Li Xu v Minister for Immigration
[2011] FMCA 111
•25 February 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LI XU v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 111 |
| MIGRATION – PRACTICE & PROCEDURE – Migration Review Tribunal – application for adjournment – explanation for delay – whether grounds of application have any, or any reasonable prospects of success – whether the decision of the Migration Review Tribunal is affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 494C(v); 494D(1); 494D(2) |
| Applicant: | LI XU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2439 of 2010 |
| Judgment of: | Emmett FM |
| Hearing date: | 25 February 2011 |
| Date of Last Submission: | 25 February 2011 |
| Delivered at: | Sydney |
| Delivered on: | 25 February 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr I. Archibald |
| Counsel for the Respondent: | Mr D. Godwin |
| Solicitors for the Respondent: | G. Johnson (DLA Phillips Fox) |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2439 of 2010
| LI XU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP & ANOR |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
The applicant seeks an adjournment of the scheduled hearing this morning through her counsel, Mr Archibald, on the basis that Mr Archibald was instructed only yesterday afternoon in respect of this matter.
The applicant is seeking judicial review by this Court of a decision of the Migration Review Tribunal to affirm the decision of the delegate cancelling the applicant’s student visa.
In support of the application, Mr Archibald read the affidavit of the applicant, Li Xu, affirmed at an unknown date, annexing a draft amended application providing an explanation of the applicant’s conduct since notification to her of the decision of the Tribunal and the filing of her application on 10 November 2010 in this Court for judicial review of that decision.
The substance of the applicant’s affidavit is as follows:
1. I am the applicant in this proceeding.
2. I first consulted Mr Wilson Shen of Lawside Lawyers to act for me in relation to this matter.
3. The first barrister which Lawside Lawyers retained for me was, as I understand it, Mr Kumar.
4. Late last year Mr Shen said to me words to the effect of Mr Kumar complained about the Judge before so it may you decide to whether changing the barrister.
5. Accordingly I requested Mr Shen to retain another barrister for me.
6. In December 201 I had a meeting with the second barrister whose name I recollect was “Patrick Rodney”.
7. I recollect that Patrick said my case was hopeless.
8. After that Mr Shen said to me words to the effect of I quit. When you go to Court just tell the truth. This conversation took place before Christmas in 2010.
9. I understand that after this conversation Mr Shen filed a document to advise the Court that he was no longer acting for me.
10. I thought that I would have to represent myself in theses proceedings.
11. I was aware that the case was listed for hearing on 25 February, 2011. I did not know how I should prepare for the case. I just wanted to try to do my best.
12. About two or three weeks ago, I received a letter from Phillips Fox concerning the case. I did not really understand the letter so I went back to Mr Shen and asked him to explain it.
13. When I saw Mr Shen in last week I said to Mr Shen “Could you try again to get another barrister for me?” Mr Shen said All right. I will try again for you.
14. Last week Mr Shen said to me words to the effect of I have arranged for you and to see Mr Ian Archibald, barrister on Thursday 24 February 2011,
15. on 24 February 2011, I attended Mr Ian Archibald in conference.
16. Annexed hereto and marked “A” is a copy of the proposed Amended Application which I seek the leave of the Court to file and proceed upon.
17. I respectfully request this Honourable Court to grant me an extension of time within which to prepare my case for hearing.”
The draft amended application identifies the following grounds of application:
“1. The Tribunal fell into jurisdictional error by reason of it determining the review before it on an incorrect basis of fact on a matter which was fundamental to the reasons of the Tribunal for affirming the decision under review.
Particulars
a. The Tribunal determined the review and gave its reasons for decision on the factual basis that the applicant had traveled (sic) to China two weeks before her fina exams in 2009 and just after receiving a second warning letter from Macquarie University about her then current academic progress (“the Incorrect Fact”)
b. the Incorrect Fact did not exist, yet it formed a critical basis for the Tribunal to be satisfied that the non-compliance by the applicant with condition 8202 of the subject Visa was not due to exceptional circumstances beyond the applicant’s control and to give little weight to the report from the psychologist Dr Jacmon.
2. The Tribunal fell into jurisdictional error by reason of unreasonableness
Particulars
a. The Tribunal gave little weight to the report of Dr Jacmon as:
i. Dr Jacmon had only assessed the applicant for 1/1/2 to 2 hours
ii Dr Jacmon had seen the applicant in September 2010
iii. Dr Jacmon’s report was based on the applicant’s self-reporting, and,
iv. The applicant did not undertake any follow up treatment following her consultation with Dr Jacmon
b. This reasoning taken separately or as a whole is arbitrary and capricious and sufficient to vitiate the decision under review.”
Those grounds raised by the draft amended application seek to address the review of the decision of the Tribunal itself.
On 12 January 2011, the first respondent filed an amended response identifying for the first time the issue as to whether or not the Tribunal had jurisdiction to conduct a review of the delegate’s decision. The first respondent contended that the lodging on 14 July 2010 of the application for review by the Tribunal of the delegate’s decision was outside the statutory time required under the Act
Mr Archibald informed the Court that the draft amended application and affidavit were prepared late yesterday after he was instructed in the matter. Mr Archibald further informed the Court that he was not provided with any of the documents filed in this Court, other than the green book and the initiating application filed on 10 November 2010.
Mr Archibald also had not seen the written submissions of the first respondent that were filed on 24 January 2011. The Court adjourned for some short period of time to give Mr Archibald an opportunity to consider those documents and take further instructions.
Upon the Court resuming, Mr Archibald submitted that an issue that arose was the circumstance in which the notification of the delegate’s decision was sent to the applicant.
The notification was sent by email to the applicant’s authorised recipient at the email address provided by the authorised recipient in the applicant’s student visa application.
It is common ground that an email was sent by the first respondent to the applicant’s authorised recipient on 2 July 2010 at the email address identified on the review application form. It is also common ground that, if the notification on 2 July was valid, receipt by the applicant was deemed to have occurred on 13 July 2010 and that time would run against the applicant from that date.
It is common ground that if valid notification was given on 2 July 2010 by email transmission, then the applicant had only until 13 July 2010 to lodge an application for review of the delegate’s decision with the Tribunal.
The issue raised by Mr Archibald was whether or not the email was validly sent to the applicant in circumstances where there is a department file note, dated 10 August 2010, annexed to the affidavit of Katherine Nicole Hooper, affirmed 12 January 2011, that states:
“The migration agent could not open the MRT pamphlet and they had to spend almost two days in a hospital due to mother’s serious illness. They requested earnestly to intend the time to go to the MRT. I have consulted with my team leader and was advised me to renotify the client due to exceptional circumstances”.
Mr Archibald submitted that the file note made clear that the applicant’s migration agent was unable to open the notification and for that reason compliance with the statutory regime had not occurred.
There was no issue raised by Mr Archibald that the notification itself, if received, was in any way deficient or did not otherwise contain the information required in accordance with the statutory regime for notification.
Mr Archibald also conceded that there was no evidence before the Court to suggest that there was any error or irregularity in the transmission of that email from the department to the email address identified by the migration agent. Neither does Mr Archibald raise any argument that a further notification that was sent on 14 July 2010, subsequent to the notification of 2 July 2010, was the relevant date from which time should run or had any bearing on the issues before this Court.
In the circumstances, the only issue before the Court is whether or not the notification, sent by email on 2 July 2010, was effective to comply with the statutory regime for notification.
Mr Archibald agreed that the Tribunal had no jurisdiction to consider the review if notification was sent in accordance with the statutory regime. In those circumstances, Mr Archibald accepts that there would be no utility in the Court making any order other than the dismissal of the proceeding.
Counsel for the first respondent, Mr Godwin, helpfully provided to the Court a summary of the relevant statutory regime as follows:
Relevant Provisions
10. The delegate’s decision was MRT reviewable: s 338(3) of the Act. By regulation 4.10(1)(b) the time prescribed for seeking review is 7 working days[1]. Section 494B(5) permits notification by email[2]. Section 494C(5)[3] provides that email notification is deemed to be received at the end of the day on which it was transmitted.
11. In order to be a valid notification the requirements of s 127(2) of the Act must be met. These are:
(2) Notification of a decision to cancel a visa must:
(a) specify the ground for the cancellation; and
(b) state whether the decision is reviewable under Part 5 or 7; and
(c) if the former visa holder has a right to have the decision reviewed under Part 5 or 7--state:
[1] this regulation is prescribed under s 347(1)(b)(i)
[2] In Sainju v MIC [2010] FCA 461 Jacobson J thought notification was governed by Regulation 2.55 rather than s 494B and 494C, but did not express a concluded view. However in Singh v MIC [2010] FMCA 305 Jarrett FM considered that Reg 2.55 in its terms did not govern notification to an authorised recipient. The requirements Reg 2.55 are to the same effect as s 494B and 494C.
[3] this regulation is prescribed under s 127(1)
(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.
In the absence of any evidence to suggest that there was any error in the transmission of the email or any irregularity in the transmission of the email, then, in accordance with section 494C(v) of the Act, the applicant was taken to have received that email at the end of 2 July 2010 being the date on which it was sent.
In her review application, the applicant nominated her migration agent to be her authorised recipient. Pursuant to s.494D(1) of the Act, if the applicant gives the Minister written notice of the name and address of an authorised recipient the Minister must give the authorised recipient, instead of the applicant, any documents that the Minister would otherwise have given to the applicant. Pursuant to s.494D(2), if the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the applicant. In this circumstance, the Minister sent the notification by way of email to the migration agent being the applicant’s authorised recipient.
Plainly the migration agent was aware that the document had been sent. The department’s file note suggests simply that he was unable to open it because he was attending to his mother in hospital for two days.
That explanation, to my mind, is not sufficient to suggest that the transmission of the email notification to the applicant was not in accordance with the statutory regime.
Even if Mr Archibald was to demonstrate that any of the grounds of his amended application had prospects of demonstrating any jurisdictional error in the decision of the Tribunal, it would be of no utility to grant such relief where the Tribunal otherwise had no jurisdiction to review the delegate’s decision.
I also note that the applicant was originally represented in this proceeding, however, a notice of withdrawal of lawyer was filed on 7 January, 2011.
There is essentially no explanation by the applicant for her delay in seeking further advice from any lawyer other than in her affidavit where she says that two or three weeks ago she received a letter from DLA Phillips Fox, solicitors, concerning the case. She said that because she did not understand the letter so she went back to see Mr Shen who arranged for her to see Mr Archibald last night.
However, she still had four weeks prior to that time to have sought any further advice. The first respondent had notified her on 12 January, 2011 of the issue of the jurisdiction of the court in its amended response and in the affidavit evidence of Katherine Nicole Hooper sworn 12 January, 2011.
However, even if I was minded to accept her explanation for the delay as satisfactory, any application to this Court has no or no reasonable prospects of success as the Tribunal had no jurisdiction to review the delegate’s decision. The fact that it did so is of no effect.
Accordingly, the application for an adjournment is refused.
For the reasons referred to above for refusing the applicant an adjournment of today’s scheduled hearing, the proceeding before this Court, commenced by way of application filed on 10 November 2010 is dismissed with costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate:
Date: 8 March 2011
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