving documents.

9. Hence the Tribunal found that the delegate’s decision notice was despatched within three working days of the date of the letter to the applicants’ correct address in accordance with s.66(1) and s.494B(4), and therefore that the applicants were taken to have received the notice on 26 July 2010, that being seven working days after the date of the notice.

10. The Tribunal specifically considered the applicant’s submissions relating to when he actually received the decision, but found that these arguments did not “provide a basis for accepting the application for review lodged on 20 August 2010”, as the Tribunal was satisfied the notification of the delegate’s decision was despatched in accordance with s.494B(4) of the Migration Act and as it did not have any discretion to accept applications lodged outside the prescribed period.

11. As the Tribunal found the applicants were properly notified of the delegate’s decision and were taken to have been notified on 26 July 2010, it found the prescribed period of 21 days for lodging of the application for review ended on 16 August 2010.  As the application was not received until 20 August 2010, after the prescribed period had expired, the Tribunal found that the application for review was not valid and that it had no jurisdiction. 

12. The applicants sought review of the Tribunal decision by application filed in this court on 2 May 2011.  They rely on an amended application filed on 14 July 2011.  The applicant also filed written submissions.  The ground in the amended application is expressed as one ground, but raises a number of issues.  The ground is that the Tribunal “constructively failed to uphold [his] natural justice”. 

13. The particulars are that a named migration agent, Kazi Ahsan of Integral Immigration Service advised the applicant that “the last day of application lodgement date at the Migration Review Tribunal was on 20 August 2010” that “Accordingly he prepared and lodged this application on behalf of me” and that “When the Tribunal asked for opinion on the basis that they did not have jurisdiction as the application was lodged out of time, Mr Khalid of Integral Immigration Service prepared a letter for [the applicant] and forwarded this letter to the Migration Review Tribunal”.  The particulars continued that the applicant was “wrongly advised” by Kazi Ahsan, who was providing him with “immigration advice as a capacity of Registered Migration Agent”. 

14. As elaborated on in written submissions, it appears that the applicant raises two issues. First he takes issue with the Tribunal’s finding that it had no jurisdiction based on the application of the notification provisions in the Migration Act, and secondly he relies on the alleged conduct by his migration agent.

15. In relation to notification of the delegate’s decision, the applicant’s contention is that he actually received the Tribunal decision on 9 August 2010 and that on that basis the time for lodging his review application should expire on 29 August 2010 and not on 16 August 2010. He did not refer to any provisions of the Migration Act or Regulations in support of this proposition. Rather, it appears that he is relying on the advice to this effect that he says he received from his migration agent.

16. However, as the Tribunal correctly set out in its reasons for decision, the time limit for an application to the Tribunal is calculated from the time of deemed receipt of the delegate’s decision, not from the time of actual receipt of the decision by the applicant. 

17. Moreover, it has not been established that the notification of the delegate’s decision was affected by any invalidity. Rather it is clear that the notification of the delegate’s decision was given to the applicant in a prescribed way as required under s.66(1) of the Act, in particular by one of the methods specified in s.494B of the Act (see reg.2.16 and s.494B(4)) consisting of despatch by pre-paid post. It is apparent from the material before the court that the decision notification was despatched to the correct address for the applicant, being the last notified residential or business address provided to the Minister by the recipient for the purposes of receiving documents. There was no authorised recipient notified at that stage. The letter was sent to an address in Kogarah which was the postal address provided by the applicant in his student visa application form. There is no evidence of any later address being provided by the applicant to the Department before the delegate’s decision was made on 15 July 2010. The letter was despatched on 16 July 2010 within three working days as required under the Act. The letter notifying the applicant of the delegate’s decision complied with the requirements of s.66(2) of the Act. The decision was properly given to the applicant within the meaning of the Act. It contained information in relation to the reasons for the decision, as well as review rights and how and where to apply for review.

18. Importantly, under s.494C(4) of the Act, where a document is despatched in this way – by pre-paid post – it is taken to have been received seven working days after the date of the document. Hence, as submitted for the first respondent, the applicant was deemed to have been notified of the delegate’s decision on 26 July 2010. This means that this is the applicable date for calculation of the period within which to seek review, notwithstanding that the applicant says that he did not in fact receive the letter of notification until a later date. The Tribunal correctly calculated the applicable time limit from this date.

19. No jurisdictional error has been established based on any error in the notification of the delegate’s decision to the applicant. 

20. Insofar as the applicant takes issue with the Tribunal’s conclusion that the application was lodged out of time and that it did not have jurisdiction, no jurisdictional error has been identified in that regard. The applicant submitted that his application was a valid application. However s.347(1)(b) of the Act requires that an application for review be given to the Tribunal within a prescribed period (see reg.4.10).

    
    

    As the decision was an MRT-reviewable decision and the applicant was not in immigration detention, the prescribed period under reg.4.10(1)(a) was 21 days after the day on which notice of the delegate’s decision was received. This is a reference to the date of deemed notification of the delegate’s decision (see s.494C(4)).

    
    

    As calculated by the Tribunal, the 21 day period ended on 16 August 2010.  The application was lodged out of time.  As the Tribunal correctly stated, it does not have a discretion to accept applications lodged outside the prescribed period.  The Tribunal’s decision that it did not have jurisdiction was correct.

21. Turning to the specifics of the ground in the amended application, it was contended by the applicant that his migration agent advised him that the last date for lodging his application for review with the Tribunal was 20 August 2010 (although in his written submissions he referred to 29 August 2010).  In any event what the applicant alleges is an error or bad or incorrect advice on the part of his migration agent. 

22. However the evidence before the court is not such as to establish or even suggest that the Tribunal’s decision was induced or affected by fraud in the manner considered in SZFDE and Others v Minister for Immigration and Citizenship & Another (2007) 232 CLR 189; [2007] HCA 35. It is well-established this a serious allegation and also that mere negligence or inadvertence will not be sufficient to give rise to fraud on the Tribunal (see Minister for Immigration and Citizenship v SZLIX and Another (2008) 245 ALR 501; [2008] FCAFC 17 at [33] and SZFDE at [51]).

23. In fact the applicant did not suggest any fraud on the part of the migration agent.  However as he is self-represented, I have considered whether there is anything in the material before the court to raise such a possibility. 

24. There is no suggestion of any motive for the migration agent to commit fraud by advising the applicant that he had additional time within which to file an application for review.  There is nothing in the circumstances of the case to suggest that making a review application within time would in any way have exposed the involvement of the migration agent in something untoward.  In fact, it is apparent from the material before the court that the application that was lodged with the Tribunal was lodged by the migration agent who was appointed authorised recipient in the review form. 

25. The complaint that the applicant makes about incorrect advice from his migration agent is not such as to establish any jurisdictional error on the part of the Tribunal.  If the applicant has a complaint about the conduct of his migration agent, this may be something he can raise with the Migration Agents Registration Authority, but it does not establish jurisdictional error. 

26. Insofar as the second particular to this ground is intended to take issue with the fact that the response to the Tribunal’s request for comments was said to have been prepared by another person from the same agency, the response was faxed to the Tribunal, apparently from the migration agent, albeit in the form of a letter under the name of the applicant.  It attached a copy of an email to the applicant from the Department and contained information that is consistent with what the applicant has told the court today.  The involvement of a migration agent in forwarding such comments to the Tribunal is not such as to establish any fraud on the Tribunal or that in any other way the Tribunal fell into jurisdictional error.

27. Insofar as the Tribunal had an obligation to accord the applicants procedural fairness, it met such obligations by giving them a reasonable opportunity to deal with matters adverse to their interests that the Tribunal proposed to take into account in exercising its power (see SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940). The Tribunal gave the applicants the opportunity to make submissions on the question of whether it had jurisdiction having regard to the time of lodging of the application for review. The applicants provided written submissions in response and those submissions were considered by the Tribunal in its reasons for decision. The fact that submissions may have been forwarded by or prepared by the applicant’s migration agent does not have any impact on the Tribunal’s obligation to accord procedural fairness. Nor, as discussed above, is it such as to establish jurisdictional error on any other basis.

28. Moreover this is not a case in which the Tribunal was under any obligation to invite the applicants to a hearing under s.425 of the Act (see SZEYK at [34] and cases cited therein).

29. The last particular in the amended application reiterates the applicant’s concern that he was “wrongly advised” by his migration agent who was providing him with immigration advice in the capacity of a registered migration agent.  If this occurred it is unfortunate, but the Tribunal does not have a discretion in relation to its jurisdiction. Nor does the court have any discretion to remit a matter to the Tribunal in the absence of identification of any jurisdictional error. 

30. As no jurisdictional error has been established, the application must be dismissed.  Before I make the orders, I will hear submissions in relation to costs.

31. The applicants have been unsuccessful and there is nothing in the circumstances of this case to warrant a departure from the normal principle that the unsuccessful applicants should meet the costs of the first respondent.  The amount sought is appropriate in light of the nature of this and other similar matters. 

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date:  19 October 2011