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

1. The application be dismissed.

2. 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

1. 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.

2. For the reasons which follow, the application will be dismissed

Relevant legislation

1. 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.

2. 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).

3. 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; …

4. 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.

5. 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; …

Background facts

1. 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.

2. 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.

3. In a written response dated 4 February 2013, the applicants’ migration agent submitted that a review application had been faxed to the Tribunal on 18 September 2012 but that no acknowledgement of the application had been received.  The applicants’ agent submitted that it was not until 5 November 2012, when they contacted the Tribunal, that they realised that the application had not been received, whereupon a further application was immediately submitted.  The applicants’ agent submitted his facsimile transmission journal for 18 September 2012 which showed what he said were three successful transmissions to the Tribunal, one of twenty-two pages and two of two pages.

The Tribunal’s decision and reasons

1. The Tribunal noted that the material before it indicated that the applicants had been notified of the delegate’s decision by letter dated 3 September 2012 which was dispatched by email.  It was therefore satisfied that the applicants had been notified of the decision in accordance with the statutory requirements.

2. The Tribunal recorded that it had checked the incoming facsimiles received by its registry on 18 September 2012 and found that although the registry had received two facsimiles of two pages from the applicants’ migration agent, there was no record of a facsimile of twenty-two pages being received from the applicants’ migration agent.  It can be inferred that neither of the two page facsimiles was the review application.  The Tribunal was not satisfied that the applicants’ application for review had been in the possession of its registry on 18 September 2012.

3. The Tribunal found that by virtue of s.494C of the Act the applicants were taken to have been notified of the delegate’s decision on 3 September 2012. The Tribunal therefore found that the prescribed period within which the review application could have been made had ended on 24 September 2012 and, as the application for review was received on 5 November 2012, it was out of time. The Tribunal concluded that it had no jurisdiction to review the application as it had not been received within the prescribed period.

Proceedings in this Court

1. In the application commencing these proceedings the applicants alleged:

   1.The Tribunal has made a jurisdictional error by failure to take into account the relevant considerations in determining whether the applicant has lodged a valid review application with the Migration Review Tribunal on 18 September 2012.

   Particulars

   (a)The fax transmission journals from their Migration Agent showed that they had 3 successful transmissions to the Tribunal on 18 September 2012, one of 22 pages and two of 2 pages.

   (b)The Tribunal’s own records of two faxes from the migration agent on 18 September 2012.

   2.The Tribunal has made a jurisdictional error in failure to afford procedure fairness to the Applicants in acknowledging the receipt of their review application.

   Particulars

   (a)The Tribunal received two faxes of 2 pages from their Migration Agent, and if the two pages of fax were related to the Applicant’s review application and found that it was not complete, it was reasonably expected that the Tribunal should contact the Applicants or their Migration Agent for a complete application.

   (b)There were no records of such enquiries having been made to the Applicants or their Migration Agent when they received incomplete review application from the Applicants or their Migration Agent.

   (c)Failure to do so denied fair opportunity to the Applicants and it was unreasonable.

2. The second ground of the application was not pressed.

Evidence

1. In their case, the applicants called their migration agent, Mr Guan, who gave evidence concerning facsimile transmissions from his office.  However, as will become apparent for the reasons which follow, Mr Guan’s evidence was of no particular relevance to the determination of this matter. 

2. The Minister relied on two affidavits: one of Bernadette Ruddy, sworn 2 December 2013 and the second of Arunima Lal, solicitor, affirmed 13 August 2013.  Ms Ruddy is the Director of Technology Services for the Tribunal and the Refugee Review Tribunal.  In her affidavit, she deposed to the process by which facsimile transmissions are received by the Tribunal and how they are ultimately accessible by Tribunal officers.  She also deposed to the fact that once facsimile transmissions are successfully received by one of the Tribunal’s facsimile servers, they reside on that server, are not deleted and are capable of retrieval at any time. 

3. Annexed to Ms Ruddy’s affidavit was the Tribunal’s facsimile receipt log for 18 September 2012.  Recorded in that log are two two-page facsimile transmissions from the applicants’ agent’s facsimile number.  Those would appear to be the facsimile transmissions which are annexed to Ms Lal’s affidavit, one being a facsimile recorded as having been received at the Tribunal at 11.17am on 18 September 2012 and another as being received at 4.56pm on the same day. 

4. Notwithstanding the one hour time discrepancies between the footer notations on the copies of the facsimiles annexed to Ms Lal’s affidavit and the times recorded in the facsimile transmission receipt log annexed to Ms Ruddy’s affidavit, I am satisfied that the facsimiles annexed to Ms Lal’s affidavit are the documents which the applicants’ migration agent sent to the Tribunal.  I also note that each of them relates to a request to withdraw an MRT review application.  Although the identities of the agent’s clients have been redacted from the copies attached to Ms Lal’s affidavit, I am prepared to conclude that neither of those facsimiles related to the applicants in this case. 

5. The facsimile receipt log also records that the Tribunal received two twenty-two page facsimiles on 18 September 2012.  The first of those is recorded as having been received from a telephone number which annexure B to Ms Ruddy’s affidavit identifies as being the facsimile number of CP International Migration.  The second twenty-two page facsimile is recorded as having come from a telephone number which annexure C to Ms Ruddy’s affidavit identifies as the facsimile number of Parish Patience, solicitors. 

Consideration

1. The ground as pleaded can be addressed in short form.  The applicants alleged that the Tribunal failed to consider the facsimile transmission record of the applicants’ migration agent.  I am not persuaded, given the Tribunal’s discussion of the evidence before it in its reasons for decision, that the evidence in question was overlooked. 

2. However, even if it had been, the relevant question was not whether the review application was sent but whether it was received.  The applicants submitted that as their migration agent had faxed their application on 18 September 2012, that should be treated as the day the application was given to the Tribunal.  However, that proposition is contrary to authority.  In WACB v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 79 ALJR 94 at [37] it was said in analogous circumstances:

   At the relevant time, the word "give" used in s 430D(2), the applicable provision in this case, was not defined. Accordingly, it is the ordinary meaning of the word, understood in its context, that must be considered. The context is that the RRT must give the applicant a copy of the written statement. In that setting, to give a document ordinarily requires its physical delivery, not some act of constructive delivery of possession which, at general law, may suffice to transfer property in a chattel. It will not be enough to communicate to the applicant orally that the document has arrived, or to communicate the gist of the document, or even to read the document to the applicant. What is required is that the written statement be physically given to the applicant. Only once this has occurred can it be said that s 478(1)(b) is enlivened and time begins to run. …

3. As at the time of WACB, the Act still does not define the word “give” and I conclude that s.347 of the Act may be characterised as a code which stipulates the requirements for a valid application to the Tribunal. The full terms of that section have not been quoted in these reasons but nevertheless evidence the section’s codifying nature. Additionally, the effect of s.14A(1)(a) of the Electronic Transactions Act is that an electronic transmission must be capable of being retrieved by the Tribunal before it can be said to have been received by the Tribunal.

4. The applicants adduced no evidence to suggest that the Tribunal had received their application on 18 September 2012 or at any other time before 5 November 2012.  However, the Minister did adduce evidence which satisfies me that the Tribunal did not receive a twenty-two page facsimile from the applicants’ migration agent on 18 September 2012.

5. Applying their Honours’ reasoning in WACB to the facts of this case, I find that when the Tribunal received the application for review in November 2012, it was out of time and therefore not a valid application because it had not been given to the Tribunal in accordance with s.347(1) of the Act. I also infer that the Tribunal had received no other relevant review application from the applicants before that time.

Conclusion

1. The Tribunal was correct to conclude that it did not have jurisdiction in this case.

2. As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  18 December 2013