Liu v MIBP - [2013] FCCA 2208

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIU & ORS v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 2208

Catchwords:
MIGRATION – Business visa – refusal – review of Migration Review Tribunal (“Tribunal”) decision.

MIGRATION – Validity of application to Tribunal – whether receipt by Tribunal is required or dispatch by applicant is sufficient.

Legislation:

Migration Act 1958, ss.338, 347, 348, 494C

Migration Regulations 1995, regs.4.10, 4.11, cls. 890.322 and 890.324 of sch.2
Migration Legislation Amendment Regulation 2013 (No.1)
Electronic Transactions Act 1999, s.14A

Cases Cited:
WACB v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 79 ALJR 94

First Applicant:

DESHENG LIU

Second Applicant:

QI GUAN

Third Applicant:

XUANCHEN LIU

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 830 of 2013

Judgment of:

Judge Cameron

Hearing date:

9 December 2013

Date of Last Submission:

9 December 2013

Delivered at:

Sydney

Delivered on:

9 December 2013

REPRESENTATION

Solicitors for the Applicants:

Paul Guan & Associates

Counsel for the First Respondent:

Mr J. Smith

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application be dismissed.
The applicants pay the first respondent’s costs fixed in the amount of $6,646.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 830 of 2013

DESHENG LIU

First Applicant

QI GUAN

Second Applicant

XUANCHEN LIU

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The first applicant, who is a citizen of China, applied for a Business Skills (Residence) (Class DF) subclass 890 visa on 22 December 2011. The second and third applicants, who are his wife and and child, were included in that application as members of his family unit. On 3 September 2012 the applicants’ applications were refused by a delegate of the first respondent (“Minister”) on the basis that the first applicant did not satisfy the requirements of cls.890.324 and 890.322 of sch.2 to the Migration Regulations 1995 (“Regulations”). The applicants then applied to the second respondent (“Tribunal”) for a review of that departmental decision. The Tribunal found that it did not have jurisdiction to review the delegate’s decision as the applicants’ application for review had not been received within the period during which a valid application could be made. The applicants have applied to this Court for judicial review of the Tribunal’s decision.
For the reasons which follow, the application will be dismissed

Relevant legislation

By virtue of s.338(2) of the Migration Act 1958 (“Act”), the delegate’s decision was an “MRT-reviewable decision”. Pursuant to s.348 of the Act, the Tribunal’s jurisdiction arises if an application to it complies with s.347 of the Act.
Section 347 of the Act relevantly provides:
347Application for review by Migration Review Tribunal
(1)An application for review of an MRT-reviewable decision must:
(a) be made in the approved form; and
(b)be given to the Tribunal within the prescribed period, being a period ending not later than:
(i) if the MRT-reviewable decision is covered by

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: [2013] FCCA 2208
Decision Date: 9 December 2013

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the Migration Review Tribunal (Tribunal) to refuse a business visa. The applicant, Mr Liu, sought judicial review of the Tribunal's decision.

The central legal issue before the court was whether the applicant's application for review was validly lodged within the prescribed time limit. This required the court to determine whether the application was "given to the Tribunal" within the statutory period, and if so, when that period commenced.

The court considered sections 347(1)(b) of the Migration Act 1958 (Cth) and regulation 4.10(1)(a) of the Migration Regulations 1994 (Cth), which stipulated that an application for review must be "given to the Tribunal" within 21 days of notification of the decision. The applicant's migration agent, appointed as their authorised recipient, received the delegate's decision via email on 3 September 2012. The Tribunal formed a preliminary view that the application, received on 5 November 2012, was out of time, as the 21-day period expired on 24 September 2012. The court also considered section 14A(1)(a) of the Electronic Transactions Act 1999 (Cth), which defines the time of receipt of an electronic communication as when it becomes capable of retrieval by the addressee.

The court found that the applicant's migration agent was the designated addressee for electronic communications. Therefore, the date of receipt of the delegate's decision was 3 September 2012, when it was emailed to the agent and became capable of retrieval. Consequently, the 21-day period for lodging the review application expired on 24 September 2012. As the Tribunal did not receive the application until 5 November 2012, it was lodged out of time.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Section 347 of the Act relevantly provides:347Application for review by Migration Review Tribunal(1)An application for review of an MRT-reviewable decision must:(a) be made in the approved form; and(b)be given to the Tribunal within the prescribed period, being a period ending not later than:(i) if the MRT-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)-- 28 days after the notification of the decision; or…(5)Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of MRT-reviewabledecisions (which may be decisions that relate to non-citizens in a specified place). Regulation 4.10 of the Regulations relevantly provides:4.10Time for lodgment of applications with Tribunal (Act, s 347)(1)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 is 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; … Consequently, between them, s.347(1)(b)(i) and reg.4.10(1)(a) of the Regulations relevantly provide that an application for review of a decision covered by s.338(2) must be “given to” the Tribunal within twenty-one days of the notification of the decision. In this case, that twenty-one day period expired on 24 September 2012. During addresses, the applicants also referred to reg.4.11 of the Regulations but the version which was handed up to the Court was not relevant to these proceedings as it was only introduced into the Regulations in March this year by way of Migration Legislation Amendment Regulation 2013 (No. 1). However, s.14A(1)(a) of the Electronic Transactions Act 1999 is relevant to these proceedings. It provides:14A Time of receipt(1)For the purposes of a law of the Commonwealth, unless otherwise agreed between the originator and the addressee of an electronic communication:(a)the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee; … As part of the application process the applicants appointed ABC Business as their migration agent and, in substance if not in terms, their authorised recipient. As noted earlier, the applicants’ applications for visas were refused by the delegate on 3 September 2012. The delegate’s decision record was emailed to the applicants’ migration agent on 3 September 2012. After receiving the applicants’ application for review of the delegate’s decision, the Tribunal formed a preliminary view that the application was not valid because it had been lodged outside the statutory time limit. The Tribunal wrote to the applicants on 25 January 2013 inviting them to comment on that issue. It noted that as the delegate’s decision had been emailed to their authorised recipient on 3 September 2012, that was the date on which they were taken to have been notified of the delegate’s decision and, therefore, the last day for lodging their review application had been 24 September 2012. The Tribunal noted that as the review application had not been received by it until 5 November 2012, it appeared to be out of time.