Khan v Minister for Immigration
[2008] FMCA 1663
•18 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KHAN v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1663 |
| MIGRATION – Review of Migration Review Tribunal decision – student visa – refusal – deemed receipt of documents pursuant to s.160(1) of the Evidence Act 1995 does not amount to the actual notification required by s.477(1) of the Migration Act 1958 (“Act”) – where ss.379A and 379C of the Act apply they provide a statutory fiction that a document has been received and when it was received to the exclusion of consideration of when and whether it was actually received – an application fee does not accompany an application if the relevant credit card transaction is declined – it is for the applicant to remedy the deficiency and make payment – the Tribunal is not obliged to pursue the payment – application not valid because credit card transaction declined and thus the application fee was not paid. |
| Evidence Act 1995, s.160 Migration Act 1958, ss.65, 347, 348, 368, 368B, 379A, 379C, 430, 476, 477 Migration Regulations 1994, reg.4.13 Social Security Act 1991 |
| Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203 Kim v Minister for Immigration & Multicultural Affairs [2006] FCAFC 64 Secretary, Department of Family and Community Services v Chamberlain (2002) 116 FCR 348 SZKNX v Minister for Immigration & Citizenship [2008] FCAFC 176 Minister for Immigration & Citizenship v SZKKC (2007) 159 FCR 565 WACB v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 79 ALJR 94 Kirk v Minister for Immigration & Multicultural Affairs (1998) 87 FCR 99 |
| Applicant: | MUHAMMAD ZAHEER KHAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1873 of 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 17 November 2008 |
| Date of Last Submission: | 17 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 18 December 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1873 of 2008
| MUHAMMAD ZAHEER KHAN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 25 January 2008 the applicant applied for a Student (Temporary) (Class TU) visa. This was refused by a delegate of the Minister on 30 January 2008. The applicant then applied to the Migration Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
For the reasons which follow, the application will be dismissed.
Relevant law
Section 347 of the Migration Act 1958 (“Act”) sets out the requirements for a valid application to the Tribunal for review. Relevantly to this case, s.347(1)(c) provides:
347 Application for review by Migration Review Tribunal
(1) An application for review of an MRT-reviewable decision must:
(a) …
(b) be given to the Tribunal within the prescribed period … ; and
….
(c) be accompanied by the prescribed fee (if any).
Background facts
As already noted, the applicant’s application for a Student (Temporary) (Class TU) visa was refused by the Minister’s delegate on 30 January 2008.
On 21 February 2008 the applicant applied to the Tribunal for a review of the delegate’s decision and submitted credit card details with the application form to effect payment of the $1,400 fee: reg.4.13(1) Migration Regulations 1994 (“Regulations”). The same day a Tribunal officer attempted to process payment of the fee using the credit card details supplied by the applicant but the transaction was declined. The officer contacted the applicant that same day and advised him that his review application would not be valid without payment of the prescribed fee. The applicant indicated that moneys would be deposited into his account either later that day or the next morning. An attempt to process payment that afternoon was declined and two further unsuccessful attempts were made on 22 and 26 February 2008.
On 26 February 2008 the Tribunal tried to contact the applicant by telephone but without success.
By letter dated 7 March 2008 the Tribunal invited the applicant to comment, in writing, on the eligibility of his review application. The Tribunal outlined its various attempts to process payment and stated that:
The last day within the prescribed period that you could have paid the application fee was 29 February 2008. You did not pay the application fee by that day, or at any time since.
Your application for review may not be eligible because the prescribed application fee was not paid to the Tribunal within the prescribed time period.
The applicant responded on 31 March 2008 and stated as follows:
There are only two factors that restrained me of making a valid application. They are:
1.Financial hardship in the beginning but still lodged the application to catch up on due date
2. Had funds in account especially for the case review later on but MRT didn’t charge as the credit card details were provided.
I came to know after I received the letter from MRT regarding the non-payment for the review. Please charge my debit card for the application fee ...
The Tribunal’s decision and reasons
The Tribunal found that it did not have jurisdiction in the matter as the application for review filed on 21 February 2008 had not been validly made. In reaching this conclusion, the Tribunal noted that:
a)the last day within the prescribed period when the applicant could have paid the application fee was 29 February 2008 and the fee was not paid by that date or indeed at any time since then;
b)payment of the prescribed fee had not been waived under reg.4.13(4); and
c)the credit card transaction slips on all three occasions indicated that the Tribunal officers used the correct credit card numbers when attempting to process payment.
Proceedings in this Court
Review of delegate’s decision
In his affidavit filed on 21 July 2008 the applicant raised issues associated with the delegate’s decision. There he deposed to attempts to lodge his application for an extension of his student visa and the fact that his applications lodged on 23 October 2007, 29 November 2007 and 12 December 2007 were not processed because they suffered from formal deficiencies. He deposes to the application being lodged for the last time on 25 January 2008 and being accepted for processing on that occasion. This evidence related to a ground which had been raised in the initiating application filed on 21 July 2008 but omitted from the amended application. Even so, reference should be made to it because the applicant advised the Court that he wished to rely on this affidavit as well as the other affidavit he had filed in the proceedings.
Presumably, the allegation was abandoned in the amended application on the correct appreciation that such an allegation cannot be entertained by this Court. Section 476 of the Act provides that the Court has no jurisdiction to review the decision of delegates in matters such as this matter. As a consequence, this aspect of the applicant’s complaints must be put aside.
Review of Tribunal’s decision
The grounds of the amended application were, in essence, that although there may have been insufficient funds in the applicant’s account on the occasions when the Tribunal attempted to process payment of the application fee, there were sufficient funds on 29 February 2008, the last day for lodgement of the application, and the failure to make payment was because the Tribunal did not make a further attempt on that day to process the transaction.
The defences raised by the first respondent are:
(a)the application to this Court has been made out of time and the Court has no power to extend that time;
(b)in any event there has been delay in the bringing of the proceedings;
(c)the application has not raised an arguable claim for relief; and
(d)the application is futile because the applicant’s last substantive visa ceased on 24 October 2007 and his application the subject of these proceedings was only lodged on 25 January 2008. It was therefore out of time because it was lodged more than 28 days after the expiry of the applicant’s last substantive visa.
Proceedings out of time
The application and the amended application in these proceedings both state that the applicant received the Tribunal’s decision on 14 April 2008. The applicant did not file his application in this Court until 21 July 2008 which is more than 28 days later, indeed more than 84 days later. By reason of s.477 these facts would, ostensibly, mean that the proceedings had been brought out of time and that the Court has no power to extend the time in which they might be brought. Section 477 relevantly provides:
(1) An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.
(2) The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if:
(a) an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and
(b) the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.
(3) Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period. …
The respondent submitted that the Court should find that the applicant received the Tribunal’s decision on 14 April 2008 or, alternatively, by reason of the operation of s.160(1) of the Evidence Act 1995, it should be presumed that the applicant received the Tribunal’s letter of 10 April 2008, and its enclosure, on the fourth working day after it was posted. However, given the wording of the general provision which is s.160(1) of the Evidence Act, it cannot be concluded that it affects the operation of the specific provision which is s.477 of the Act. That is to say, deemed receipt under the Evidence Act does not prevail over, nor can it satisfy, s.477(1)’s requirement of actual notification. Consequently, attention must turn to the question of whether the applicant’s admission to have actually received the Tribunal’s decision on 14 April 2008 has any significance in this case.
Given that the applicant himself says that he received the Tribunal’s decision on Monday 14 April 2008 I am willing to infer that it, together with the covering letter of 10 April 2008, was sent to him by registered post (as the copy of the letter reproduced at Relevant Documents (“RD”) page 56 suggests) on Thursday 10 April 2008. The notation at the end of the Tribunal’s decision reproduced at RD 55 also suggests that the documents were posted on 10 April 2008.
At the relevant time, the Act provided in the then s.368B(6):
(6)If the applicant is not present at the handing down of the decision, the Tribunal must notify the applicant of the decision by giving the applicant a copy of the statement prepared under subsection 368(1). The copy must be given to the applicant:
(a)within 14 days after the day on which the decision is handed down; and
(b) by one of the methods specified in section 379A.
Section 379A(4) provides:
Dispatch by prepaid post or by other prepaid means
(4)Another method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, dating the document, and then dispatching it:
(a)within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Tribunal by the recipient in connection with the review; or
(ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review. …
I find that the Tribunal sent its decision to the applicant to the last address for service he provided to the Tribunal (RD 36) under cover of its letter of 10 April 2008 in accordance with former s.368B(6) and in accordance with s.379A(4). This has the consequence that s.379C(4) applies and it provides:
Dispatch by prepaid post or by other prepaid means
(4)If the Tribunal gives a document to a person by the method in subsection 379A(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; or
(b)in any other case – 21 days after the date of the document.
That it is to say, the documents are taken to have been received by the applicant on 21 April 2008.
The fact that the applicant may say that he received the documents on a particular day does not affect the statutory imposition of a potentially different day as the day on which he received the Tribunal’s decision. The regime set out in ss.379A and 379C was clearly designed to provide for a statutory fiction concerning when the Tribunal’s decision is received by an applicant: Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203 per Gleeson CJ at 207.
The Act provides that the decision is to be taken to have been received on a day determined by applying the formula in the Act and it leaves no room for the Court to consider whether it was actually received: Kim v Minister for Immigration & Multicultural Affairs [2006] FCAFC 64 at [8]. Further, the combined effect of ss.379A and 379C is that the day when a document may actually have been received is of no consequence and must be ignored. In Secretary, Department of Family and Community Services v Chamberlain (2002) 116 FCR 348, Kiefel J considered provisions contained in the Social Security Act 1991 concerning the preclusion period during which a recipient of tortious damages involving an element of compensation for lost income would be ineligible to receive social security benefits. Her Honour said:
It may generally be accepted that the statutory provisions here in question were intended to operate upon factual bases which were assumed and were not intended to reflect the true position …
Unlike a presumption, which may be rebutted by evidence, the purpose and effect of a deeming provision is to prevent any attempt, by either party, to prove the truth: Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd [1982] HCA 23; (1983) 150 CLR 169 at 214, Murphy J; a facility to put to rest the disputes which would otherwise arise concerning the facts: Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203 at 227, Kirby P. Whether a provision has this effect is determined principally by having regard to the purpose for which it is used: Macquarie Bank v Fociri, 207-208, Gleeson CJ; Muller v Dalgety & Co Ltd [1909] HCA 67; (1909) 9 CLR 693; Rheem Australia Ltd v Collector of Customs (NSW) (1988) 78 ALR 285 at 301.
Here the factual assumptions upon which the calculations are based, including that which treats 50 per cent of the total compensation payment as representing the economic loss component, could not have been intended to be subject to rebuttal in the process of applying the formulae. The statutory purpose is to overcome the need in each case to determine what part of a lump sum compensation payment in truth represents economic loss. Although the assumptions to be made and the result reached are necessarily arbitrary, it is a course which has been taken for administrative simplicity: Secretary, Department of Social Security v Hulls (1991) 22 ALD 570 at 579; Secretary, Department of Social Security v Smith (1991) 30 FCR 56 at 61. (at [23], [24] and [25]).
The first respondent sought to draw comfort from what was said by the Full Court of the Federal Court in SZKNX v Minister for Immigration & Citizenship [2008] FCAFC 176 at [25]:
Irrespective of how the Tribunal has complied with its obligation under s.430(2), if an applicant has physically received a copy of the Tribunal’s decision and reasons, as has happened in the present case, there has been actual notification of the decision for the purposes of s.477.
However, that decision relates to events which occurred in 1999, prior to the introduction into the Act of ss.379A and 379C. In SZKNX, the Full Court was not concerned with provisions in the Act which deemed notification of the Tribunal’s decision to have occurred. Unencumbered by deeming provisions such as s.379C, the Full Court was able to identify a date when the applicant could be found to have actually come into possession of the Tribunal’s decision, at which point time started to run.
This is not a case where the applicant was handed the Tribunal’s decision in accordance with s.379A which, it was held in Minister for Immigration & Citizenship v SZKKC (2007) 159 FCR 565, would satisfy the s.477 requirement of actual notification. As Buchanan J said in SZKKC:
… the sole method of actual (as opposed to deemed) notification of the written statement, required by s.430(1) to be prepared by the RRT, which is provided by the Act, is delivery by hand. (at 573 [37])
Section 430 is the Refugee Review Tribunal’s equivalent of s.368. In this case, rather than be given by hand, the documents were sent by post which necessarily involves a deemed receipt date.
Although the first respondent submitted that s.477 requires the Court to look at the date when the applicant was actually notified of the Tribunal’s decision on the basis that as a specific provision s.477 must prevail over ss.379A and 379C which are provisions of a more general nature, that is not what was held in SZKKC’s case which is binding on me. Although the applicants in that case had come into physical possession of their respective Tribunal decisions shortly before they commenced proceedings, which was after time under s.477 had ostensibly expired and thus may have echoed the facts of WACB v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 79 ALJR 94, it was not by reference to WACB’s case that SZKKC’s case was decided. As Buchanan J said in SZKKC at 573 [37], although his decision accorded with the outcome in WACB and that case’s emphasis on physical delivery, it was reached by consideration of the provisions in Pt.7 of the Act.
In this case, the Court must disregard what the applicant says concerning when he received or was notified of the Tribunal’s decision and, accepting that the decision was not hand delivered, take it instead to have been notified on a date calculated by reference to ss.379A and 379C. Such a deemed notification does not satisfy s.477’s requirement of actual notification. Consequently, I find that time under s.477 has not yet started to run. I therefore do not conclude that these proceedings have been brought out of time or that the applicant needs the Court’s leave to bring these proceedings.
Delay in bringing the proceedings
The first respondent also says that there has been delay in seeking relief from the Court because although the Tribunal’s decision was notified in April 2008 these proceedings were not commenced until July 2008. This is undoubtedly true but no evidence has been led by the first respondent to suggest any prejudice arising out of this and, in any event, if jurisdictional error were to be demonstrated I would not be of the view that a period of approximately three months is an unwarrantably long period in the circumstances. Here, as the Relevant Documents reveal, once the Tribunal’s decision was published there followed correspondence between the Tribunal and the solicitors instructed by the applicant. It was not until the Tribunal’s letter of 23 June 2008 (RD 67) that the Tribunal advised the applicant’s solicitors that although it had considered their submission it was functus officio. These proceedings were then commenced on 21 July 2008.
For these reasons I would not conclude, were jurisdictional error to be found, that relief should be denied on the basis of unwarrantable delay in bringing the proceedings.
Claim for relief not arguable
It is on the ground that the claim for relief is not arguable that the first respondent must succeed.
The applicant was required to pay the appropriate application fee when he made his application to the Tribunal and yet he failed to do so. It is not good enough to say, as he does, that if the Tribunal had persisted in its periodic, unsuccessful attempts to have the credit card payment effected it would have obtained payment on the very last day on which payment could be made. The situation is similar to that considered by Lehane J in Kirk v Minister for Immigration & Multicultural Affairs (1998) 87 FCR 99 at 103 where his Honour concluded that there was nothing in the Act or the Regulations which excluded
… that well-established principle which, where a cheque is dishonoured, does not depend for its operation on the reason why a cheque is dishonoured. If the cheque is in fact dishonoured, then the condition fails and payment is taken not to have been made.
His Honour also said:
Once it is seen that it is essential to give the application to the Secretary within the prescribed period, it must be concluded, in my view, that it is equally essential that the application “be accompanied by the prescribed fee (if any)”. The requirement that the application be “accompanied” by the prescribed fee must mean, at least, that that fee is to be paid before the end of the period within which the application must be “given”: similar words were so construed by the High Court of New Zealand (Fisher J) in Wielgus v Removal Review Authority [1994] 1 NZLR 73. Fisher J held also that the requirement that an appeal be “accompanied by the prescribed fee” meant that, if an appeal were validly to be brought, both the notice of appeal must be lodged and the fee must be paid within the period provided for lodgment of the notice. In the present context, where s.339(1) provides that each step “must” be taken, both (giving effect to the word “accompanied”) within the prescribed period, there is no ground to conclude that one requirement is any less essential than the other in order to invoke the jurisdiction to review. (at 102)
The situation in this case is analogous. A rejected credit card transaction is like a dishonoured cheque. Although the holder of the cheque may present it again, and the holder of credit card details may use those details again in an attempt to obtain payment, the payment failed when it was dishonoured and it remains for the person seeking to make payment to actually effect that payment. It is not for the holder of the dishonoured cheque or the rejected credit card to make persistent attempts to obtain payment of an application fee when it is the applicant’s responsibility to ensure that the fee is paid. The applicant seeks to effect a reversal of responsibilities which is not justified by the wording of the Act which requires that the review application “be accompanied by the prescribed fee (if any)”. Those words mean that payment must be tendered and tendered effectively. A payment does not accompany an application if the purported payment is ineffective. Further, if payment by credit card is ineffective it is for the applicant to remedy the deficiency, not the Tribunal. The applicant has to make the payment; the Tribunal is not obliged to pursue it.
The Tribunal correctly noted that s.347 requires that an application to it has to be accompanied by the prescribed fee which was, in the circumstances, $1,400. The Tribunal further correctly found that the prescribed fee had not accompanied the application with the result that the application for review was not a valid application and the Tribunal had no jurisdiction to consider the matter. As s.348 makes clear, the Tribunal is empowered to review an MRT-reviewable decision “if an application is properly made under s.347”. The submission or lodgement of a properly made application is a condition precedent to the Tribunal’s powers to undertake a review and, because payment of the prescribed fee did not accompany the application, that condition was not satisfied on this occasion.
Consequently, the Tribunal did not err in concluding that it had no jurisdiction.
Application futile
Finally, it was submitted by the first respondent that even were the matter to be remitted to the Tribunal, to do so would be futile because the Tribunal would be unable to do other than affirm the delegate’s decision. It was submitted that this is so because the delegate’s power to consider the visa application which came before him was dependent upon the applicant lodging his visa application no later than 28 days after the expiry of his last substantive visa. The evidence discloses that the applicant’s last substantive visa expired on 24 October 2007 and that the visa application the subject of these proceedings was not lodged until 25 January 2008, well outside the 28 day period. Clause 572.211 of Sch.2 to the Regulations relevantly provides:
Criteria to be satisfied at time of application
(1) If the application is made in Australia, the applicant meets the requirements of subclause (2), (3), (4) or (6).
(2) …
(3) An applicant meets the requirements of this subclause if:
(a)the applicant is not the holder of a substantive visa; and
(b) the last substantive visa held by the applicant was:
(i) a student visa; …
(c)the application is made within 28 days (or within such period specified by Gazette Notice) after:
(i) the day when that last substantive visa ceased to be in effect; …
Section 65(1) of the Act provides:
(1) After considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) …
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) …
(iv) …
is to grant the visa.
(b) if not so satisfied, is to refuse to grant the visa. …
Consequently, it can be seen that the applicant failed to satisfy a primary criterion which, pursuant to cl.572.211 of Sch.2 to the Regulations, had to be satisfied at the time he applied for his visa. Because of this failure, s.65 of the Act required that the application for the visa be refused.
Consequently, even if the Tribunal had erred, remitting the matter to it to be determined according to law would result in no different outcome and it is likely that the Court’s discretion would have been exercised to refuse relief to the applicant.
Conclusion
Although a number of issues were raised which have required consideration by the Court, the matter was ultimately determined by concluding that the Tribunal did not err when it found that it had no jurisdiction to undertake the review sought by the applicant.
Because of this, the application must be dismissed.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 18 December 2008
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