LI v Minister for Immigration

[2013] FCCA 1874

FEDERAL CIRCUIT COURT OF AUSTRALIA

LI v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1874

Catchwords:
MIGRATION – Judicial review of decision of Migration Review Tribunal – application for Student (Temporary) Class TU visa – no jurisdiction in MRT as application lodged out of time – no evidence that application was made within 21 days of receiving decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.66, 338, 347

Migration Regulations 1994 (Cth), reg. 2.16, 4.10, 494B, 494C

Xie v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCAFC 172

Applicant: MENG LI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 304 of 2013

Judgment of: Judge Manousaridis

Hearing date: 11 September 2013

Delivered at: Sydney

Delivered on: 15 November 2013

REPRESENTATION

The Applicant in person.

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs in the amount of $5,400.

3. The name of the first respondent recorded in the application is amended to “Minister for Immigration and Border Protection”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 304 of 2013

MENG LI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant seeks judicial review of a decision made by the second respondent (MRT) on 21 January 2013 that it did not have jurisdiction to review a decision of a delegate of the first respondent (Minister) made on 4 April 2012 refusing to grant the applicant a Student (Temporary) (Class TU) visa (Student visa).

2. The MRT decided it did not have jurisdiction because the applicant made his application for review outside the time prescribed by reg.4.10 of the Migration Regulations 1994 (Regulations). The applicant claims he did apply within the relevant time. Whether or not the applicant did so is the only issue raised in this application.

3. To determine this question, I must first set out the relevant statutory and regulatory rules and the relevant facts as established by the evidence before me.

Legislative and regulatory rules

1. Under s.347 of the Migration Act 1958 (Cth)(Act)  the MRT has jurisdiction to review “MRT-reviewable decisions” as that expression is defined in s.338 of the Act. Section 347(1)(b) of the Act provides that an application for review of an MRT-reviewable decision must be given to the MRT within the prescribed period being a period not ending later that 28 days or 70 days depending on the type of decision that is covered by s.338 of the Act.

2. The time by which an application for review must be given is prescribed by reg.4.10 of the Regulations. The period prescribed differs according to the type of MRT-reviewable decision. In this case, the application for a Student (Temporary) (Class TU) was made in the circumstances covered by s.338(2). That is, the visa for which the applicant applied could be granted while the applicant was in the “migration zone”, the applicant applied for the visa while in the “migration zone”, and the decision of the delegate was not made when the applicant was in “immigration clearance” or when the applicant had been refused “immigration clearance” and had not subsequently been “immigration cleared”.

3. Because the delegate’s refusal to grant the applicant the visa for which he applied was one covered by s.338(2) of the Act, the relevant prescribed period by which the applicant was required to give the MRT his application for review was that prescribed by reg.4.10(1)(a); that is, the period which “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”.

4. Section 66(1) of the Act provides that 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. The ways in which the Minister may notify a person of a decision to grant or refuse to grant a visa is prescribed by reg.2.16 of the Regulations. Regulation 2.16(3) provides that where the decision is one to refuse the grant of a visa, the Minister may notify an applicant of the decision by one of the methods specified in s.494B of the Act. One of the methods specified in s.494B(5) of the Act is by e-mail to the last e-mail address provided to the Minister for the purposes of receiving documents. Section 494C(5) of the Act provides that if the Minister gives a document to a person by the method provided for in s.494B(5), that is by email or fax, the person is taken to have received the document at the end of the day on which the document is transmitted.

5. A consequence of an application to review an MRT reviewable decision not being made within the time prescribed pursuant to s.347(1)(b) is to deny the MRT jurisdiction to review the decision it would otherwise have had had the application been given within the prescribed time.[1]

   [1] Xie v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCAFC 172

The circumstances of this case

1. Whether the applicant gave its application to the MRT within the prescribed time depends on when the applicant received notice of the delegate’s decision not to grant to the applicant the Student visa. The starting point is the last address the applicant provided to the Minister for the purposes of receiving documents.

2. The applicant lodged his application for a Student visa on 14 November 2012.[2] In his application form, the applicant answered “yes” to the following question:

   [2] CB1-8

   Do you agree to this Department communicating with you via-email and/or fax?

   Under the words “If yes, enter e-mail address”, the applicant typed a particular email address (notified e-mail address).

3. On 4 April 2012 the delegate sent an email to which was attached a letter addressed to the applicant titled “Notification of refusal of application for a Student (Temporary)(Class TU) visa” which, in turn, attached a decision record which recorded the delegate’s decision to refuse the applicant’s application for a Student visa.[3] The email was sent to the notified e-mail address. By operation of s.494C(5) of the Act, therefore, the Minister, through the delegate, is taken to have notified the applicant of the decision not to grant the Student visa on 4 April 2012.

   [3] CB33-42

4. That means that, if the applicant wished to apply to the MRT for a review of the delegate’s decision refusing to grant the applicant the Student visa, the applicant had to give his application for review to the MRT during the period which started on 4 April 2012 and ended 21 days after that day, namely, 25 April 2012. The applicant, however, lodged his application for review to the MRT on 27 April 2012.[4] He did that by fax. Regulation 4.10(6) of the Regulations provides that an application for review that is sent to the MRT is taken to be given to the MRT at the time the fax is received at the registry of the Tribunal. The applicant, therefore, did not give his application for review within the time prescribed by s.347(2)(b) of the Act.

   [4] CB44. The MRT concluded, and the Minister submitted, that the 21-day period ended on 26 April 2013. In my opinion, that is incorrect.

The applicant’s grounds

1. The grounds of application contain the following paragraphs:

   1.I did  . . . fax to MRT near the midnight on 26 April 2012, not 27 April 2012, then I am in the right time frame to lodge the MRT.

   2.Please get my MRT case back MRT to reconsideration to grant my student visa.

2. Although there are two paragraphs, there is only one ground. The applicant contends that his application to the MRT was faxed at midnight on 26 April 2012. The applicant, who was not legally represented at the hearing, made no submission to the Court but simply relied on the grounds stated in the application.

3. There is no basis for the applicant’s contention that the application to the MRT was faxed to and thus was received by the MRT at midnight on 26 April 2013. The application to the MRT bears a fax header which records the fax was received on “27/04/2012 13:45”.

Conclusion and disposition

1. The MRT was correct to conclude the applicant did not give to the MRT an application for review of the delegate’s decision made on 4 April 2012 within the period prescribed pursuant to s.347(1)(b) of the Act and that, as a consequence, it did not have jurisdiction to determine that application.

2. The application must be dismissed with costs. I will also order that the Minister’s title as it appears in the application be amended to reflect his current title.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  15 November 2013