Mohamed v Minister for Immigration
[2008] FMCA 1633
•4 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MOHAMED v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1633 |
| MIGRATION – Review of Migration Review Tribunal decision – Tribunal found it lacked jurisdiction as application made out of time – delegate’s decision not subject to Tribunal review as the applicant lacked a sponsor – Tribunal made the right decision but for the wrong reason – time limits on review not relevant to non MRT reviewable decisions – Tribunal decision set aside. |
| Migration Act 1958 (Cth), ss.65, 66, 338, 347, 348, 494B, 494C, 494D Migration Regulations 1994 |
| Applicant: | WALID MOHAMED |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2451 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 4 December 2008 |
| Delivered at: | Sydney |
| Delivered on: | 4 December 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms J Dinihan Clayton Utz |
INTERLOCUTORY ORDERS
A writ of certiorari shall issue quashing the decision of the Migration Review Tribunal signed on 18 August 2008.
The applicant has leave and liberty to file and serve on the respondents an amended application no later than 31 December 2008 seeking review of the decision of the delegate made on 16 May 2008.
If an amended application is filed and served on the respondents in accordance with order 2, the parties are to file and serve any additional affidavit or other material on which they wish to rely, together with an outline of legal submissions and list of authorities no later than 30 January 2009.
The hearing of this matter be adjourned for further directions or hearing as appropriate at 10.15am on 19 February 2009.
Costs of today’s hearing are costs in the proceedings.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2451 of 2008
| WALID MOHAMED |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
I have before me an application filed on 22 September 2008. The application seeks review of a decision of the Migration Review Tribunal (“the Tribunal”) made on 18 August 2008 and notified to the applicant by letter dated 21 August 2008. The Tribunal found that it did not have jurisdiction in the matter because the review application was filed late.
The application before the Court contains one ground:
I am aggrieved because The Tribunal, I believe, made an error in fact and therefore in law in its calculation of the starting of the counting date for the period allowed for postal delivery of the Department of Immigration and Citizenship refusal letter to me. It is my contention that the seven-day period allowed should start on the day of the alleged posting of the decision letter which the Tribunal acknowledges was Monday May 19. Seven working days from that date would have set the date at Wednesday May 28. Then, 21 calendar days allowed for lodgement at the MRT would set a final lodgement date of Wednesday 18 June. This was the actual date of lodgement according to my MRT receipt and the MRT Decision.
It is therefore my simple contention that in applying the requirements of the Migration Act the Tribunal relied on incorrect facts.
Essentially, the applicant complains that he was only one day late in lodging his review application and that the Tribunal miscounted the relevant period.
I received as evidence the court book filed on 11 November 2008. I also received as an exhibit[1], a letter dated 12 May 2008 from Mr John Bulbeck of International Migration Support to the Minister's delegate. That letter from the applicant's migration agent informed the delegate that the applicant's sponsor had withdrawn with effect immediately.
[1] exhibit R1
The relevant background facts and statement of the law are set out in paragraphs 2 through to 12 of the Tribunal's decision[2]:
2.The applicant applied to the Department of Immigration and Citizenship for a Temporary Business Entry (Class UC) visa on 16 August 2007. The delegate decided to refuse to grant the visa on 16 May 2008 and notified the applicant of the decision and his review rights by letter dated 16 May 2008 and posted on 19 May 2008.
3.The applicant applied to the Tribunal on 18 June 2008 for review of the delegate’s decision.
4.The question that arises in this case is whether the Tribunal has jurisdiction. Whether it does depends on whether the application lodged on 18 June 2008 is an application properly made under s.347 of the Act for review of the delegate’s decision.
5.The Tribunal formed the preliminary view that it did not have jurisdiction because the application for review was received outside the prescribed time limit. The Tribunal wrote to the applicant on 2 July 2008 inviting submissions on this issue. The Tribunal received written submissions on 24 July 2008.
[2] court book, pages 79-80
Relevant law
6.The Tribunal’s jurisdiction arises if an application is properly made under s.347 of the Act for review of an MRT-reviewable decision: s.348 of the Act. Section 338 of the Act and r.4.02(4) of the Migration Regulations 1994 (the Regulations) set out the various decisions that are MRT-reviewable decisions. A decision to refuse to grant a Temporary Business Entry (Class UC) visa under s.65 of the Act is covered by s.338(2). Section 347(1)(b) requires an application for review to be given to the Tribunal within the prescribed period. The prescribed periods are set out in r.4.10 of the Regulations and commence on the day on which the applicant is notified of the decision.
7.In respect of an applicant who has applied for review of an MRT-reviewable decision covered by s.338(2) and is not in immigration detention when notified of the delegate’s decision, the application for review must be lodged at a registry of the Tribunal within a period not later than 21 days after the day on which notice is received: s.347(1)(b)(i) and r.4.10(1)(a). Thus, notification of the decision provides the reference point for the commencement of the limitation period provided for in s.347(1)(b)(i) and r.4.10(1)(a). There is no provision for extension of time. An application sent to the Tribunal by post or by fax or other electronic means is taken to be given to the Tribunal when it is received at a registry of the Tribunal: r.4.10(5) and (6).
8.The provisions relevant to this matter that deal with notification of a decision to refuse to grant a visa are contained in ss.66, 494B, 494C and 494D of the Act and r.2.16 of the Regulations.
9.Section 66(1) provides that 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. Regulation 2.16 provides that for the purposes of s.66(1), the Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in s.494B. Section 494B specifies alternative methods for giving a document to a person.
10.One of the methods specified in s.494B consists of the Minister dispatching the document within 3 working days of the date of the document by prepaid post or other prepaid means to the last address for service or the last residential or business address provided to the Minister by the recipient for the purpose of receiving documents: s.494B(4). If a document is given to a person by this method and the document was dispatched from a place in Australia to an address in Australia, the person is taken to have received the document 7 working days (in the place of the address) after the date of the document: s.494C(4)(a). This will be so even if the document was never in fact received. Therefore, if the notice of a decision to refuse to grant a visa was sent in accordance with s.494B, from a place in Australia to an address in Australia, the prescribed period within which a review application must be lodged with the Tribunal commences 7 working days after the date of the notice.
11.If an applicant has nominated an 'authorised recipient' by giving the Minister written notice of the name and address of another person authorised by the applicant to receive documents in connection with matters arising under the Act or the regulations, the Minister must give the authorised recipient, instead of the applicant, any documents that the Minister would otherwise have given to the applicant: s.494D(1) of the Act. If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the applicant: s.494D(2) of the Act. However, this does not prevent the Minister giving the applicant a copy of the document.
12.Section 66(2) provides that notification of a decision to refuse a visa must contain certain information about why the visa was refused and, if there is a right of review, how to apply for review of the decision.
The Tribunal dealt with the issue of jurisdiction in paragraphs 13 through to 25 of its reasons[3]:
[3] court book, pages 80-81
13.The Tribunal has before it the Department’s file.
14.The Tribunal has also had regard to the submissions received on 24 July 2008 in relation to the question of jurisdiction.
15.The material before the Tribunal indicates, and the Tribunal finds, that the applicant was not in immigration detention when notified of the decision.
16.The Tribunal finds that the applicant is purportedly seeking review of an MRT-reviewable decision covered by s.338(2) and that the applicable prescribed period is 21 days, starting when the applicant was notified of the decision: s.347(1)(b)(i) and r.4.10(1)(a).
17.The Tribunal is satisfied that the contents of the delegate’s decision notice complied with the requirements of s.66(2).
18.The Department’s mail and distribution section has provided information that confirms that the decision notification was dispatched on 19 May 2008, within 3 working days of the date of that notice.
19.The material before the Tribunal indicates that the applicant gave the Minister written notice under s.494D of the name and address of an authorised recipient and that the decision notice, dated 16 May 2008, was sent by prepaid post on 19 May 2008 from a place in Australia to the applicant's authorised recipient at an address in Australia.
20.The Tribunal finds that the decision notice was dispatched within 3 working days of the date of the letter to the correct address, in accordance with s.66(1) and s.494B(4) and 494D. Therefore, the applicant is taken to have received the notice on 27 May 2008, being 7 working days after the date of the notice.
21.In his submission to the Tribunal the applicant stated that he would leave it to the Tribunal to make the final decision regarding the validity of his application given that he has no knowledge of the relevant law.
22.Having considered the applicant’s submission the Tribunal finds that the applicant was properly notified of the delegate’s decision and is taken to have been notified on 27 May 2008. Therefore, the prescribed period of 21 days within which the application for review could be lodged ended on 17 June 2008.
23.The application for review was not received by the Tribunal until 18 June 2008, after the prescribed period had expired.
24.As the application for review was received by the Tribunal outside the mandatory time limit, it is not a valid application and the Tribunal has no jurisdiction in this matter.
25.The Tribunal also notes that the delegate’s decision does not appear to be an MRT-reviewable decision under s.338(2)(d), as at the time of the lodgement of the application for review on 18 June 2008, the applicant was not sponsored by an approved sponsor. As indicated in the delegate’s decision the proposed sponsor P & H Pty Ltd had withdrawn it’s sponsorship on 12 May 2008.
I am satisfied on the basis of my examination of the court book and the applicable legislation that the Tribunal correctly assessed the review period that would have been applicable if the delegate’s decision had been reviewable by the Tribunal. However, as the Tribunal noted in paragraph 25 of its decision[4], the delegate's decision did not appear to be a Migration Review Tribunal reviewable decision pursuant to s.338(2)(d) of the Migration Act 1958 (Cth) (“the Migration Act”):
[4] court book, page 81
(2)A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non‑citizen a visa is an MRT‑reviewable decision if:
…
(d) where it is a criterion for the grant of the visa that the non‑citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:
(i) the non‑citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or
(ii) an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.
The delegate's decision on page 60 of the court book records:
On 12 May 2008 the Department was advised by the sponsor that they wished to withdraw the nomination of Mr Walid Mohamed for the position of Chef, because of personal differences. They advised that the company's withdrawal is effectively immediately.
Save for the fact that exhibit R1 establishes that the notification came from the applicant's migration agent rather than directly from the sponsor, the delegate was correct. The delegate concluded that the applicant did not qualify for the class of visa he sought because he was no longer nominated by an employer who was an approved business sponsor for the purposes of clause 457.223(4) of the Migration Regulations 1994.
The applicant told me from the bar table that at the time of the delegate's decision he knew another chef called José who was willing to be a sponsor. He could not recall José's last name. It does not appear, however, that Jose made his own sponsorship application prior to the purported application to the Tribunal. The consequence, in my view, is that pursuant to s.338(2)(d) of the Migration Act, the delegate's decision was not a Migration Review Tribunal reviewable decision. It follows that the Tribunal made the correct decision that it lacked jurisdiction but for the wrong reason. Because the delegate's decision was not a Migration Review Tribunal reviewable decision, the prescribed time limits were irrelevant.
By basing its decision on an irrelevant consideration, the Tribunal committed jurisdictional error. The applicant is entitled to relief in the form of the Constitutional writ of certiorari. No other relief as against the Tribunal is appropriate. That is because the Tribunal lacked jurisdiction and cannot be compelled by order of this Court to do something it has no jurisdiction to do.
The applicant indicated that he would like to take up the opportunity to have this Court review the delegate's decision. The Minister's solicitor was instructed that the Minister reserved his position in relation to that issue. The relevant questions would be whether the Court has jurisdiction to review the delegate's decision, and if the Court does have jurisdiction, whether the delegate's decision is vitiated by any jurisdictional error. I will make orders for the further consideration of those issues if the applicant amends his application.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 8 December 2008
0
2