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 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 38
Delegate’s decision
4.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 MRT
5.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

The proceeding before this Court

The Applicant was represented before this Court by Mr Killalea, of counsel. The First Respondent was represented by Mr Markus, solicitor.
On 22 October 2008, the Applicant’s solicitor attended a directions hearing before this Court. The Applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, by 9 December 2008. On 28 January 2009, 2 business days before the hearing, the Applicant filed an amended application and served written submissions in support of the amended application.
At the commencement of the hearing, the Applicant’s counsel sought leave to rely upon the grounds identified in the amended application. The Respondent’s solicitor, Mr Markus, conceded that there was no prejudice to the Respondents occasioned by any such amendment and that he was in a position to deal with the amended application at the hearing. The explanation given by Mr Killalea was that, although he had drafted the initiating application, he had only recently thought of the arguments reflected in the amended application and therefore had not been able to comply with the directions of the Court in relation to the time for filing of any amended application. Whilst the Court does not accept that such an explanation by itself is sufficient to entitle the Applicant to rely on an amended application, in circumstances where Mr Markus conceded there was no prejudice and that he was able to deal with the amendments, leave was granted to the Applicant to rely on the grounds identified in the amended application, filed on 28 January 2009.
The grounds of the amended application are expressed to be as follows:
“1.The Migration Review Tribunal (MRT) erred in law by failing to exercise jurisdiction, contra s.348, to review a decision of a delegate of the First Respondent, when the application for such review, had been properly made out to the MRT
Particulars
MRT Decision Record sent 12 August 2008
Letter of delegate of First Respondent dated 17 September 2007 informing Applicant of Decision and Decision Record.
The Decision was not “notified” in accordance with sub-para 66(2)(d)(ii), Migration Act 1958 as it did not state the temporal aspects of s.494B(4)(a), Migration Act (Khan v MIMIA [2007] FMCA 419 being clearly wrong)
There is no evidence that the Decision was “given” (“dispatched .. by prepaid post”) by the Minister in accordance with s.494B(4). The inference may be drawn, contra, that it was dispatched by “the Department’s mail and distribution centre, Converga” (Decision Record, [19], [20] & [24])
3.The Migration Review Tribunal (MRT) failed to attain, or failed to exercise, jurisdiction by reason that, in respect of its decision sent 12 August 2008, the MRT erred in law, by failing to accord procedural fairness to the applicant, in not providing information to the Applicant, being information provided to the MRT by “Converga” (per DIAC) and being information relied upon by the MRT contra the Applicant, in making its decision sent on 12 August 2008
Particulars
Decision record of MRT sent 12 August 2008; [19], [20] & [24].
Letter of MRT dated 23 June 2008 (no reference to “Converga” information)
Email (& associated records) of Converga of 12 June 2008
Converga Record (CB 42)”

Ground 1

Mr Killalea submitted that at the heart of Ground 1was a submission that s.66(2)(d)(ii) of the Act required that the letter dated 17 September 2007 from the Delegate notifying the Applicant of the Delegate’s decision (“the Notification Letter”) include a statement that the legislative scheme required the Minister to post a notification letter within 3 days of the date of the letter pursuant to s.494B(4)(a) (“the 3 Day Rule”). Mr Killalea submitted that the Notification Letter was required to inform the Applicant of the 3 Day Rule so that the Applicant may see at once whether or not the letter effectively complied with the service provision requirements as set out in s.494B(4)(a) and was therefore effective, valid notification.
Relevantly, s.494B states as follows:
“Methods by which Minister gives documents to a person
Coverage of section
(1) For the purposes of provisions of this Act or the regulations that:
(a) require or permit the Minister to give a document to a person (the b ); and
(b) state that the Minister must do so by one of the methods specified in this section;
the methods are as follows.
Giving by hand
(2) One method consists of the Minister (including by way of an authorised officer) handing the document to the recipient.
Handing to a person at last residential or business address
(3) Another method consists of the Minister (including by way of an authorised officer) handing the document to another person who:
(a) is at the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; and
(b) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(c) appears to be at least 16 years of age.
Dispatch by prepaid post or by other prepaid means
(4) Another method consists of the Minister dating the document, and then dispatching it: [emphasis added]
(a) within 3 working days (in the place of dispatch) of the date of the document; and [emphasis added]
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or
(ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; or
(iii) if the recipient is a minor--the last address for a carer of the minor that is known by the Minister.
Transmission by fax, e‑mail or other electronic means
(5) Another method consists of the Minister transmitting the document by:
(a) fax; or
(b) e‑mail; or
(c) other electronic means;
to:
(d) the last fax number, e‑mail address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents; or
(e) if the recipient is a minor--the last fax number, e‑mail address or other electronic address, as the case may be, for a carer of the minor that is known by the Minister.
When the Minister hands a document by way of an authorised officer
(6) For the purposes of sections 494C and 494D, a reference in those sections to an act of the Minister includes, if the act is of a kind referred to in subsection (2) or (3) of this section, a reference to an act of the Minister by way of an authorised officer.
Section 66 states as follows:
“Notification of decision
(1) 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.
(2) Notification of a decision to refuse an application for a visa must:
(a) if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa--specify that criterion; and
(b) if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa--specify that provision; and
(c) unless subsection (3) applies to the application--give written reasons (other than non‑disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
(d) if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500--state: [emphasis added]
(i) that the decision can be reviewed; and
(ii) the time in which the application for review may be made; and [emphasis added]
(iii) who can apply for the review; and
(iv) where the application for review can be made.
(3) This subsection applies to an application for a visa if:
(a) the visa is a visa that cannot be granted while the applicant is in the migration zone; and
(b) this Act does not provide, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.
(4) Failure to give notification of a decision does not affect the validity of the decision.
(5) This section does not apply to a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.”
Mr Killalea conceded that the Notification Letter was sent to the Applicant at the correct address and was posted by registered post within 3 days of the date of the Notification Letter.
Mr Killalea submitted that because there was a “temporal aspect” to the 3 Day Rule and s.66(2)(d)(ii) of the Act, therefore the 3 Day Rule formed part of the requirement under s.66(2)(d)(ii) that the Applicant be informed about the time within which he was required to file any application for review of the Delegate’s decision.
Such an argument was considered by Scarlett FM in Khan and Anor v Minister for Immigration and Citizenship [2007] FMCA 419. Scarlett FM (at [14]) rejected the construction contended for by Mr Killalea on the basis that the obligation in s.66(2)(d)(ii) “is simply to state the time in which an application for review may be made.” Scarlett FM held that a failure to include information to an applicant that the letter was required to be sent within 3 days of the date of the letter did not vitiate a notification letter. Scarlett FM found that the relevant information required to be provided in a notification letter, sent pursuant to s.66 of the Act, was that an applicant is taken to have received the letter 7 working days after the date of that letter and that time runs against the applicant from that day, in that the applicant must lodge a review application within 21 calendar days after deemed receipt of a notification letter. Cameron FM made similar findings in CAO v Minister for Immigration & Anor [2009] FCMA 70.
Section 66(2)(d)(ii) of the Act clearly requires that the Notification Letter inform the Applicant the amount of time the Applicant has to lodge an application for review of the Delegate’s decision. Relevantly, the Notification Letter stated as follows:
“You are entitled to apply for review of this decision. If you decide to lodge a review application, you must do so within 21 calendar days after you receive this letter. You are taken to have received it 7 working days after the date of this letter.
Please note that this time-review period is prescribed in law and your application for review cannot be accepted after that date.”
The information referred to above in the Notification Letter makes clear to the Applicant that he is deemed to have received the Notification Letter 7 days from the date of that letter and had a further 21 days to lodge an application for review. That information, on its face, makes clear to the Applicant “the time in which the application for review may be made” (see s.66(2)(d)(ii).
The submission made by counsel for the Applicant is tantamount to a submission that the Delegate is required to inform the Applicant that the Notification Letter may not be in accordance with the legislative regime and therefore may not be deemed to be effective notification to the Applicant of the decision of the Delegate to refuse the Applicant a visa. However, there is no such explicit obligation in the legislative regime in s.66 of the Act.
Further, I accept the submission of Mr Markus that s.66 is predicated on a presumption of validity and compliance. There is no other reference in the legislative scheme that an applicant must be informed that invalid steps may have been taken by the Minister, the Delegate or the Department in relation to its attempted compliance with the legislative scheme in relation to applications for visas.
Mr Killalea submitted that, without information about the 3 Day Rule, consequences may flow to an applicant that may be “highly prejudicial”. However, it is difficult to see how such a failure to comply with the 3 Day Rule could be “highly prejudicial” to an applicant. Time does not run against an applicant for the filing of an application for review of the Delegate’s decision unless he receives notification in accordance with the legislative regime, including compliance with the 3 Day Rule.
I accept the submission of Mr Markus that s.494B has no relevance to s.66. Section 66(2) clearly sets out the information that must be included in any notification letter. Relevantly, s.66(2)(d) states that the notification letter must inform the applicant that the delegate’s decision can be reviewed; the time in which the application for review may be made; who can apply for the review; and, where the application for review can be made. Section 494B of the Act, on the other hand, provides for the method by which notification is to be effected and if there is no compliance then there is no effective notification and time does not run against an applicant for the filing of an application for review of the delegate’s decision.

In the circumstances, I am not persuaded that the 3 Day Rule has “a temporal aspect” that requires its inclusion in information required by of s.66(2)(d)(ii) of the Act. As stated above in these Reasons, Mr Killalea’s submission is based on the premise that the Delegate is required to inform the Applicant that the letter may not comply with the relevant statutory regime. As stated above in these Reasons, there is no such requirement in the legislation.
Mr Markus submitted that the Tribunal had provided all the information required by s.66(2) of the Act, including compliance with the requirements of s.66(2)(d)(ii), and that the Notification Letter was therefore an effective triggering of the time limits specified in the Notification Letter. I agree.
In the circumstances, I find that the information in the Notification letter complied with all the requirements of s.66(2) of the Act and that it is not necessary that the Notification Letter contain information about the 3 Day Rule.
Ground 1 also asserts that the Minister did not post the Notification Letter personally and that the Minister was required to do so in accordance with s.494B(4) of the Act. Mr Killalea’s submission in support of this ground is that ss.494B(2) and (3) refer to “the Minister (or his authorised recipient)” effecting personal service, whereas the requirement in s.494B(4) refers to “the Minister dating the document and then dispatching it”. Mr Killalea submitted that if the obligation in s.494B(4) was able to be carried out by way of an authorised officer, as in s.494B(2) and (3), the legislation could have said so.
Mr Markus submitted that it is relevant that ss.494B(2) and (3) are referring to the handing of a document to a recipient, whereas s.494B(4) is concerned with documents dispatched by pre-paid post or other pre-paid means. I note that s.494B(5) relates to faxing, emailing or sending documents by other electronic means.
I accept the submission of Mr Markus that s.497 of the Act makes clear that the there is no obligation on the Minister or his delegate to carry out administrative and clerical functions. Section 497 is as follows:
“Delegate not required to perform certain administrative tasks
(1) If the Minister delegates the power to grant or refuse to grant visas, the delegation does not require the delegate personally to perform any task in connection with the grant or refusal, except the taking of a decision in each case whether or not a visa should be granted.
(2) If the Minister delegates the power to cancel visas, the delegation does not require the delegate personally to perform any task in connection with the cancellation, except the taking of a decision in each case whether a visa should be cancelled.
(3) Nothing in subsection (1) or (2) shall be taken to imply that:
(a) a person on whom a power is conferred by or under this or any other Act; or
(b) a delegate of such a person;
is required personally to perform all administrative and clerical tasks connected with the exercise of the power.”
The posting, faxing, emailing of documents are undoubtedly administrative or clerical tasks. In the circumstances, there would be no need to insert in ss.494B(4) and (5) the words “the Minister or authorised officer” as those sections are so clearly dealing with administrative or clerical functions.
Accordingly, Ground 1 is not made out.

Ground 3

In support of Ground 3, Mr Killalea submitted that the 3 Day Rule was adverse information to the Applicant that should have been included in the Notification Letter. Mr Killalea submitted that, by that conduct, the Minister failed to provide natural justice by fairly giving to the Applicant adverse information, being the information about the 3 Day Rule.
Having found there was no obligation on the Delegate to include information in the Notification Letter of the 3 Day Rule and having rejected Mr Killalea’s submission that the failure to provide that information was “highly prejudicial” to the Applicant, Ground 3 must be rejected. The natural justice requirements of the Act are exhaustively set out in pt.5 div.5 of the Act, pursuant to s.357A of the Act.
The conduct of the review by the First Respondent was carried out in accordance with pt5. div.5 of the Act.
Moreover, I accept the submission of Mr Markus that even if Ground 3 was capable of disclosing a jurisdictional error of a failure to provide natural justice to the Applicant, which in my view it is not, there would be no utility in exercising the discretion of the Court to grant relief. This is because the Migration Review Tribunal does not have jurisdiction to consider a review by the Applicant of the Delegate’s decision unless such an application for review is made in accordance with the legislative regime. Having found that the Notification Letter was an effective notification to the Applicant of the Delegate’s decision, the consequence would be that the Tribunal would have no jurisdiction to entertain the Applicant’s review application. For those reasons, if any discretion arose for the Court to exercise relief, I would not exercise the discretion of the Court in the circumstances of this case.
Accordingly, Ground 3 is not made out.

Conclusion

In the circumstances, the Tribunal’s decision is not affected by jurisdictional error. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere. The application before this Court is dismissed with costs.

I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 13 February 2009