Milon v Minister for Immigration - [2009] FMCA 85

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MILON v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 85

MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether s.66(2)(d) of the Migration Act 1958 (Cth) required the delegate to include in any letter notifying the applicant of his adverse decision information that the letter may not have been sent within three days of the date of the notification letter – whether the first respondent is required personally to post any letter sent pursuant to s.494B(4) – whether the Migration Review Tribunal breached natural justice obligations in failing to inform the applicant that the letter sent by the delegate notifying the applicant of the adverse decision may not have been sent within three days of the date of the notification letter.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.66; 66(1); 66(2); 66(2)(d); 66(2)(d)(ii); 347(1)(b)(i); 357A; 474; 494B; 494B(2); 494B(3); 494B(4); 494B(4)(a); 494B(5); 497; pt.5 div.5; pt.8 div.2
Migration Regulations 1994 (Cth), reg.4.10(1)(a)

CAO v Minister for Immigration & Anor [2009] FCMA 70;
Khan and Anor v Minister for Immigration and Citizenship [2007] FMCA 419

Applicant:

MD KAMRUJ JAMAN MILON

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

SYG 2563 of 2008

Judgment of:

Emmett FM

Hearing date:

2 February 2009

Date of last submission:

2 February 2009

Delivered at:

Sydney

Delivered on:

13 February 2009

REPRESENTATION

Counsel for the Applicant:

Mr R. Killalea

Solicitors for the Applicant:

Mr R. Shakenovsky, Shakenovsky and Associates

Solicitors for the Respondent:

Mr A. Markus, Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2563 of 2008

MD KAMRUJ JAMAN MILON

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and pt.8 div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 11 August 2008 and sent on 12 August 2008.
The applicant is a Bangladeshi national who previously held a student visa granted on 26 June 2006 and had studied a Certificate IV and a Diploma of Commerce – Accounting in Australia (“the Applicant”).
On 2 July 2007, the Applicant lodged an application for a Student Temporary (Class TU) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 17 September 2007, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a temporary student visa.

The Tribunal Decision

On 15 March 2008, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 11 August 2008, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 3 October 2008, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
The…

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: [2009] FMCA 85
Decision Date: 13 February 2009

CaseChat Overview and Summary

In Milon v Minister for Immigration, the Applicant, a citizen of Bangladesh, sought judicial review of a decision by the Migration Review Tribunal (MRT) to refuse his application for a student visa. The Applicant had originally applied for a student visa on 2 July 2007, but the delegate of the Minister for Immigration and Citizenship refused the application on 17 September 2007, finding that the Applicant did not meet the financial requirements for a subclass 573 visa. The Applicant applied to the MRT for review of the delegate's decision on 15 May 2008, well beyond the 12-month period in which such an application could be lodged. The MRT found that the Applicant was taken to have received notification of the delegate's decision on 26 September 2007, and that the last day for lodging an application for review was 17 October 2007. Accordingly, the MRT found that it had no jurisdiction to hear the Applicant's review application, and dismissed it. The Applicant sought judicial review of the MRT's decision, claiming that he had not received notice of the delegate's decision until 12 May 2008.

The central legal issue in this case was whether the Tribunal was correct to find that the Applicant was taken to have received notice of the delegate's decision on 26 September 2007, and whether this meant that the Applicant's application for review was out of time. The Applicant submitted that he had not received notice of the delegate's decision until 12 May 2008, and that the Tribunal should therefore have considered his application for review. The Respondent submitted that the Tribunal was correct to find that the Applicant was taken to have received notice of the delegate's decision on 26 September 2007, and that the Tribunal was therefore correct to find that it had no jurisdiction to hear the Applicant's application for review.

The court found that the Tribunal's reasoning was correct, and that the Applicant was taken to have received notice of the delegate's decision on 26 September 2007. The court held that the Tribunal was correct to find that it had no jurisdiction to hear the Applicant's application for review, as it was lodged beyond the 12-month period in which such an application could be made. The court held that the Tribunal was correct to find that the Applicant was taken to have received notice of the delegate's decision, as the delegate's letter was sent in accordance with the statutory requirements, and there was no evidence that the Applicant had not received the letter. The court held that the Tribunal's decision was therefore correct, and dismissed the Applicant's application for judicial review.

The court made no orders as to costs.

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

The background of the Applicant’s application for a student visa and the consideration of that Applicant by the Delegate and the Tribunal is accurately summarised by the solicitor for First Respondent in his written submissions as follows:“3.The applicant is a citizen of the People’s Republic of Bangladesh.[1] On 2 July 2007, he lodged an application for a student visa with the Department of Immigration and Citizenship.[2] That application listed a “Bachelor of Commerce – accounting” as the applicant’s intended course, and nominated Macquarie University as his proposed education provider.[3] A delegate of the Minister for Immigration and Citizenship therefore assessed the applicant against the criteria for a Student (Temporary) (Class TU) subclass 573 (Higher Education Sector) visa.[4][1] RD 18[2] RD 1-17[3] RD 5[4] RD 38Delegate’s decision4.The delegate’s decision was dated 17 September 2007.[5] The delegate was not satisfied that the applicant had demonstrated that he had sufficient funds from an acceptable source to meet his expenses.[6] Accordingly, the delegate held that the applicant did not meet criterion 5A505 for the grant of a subclass 573 visa.[7] The delegate found that the applicant did not satisfy the criteria for any of the remaining subclasses within Class TU.[8] As such, the delegate refused the application.[9] Outgoing registered post records obtained from the Department’s mail and distribution centre (known as “Converga”) indicate that the delegate’s letter was sent to the address nominated by the applicant in his visa application on 18 September 2007.[10]Before the MRT5.Some eight months later, on 15 May 2008, the MRT received an application for review of the delegate's decision.[11] That application was accompanied by a statement in which the applicant claimed that a Departmental officer informed him in 2007 that his application had been sent to the MRT, and that he was unaware that his application had been refused until 12 May 2008.[12]6.On 15 May 2008, the MRT wrote to the applicant, advising him that it had received his application, but that its eligibility had not been assessed. The MRT invited the applicant to provide any documents or written arguments that he wished the MRT to consider.[13] On 21 May 2008 and 20 June 2008, the applicant provided the MRT with extensive materials relating to his financial circumstances and his educational background.[14]7.On 23 June 2008, the MRT wrote to the applicant, and informed him that he was taken to have received the delegate's decision on 26 September 2007. As such, the last day that the applicant could have applied to the MRT for review of that decision was 17 October 2007. The MRT asked the applicant to respond with any comments by no later than 16 July 2008.[15]…10.The MRT signed its decision on 11 August 2008, and sent a copy to Mr Bitel on 12 August 2008.[16] The MRT acknowledged Mr Bitel's letter of 8 August 2008, and the draft statutory declaration.[17] The MRT noted, however, that notification could be deemed to have occurred even if the applicant had never received the delegate's letter.[18] The MRT found that the delegate's letter was dispatched in accordance with the statutory requirements, and that the applicant was therefore taken to have received the letter on 26 September 2007. The MRT found that the notification of the delegate's decision complied with the relevant requirements.[19] Accordingly, the MRT found that the applicant was properly notified of the delegate's decision on 26 September 2007, and that the last day on which an application to the MRT could have been received was 17 October 2007.[20] As the application to the MRT was not lodged until 15 May 2008, the MRT found that it was not a valid application, and that the MRT therefore had no jurisdiction in the matter.[21]”[5] RD 37[6] RD 38[7] RD 38[8] RD 38-39[9] RD 39[10] For applicant's nominated address, see RD 2. For the Department's record, see RD 42[11] RD 43-49[12] RD 50-51[13] RD 59[14] RD 60-189[15] RD 190-191[16] RD 201-203[17] RD 204[18] RD 205[19] RD 207[20] RD 207[21] RD 207

Ratio Decidendi

Legal Principle Established

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