Jing v Minister for Immigration - [2007] FMCA 747

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JING v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 747

MIGRATION – Migration Review Tribunal – practice and procedure – whether MRT had jurisdiction to consider application for review.

Federal Magistrates CourtRules 2001
Judiciary Act 1903 (Cth) s.39B
Migration Regulations 1994 (Cth) reg.4.10
Migration Act 1958 (Cth) ss.66; 66(2); 66(2)(a); 66(2)(c); 338(2); 347(1)(b)(i); 474; 494B(4); 494C(4); 494C(4)(a)

Applicant:

SUN JING

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG512 of 2007

Judgment of:

Emmett FM

Hearing date:

9 May 2007

Date of Last Submission:

9 May 2007

Delivered at:

Sydney

Delivered on:

9 May 2007

REPRESENTATION

Applicant appeared on his own behalf

Solicitors for the Respondent:

Mr J. Pinder & Mr L. Leerdam, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG512 of 2007

SUN JING

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth), and pt.8 div.2 of the Migration Act 1958 (Cth) (“the Act”), for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 18 January 2007.
The applicant, who is a citizen of the People's Republic of China (“the PRC”), was granted a Student (Temporary)(Class TU) visa on 5 January 2005. That visa was valid until 31 July 2005.
On 31 August 2005 the applicant lodged an application for an extension of that visa with the then Department of Immigration & Multicultural & Indigenous Affairs (“the Department”).
On 16 May 2006 a delegate of the first respondent (“the Delegate”) refused the applicant's application for an extension of the applicant's visa, because the applicant had not complied with regulation 573.235 of the Migration Regulations 1994 (Cth) which stipulates the following:
“If the application was made in Australia, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.”
A mandatory condition of the applicant's visa was compliance with condition 8202 of his last substantive visa. Compliance with that condition, inter alia, included certification that he had maintained satisfactory academic results for relevant periods.
The applicant was unable to satisfy the Delegate of that certification, and accordingly the Delegate found itself bound to refuse to grant an extension of the applicant visa.
On 16 May 2006, the Delegate of the first respondent wrote to the applicant at the only address provided by the applicant on his application for extension, being a Burwood address. That letter informed the applicant that his application for an extension had been refused and attached the decision record.
The decision record contained the reasons of the Delegate for refusing the application, and identified regulation 573.235 as the criteria of the migration regulations not satisfied. The letter provided the text of that regulation.
On 24 August 2006, 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.

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Details

Case: [2007] FMCA 747
Decision Date: 9 May 2007

CaseChat Overview and Summary

Jing brought proceedings against the Minister for Immigration, challenging a decision made under the Migration Act 1958 (Cth). The dispute centred on the timing of an application for review of a decision made by a delegate, which the applicant sought to lodge with the Migration Review Tribunal (MRT). The Federal Court of Australia was the court that heard the matter, assessing whether the applicant's application for review was lodged within the statutory time limit. The primary legal issue the court had to determine was whether the notice provided to the applicant regarding the time limit for lodging a review application was compliant with the statutory requirements and whether this notice correctly informed the applicant of the time period within which to lodge an application for review with the MRT.

The court examined the statutory framework governing the lodgement of applications for review and found that the notice provided to the applicant complied with the statutory provisions regarding the timing and method of notification. The court also considered the statutory provisions that deem the applicant to have received the notice seven working days after the date of the document if sent by the prescribed method. The court was satisfied that the notice was given in compliance with these statutory requirements, thereby correctly informing the applicant of the 21-day period within which to lodge an application for review. The court concluded that since the notice was correctly given and the applicant was deemed to have received it within the prescribed period, the application for review was timely lodged.

The Federal Court of Australia found in favour of the Minister for Immigration, holding that the notice provided to the applicant was in compliance with the statutory requirements and that the applicant's application for review was therefore lodged within the statutory time limit. The Court dismissed the proceedings brought by Jing against the Minister.

Orders

Orders of the court

Full text does not contain this section.

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

Regulation 4.10 of the Migration Regulations 1994 (Cth) relates specifically to time for lodgement of applications with the Tribunal. Regulation 4.10(1)(a) provides that, relevantly:“For paragraph 347(1)(b) of the Act, the period in which an application for review of an MRT-reviewable decision must be given to the Tribunal:(a) If the MRT-reviewable decision was mentioned in subsection 338(2) or (7A) of the Act – 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” (emphasis added) The notice from the Delegate to the applicant dated 16 May 2006 informs the applicant that if he decides to lodge a review application, he must do so within 21 calendar days after he receives this letter. That information is in accordance with the prescribed period as described in reg.4.10. Pursuant to s.494C(4) of the Act, the applicant is taken to have received the notification if the letter was sent from a place in Australia to an address in Australia, seven working days after the date of the document. Section 494C(4) also stipulates that such a letter may be given to the applicant by the method prescribed in s.494B(4) of the Act. Section 494B(4) provides that a method of giving a document to an applicant includes dispatching the letter within three working days of the date of the document by prepaid post or other prepaid means, to the last address for service provided to the Department by the recipient for the purpose of receiving documents, or the last residential or business address provided to the Department by the recipient for the purpose of receiving the documents. As stated above in these reasons, the only address provided by the applicant was the Burwood address. Exhibit 1R, being the bundle of relevant documents described as the Court Book and filed on 11 April 2007, contains a copy of the envelope containing the notice dated 16 May 2006. A postage stamp on the envelope discloses that the letter was posted on 17 May 2006, and was received by the Department unclaimed on 15 June 2006. In the circumstances, I am satisfied that the notice dated 16 May 2006 was given to the applicant in compliance with s.494B(4) of the Act. In those circumstances the applicant is deemed to have received that letter seven working days after the date of that document. The notice dated 16 May 2006 informs the applicant that he is taken to have received the letter seven working days after the date of the letter. That information is in accordance with s.494C(4)(a) of the Act, set out 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;” I am satisfied that the notice dated 16 May 2006 to the applicant also correctly informed the applicant that he had 21 calendar days after receipt of that letter in which to lodge his application.

Ratio Decidendi

Legal Principle Established

It is clear that the decision record formed part of the notification from the Delegate to the applicant, and the last paragraph (with the heading in bold) identifies regulation 573.235 as the relevant regulation and sets out the text of that regulation. It is as follows:“Criterion in the Migration Regulations not satisfiedRegulation 573.235If the application was made in Australia, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive use held by the applicant, and to any subsequent bridging visa.” Accordingly, I am satisfied that the requirements of s.66(2)(a) and (c) are met by the letter dated 16 May 2006. The letter dated 16 May 2006 also stated the following terms:“You are entitled to apply for a review of this decision. If you decide to lodge a review application, you must do so within 21 calendar days after you receive this letter. You are taken to have received it seven working days after the date of this letter.” Pursuant to s.338(2) of the Act, the decision of the Delegate was an “MRT-reviewable decision”. Accordingly, pursuant to s.347(1)(b)(i) of the Act, an application for review of a Tribunal reviewable decision must relevantly be given to the Tribunal within the prescribed period. Regulation 4.10 of the Migration Regulations 1994 (Cth) relates specifically to time for lodgement of applications with the Tribunal. Regulation 4.10(1)(a) provides that, relevantly:“For paragraph 347(1)(b) of the Act, the period in which an application for review of an MRT-reviewable decision must be given to the Tribunal:(a) If the MRT-reviewable decision was mentioned in subsection 338(2) or (7A) of the Act – 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” (emphasis added) The notice from the Delegate to the applicant dated 16 May 2006 informs the applicant that if he decides to lodge a review application, he must do so within 21 calendar days after he receives this letter. That information is in accordance with the prescribed period as described in reg.4.10. Pursuant to s.494C(4) of the Act, the applicant is taken to have received the notification if the letter was sent from a place in Australia to an address in Australia, seven working days after the date of the document. Section 494C(4) also stipulates that such a letter may be given to the applicant by the method prescribed in s.494B(4) of the Act. Section 494B(4) provides that a method of giving a document to an applicant includes dispatching the letter within three working days of the date of the document by prepaid post or other prepaid means, to the last address for service provided to the Department by the recipient for the purpose of receiving documents, or the last residential or business address provided to the Department by the recipient for the purpose of receiving the documents. As stated above in these reasons, the only address provided by the applicant was the Burwood address.