Jing v Minister for Immigration
[2007] FMCA 747
•9 May 2007
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 applicant lodged an application for review of the Delegate's decision. At the heart of the applicant's application for review was a contention that he had not received notification from the Delegate of the Delegate's decision. In support of that contention the applicant provided a statutory declaration from his then landlord.
However, on 18 January 2007 the Tribunal, upon consideration of the relevant law, concluded that it had no jurisdiction to review the Delegate's decision.
On 15 February 2007 the applicant filed an application in this Court seeking judicial review of that decision. The grounds of the application as expressed as follows:
“1. The respondents denied the applicant natural justice by not considering the context in which the applicant had exceptional circumstances which resulted in refusing of a student visa.
2. The respondents have not considered the evidence which is in favor (sic) of the applicant. They have only considered the evidence which is not in favor of the applicant.
3. DIMA did not fully and reasonably consider my special circumstances, which was beyond my control.”
The applicant was unrepresented before this Court this afternoon, although had the assistance of an interpreter. The applicant made clear to this Court that at the heart of his complaint was the fact that he did not receive the notification from the Delegate refusing his application to extend his visa, and that his failure to receive the document was through no fault of his own.
The first respondent by its solicitor, Mr Leerdam, took the Court through a careful excursion of the relevant legislation and regulations, in support of the first respondent's contention that the Delegate had complied with the legislative scheme in relation to notification by it to the applicant of its decision, and that, by operation of law, the Tribunal had no jurisdiction to entertain the applicant's application.
Section 66 of the Act states that the Delegate must notify the applicant in the prescribed way. Section 66 is set out relevantly as follows (emphasis added):
“Section 66
(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.
…
(4) Failure to give notification of a decision does not affect the validity of the decision.”
Section 66(2) provides, inter alia, that the notification must specify the criterion found not to have been satisfied, resulting in the refusal to grant the visa, and to give written reasons why the criterion was not satisfied.
In relation to the notification itself, being the letter dated 16 May 2006, the first respondent submits that the letter complies with s.66(2), relevantly s.66(2)(a) and (c) of the Act, in that it specified the criterion from regulation 573.235 that was not satisfied by the applicant.
The first respondent also submitted that s.66(2)(c) was complied with by the Delegate by attaching the decision record that provided the reasons why the criterion was not satisfied, that being, inter alia, a failure by the applicant to comply with condition 8202 of his last substantive visa.
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 satisfied
Regulation 573.235
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 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.
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.
In the circumstances, there has been a valid notification to the applicant of the Delegate's decision. The Tribunal concluded that:
a)the application for review was received by it outside the mandatory time limit;
b)the application for review is therefore not a valid application under s.347(1)(b)(i); and
c)therefore the Tribunal has no jurisdiction to review the Delegate's decision.
These conclusions were reached by the Tribunal following satisfaction by it that notification to the applicant complied with s.66(2), and a finding that the decision notification letter was dispatched in accordance with s.494B(4) of the Act.
Accordingly, the Tribunal’s decision is without error.
Whilst I understand the applicant is adamant that he did not receive the letter, it is clear that the Tribunal sought to communicate with him at the only address provided by him to the Department.
The Tribunal is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court, commenced by way of application filed on 15 February 2007, is dismissed.
The first respondent seeks costs fixed in the amount of $3,900. I note that the sum is less than that available to the first respondent in accordance with the relevant schedule of the Federal Magistrates CourtRules 2001 relating to costs.
In the circumstances, I am satisfied that the costs orders are reasonable.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Emmet FM
Deputy Associate: E. Maconachie
Date: 23 May 2007
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