Nguyen v Minister for Immigration
[2009] FMCA 933
•25 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NGUYEN v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 933 |
| MIGRATION – Judicial review of decision of Migration Review Tribunal – alleged jurisdictional error – late application for review to Migration Review Tribunal – application dismissed. |
| Migration Act 1958, ss.66(2)(d), 66(2)(d)(ii), 66(2)(d)(iv), 347(1), 477, 494(c)(5) Migration Regulations 1994, reg.4.3(1)(ii), 4.10, 4.10(1)(a) |
| Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1292 Zhan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 469 WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 210 ALR 190 Song v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 685 Maroun v Minister for Immigration and Citizenship [2009] FMCA 535 Minister for Immigration and Citizenship v SZKKC (2007) 241 ALR 523 Bin Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 SZBMF v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 485 SZJUA v Minister for Immigration and Citizenship [2007] FCA 1184 Zhang v Minister for Immigration and Citizenship (2007) 161 FCR 419 H v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 153 |
| Applicant: | DINH BAO NGUYEN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 186 of 2009 |
| Judgment of: | Burchardt FM |
| Hearing date: | 4 August 2009 |
| Date of Last Submission: | 4 August 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 25 September 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr G. Hill |
| Solicitors for the Applicant: | Erskine Rodan & Associates |
| Counsel for the Respondents: | Mr A. Krohn |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,865.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 186 of 2009
| DINH BAO NGUYEN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision dated 19 January 2009 of the Migration Review Tribunal (“the Tribunal”). The applicant had applied to the Tribunal for a review of a decision of a delegate of the first respondent refusing to grant a visa to the applicant. The Tribunal determined that it had no jurisdiction because the applicant had been notified on 13 November 2008 of the delegate’s decision and was out of time when he applied to the Tribunal on
9 December 2008.
The applicant pressed the grounds set out in subparagraphs (a), (d) and (e) of the particulars to paragraph 1 of his amended application and expressly abandoned particulars (b) and (c).
The matters raised are highly technical and cannot be stated shortly. Notwithstanding the skill with which counsel propounded his arguments for the applicant, I have come to the view that none of the matters advanced by the applicant can be sustained and the application must therefore be dismissed.
The Facts
The facts in this matter are not controversial and this history draws upon the written submissions of both parties together with matters asserted without contradiction from the bar table during the hearing itself.
On 4 March 2008, the applicant’s then registered migration agent applied online on his behalf for a visa.
The application included the email address and facsimile number of the migration agent and did not include any statement that she did not consent to receive electronic communication on the applicant’s behalf from the Minister.
On 13 November 2008, a delegate of the first respondent refused to grant a visa to the applicant. On that date also the Minister’s delegate sent a message by email to the applicant’s migration agent notifying the refusal and attaching information relating to it in the form of a letter dated 13 November 2008 from the delegate together, as I understand it it is conceded, with other documents including (CB41-44) a leaflet from the Tribunal itself which inter alia gave addresses at which an application for review could be made.
On 13 November 2008, the migration agent was outside Australia and did not become aware of the refusal until 18 November 2008.
On 28 November 2008, the applicant told the agent to apply to the Tribunal and the application was filed on 9 December 2008.
On 9 December 2008, the Tribunal acknowledged (by fax to the agent) receipt of the application (CB53).
On 16 December 2008, the Tribunal wrote to the migration agent inviting comment and further information in relation to the issue of date of notification and indicated an initial assessment that it was out of time (CB138).
On 29 December 2008, the migration agent replied to the Tribunal submitting (CB140) that the date of notification should be calculated according to the usual practice of the Department in sending refusal letters by registered post.
On 19 January 2009, the Tribunal made the decision earlier referred to that it did not have jurisdiction in the matter from which this application now springs.
The applicant dealt with the grounds of the application in the order of 1(a), 1(e) and 1(d). I will follow the same pattern.
Ground 1(a) - Error Constituted by Failing to State an Address where Application for Review can be made
In substance what the applicant said about this was that the Tribunal fell into jurisdictional error because the letter sent to the migration agent did not itself specify an address where application could be made but merely referred to another document (CB41-44 the Tribunal’s own document which gave such details).
In Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1292 (“Chan Ta Srey”) at [45] Gray J observed:
“[45] The evident purpose of the provisions in s 66(2) of the Migration Act is to ensure that the legislative scheme in relation to rights of review of decisions operates fairly. The intention is that not only should an unsuccessful applicant for a visa be told that his or her application has been unsuccessful, but he or she should also be given enough information to pursue the right of review if disposed to do so. That information includes the criterion or criteria that the applicant failed to satisfy, any legislative provision that prevented the grant of a visa, in most cases the reasons why the criterion was not satisfied or the provision prevented the grant of the visa, and the steps required to make an application to review the decision. Without all of this information, an unsuccessful applicant would be disadvantaged in the operation of the scheme, in which the time limits are strict and in which there exists no power, discretionary or otherwise, to enlarge them. …
[46] In this context, it is easy to see that each element of the requirements of s 66(2) is an integral part of the scheme of notification. The absence of any one item of information would disadvantage an unsuccessful applicant. There is, therefore, a strong case for saying that, if one of the requirements of s 66(2) has not been complied with, the duty of notification imposed by the section has not been carried out. Some support for this view is to be found in Zhan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 327. In that case, the MRT had decided that it had no jurisdiction to review a decision of a delegate of the Minister to refuse Ms Zhan a visa. It had done so on the basis that the application for review had been made outside the limited time after the notification of the delegate’s decision. Allsop J found that the document purporting to be a notification was deficient in two respects. In the first place, it failed to specify a criterion for the visa, which Ms Zhan had not satisfied. In the second place, it failed to state where an application for review could be made, apparently because a leaflet giving the addresses of registries of the MRT had been inadvertently not included with the letter. Accordingly, the purported notification failed to comply with s 66(2)(a) and (d)(iv)…”
The applicant submitted that the Minister should himself have notified the address of the Tribunal and not have sought to have done so by merely providing a copy of a brochure from the Tribunal, which is of course a third party.
An examination of the decision of Allsop J in Zhan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 469 (“Zhan”) at [64] – [66] shows that Allsop J, at least in my respectful opinion, did not adopt quite so strict an approach towards notification in this way.
In that case at [64] his Honour noted that:
“64. … Nevertheless, the purpose is to give information as to where the applicant can “make the application”, that is, initiate it. The applicant was told that lodgement of documents had to be at “a registry of the Tribunal”. No address was given. A leaflet giving that information was not included with the letter and decision record. Mr Smith says that the applicant only had to look up the white pages of the Sydney phone book to find the entry annexed to these reasons.
65. However that entry gave no information as to whether level 3, 44 Market St in Sydney was a registry of the Tribunal or its head office or the site of some other activity of the Tribunal. Further inquiry needed to be made.
66. The scheme of the Act and regulations is such as to place the risk of postal delays on applicants. The consequences of that are reflected in the facts of this case. Neither the Court nor the Tribunal is empowered to give any extension of time. Parliament, as part of this scheme, requires the Minister or his delegate to provide sufficient information to the applicant to facilitate the timeous filing of an application for review directed to the relevant subject matter. One aspect of that is the requirement to tell the applicant where he or she is to go to make an application. If the registries of the Tribunal had been identified in the phone book it may be that the letter was adequate. I have some doubts about that, but, with no assistance given to the applicant as to the location of the registry of the Tribunal in communication or the phone book, I do not think the delegate has stated in the communication “where” the application may be made.”
I would take that passage to lead to a clear inference that had the leaflet that was not included been included his Honour would have found that the requirement “to tell the applicant where he or she is to go to make an application” would have been met.
The case of WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 210 ALR 190 (“WACB”) at [37] upon which the applicant relies is not in my view of assistance as it was concerned with a different statutory scheme. The first respondent submitted that the terms of s.66(2)(d) of the Migration Act 1958 (“the Act”) did not require the information as to where the application for review can be made to be in the notification letter itself. It is in fact conceded by the applicant that that is so. The submission of the first respondent is that it does not matter who actually writes the document saying where the application for review can be made. In the ultimate, I accept that submission.
In addition to the passages in Chan Ta Srey and Zhan, already referred to, which in my view generally support this proposition, counsel for the first respondent referred me to cases of Song v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 685 and Maroun v Minister for Immigration and Citizenship [2009] FMCA 535 which are decisions of Smith FM and Driver FM respectively. It is sufficient to say that I accept the Minister’s submission that those two decisions turned on exactly the point that is raised here, albeit that scarcely surprisingly the factual situations are slightly different.
I do not accept, as counsel for the applicant submitted, that the factual differences in those decisions alter the purport of them. I am bound to follow those decisions unless I think they are wrong and I do not.
The weight of authority clearly supports the conclusion that the provision of the Tribunal’s documents setting out details of where the application should be made complied with the requirement contained in s.66(2)(d)(iv) of the Act to notify the applicant where the application for review can be made.
I do not regard the decision in Minister for Immigration and Citizenship v SZKKC (2007) 241 ALR 523 to be of any different effect. It, like WACB, was concerned with what was meant by the word “give” or “given”. In this case, in my view, it is clear that the sending of the material to the applicant’s representative constituted effective notice.
Ground 1(e) – Error in the Construction of Regulation 4.10(1)(a) – Receipt of Notice of the Decision
This ground turned upon the proper construction of regulation 4.10 of the Migration Regulations 1994 (“the Regulations”). It is common cause that regulation 4.10(1)(a) has the effect that an application for review of this sort must be given to the Tribunal within a period which starts when the applicant receives notice of the decision and ends at the end of 21 days after the day upon which notice is received.
Section 494(c)(5) of the Act provides that if the Minister gives a document to a person by email the person is taken to have received the document at the end of the day upon which the document is transmitted. The parties referred to a number of cases in this regard. Most of these were not helpful to the applicant and counsel sought to distinguish them.
Counsel for the Minister laid stress on the observations of the Full Court of the Federal Court in Bin Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172. Counsel in particular drew my attention to the observations of the Full Court at [5] where in considering s.347(1) of the Act the Full Court said:
“… Relevantly, reg 4.10(1)(a) prescribes a period of 21 days ‘after the date on which the notice is received’. This is in contrast to para 347(1)(b)(i) of the Migration Act which refers to a period of time ‘after notification of a decision’. Nothing turns on this inconsistency.”
The terms of that judgment, particularly at [13] – [14], suggest that the contention for which the Minister contends is correct.
In SZBMF v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 485 at [5] Graham J was dealing with a Refugee Review Tribunal matter and regulation 4.3(1)(ii) which has slightly different language. Nonetheless, the purport of his Honour’s decision, particularly at [15] – [18], is clearly in favour of the construction contended for the Minister.
Once again, I accept that WACB and SZKKC are distinguishable. The observations of Gilmour J in SZJUA v Minister for Immigration and Citizenship [2007] FCA 1184 at [30] point out, in my respectful view correctly, that there is a distinction between cases involving deemed notification (such as here) and those involving actual notification as required under s.477 of the Act which was considered in SZKKC.
Likewise, I repeat the decision of the High Court in WACB was before the deeming provisions later introduced (see WACB at [40]).
The state of the authorities seems to me clearly to support the Minister’s submissions and I do not think the applicant’s point can be made out.
Ground 1(d) – The Dual Notification Point
Here the applicant submits that there were two notifications. The first was by email, with which matter I have already dealt, and the second in writing.
It was submitted that the transmission by post would have given a more generous time limit, and indeed that is so were it the case. It seems clear that the letter was sent by post. Counsel for the applicant was not quite certain about this but counsel for the Minister very properly conceded that the letter at CB35 shows that the original letter was posted. Counsel for the Minister also, in my opinion very properly, was prepared to concede that it could be assumed that the letter was posted within three working days.
Nonetheless this ground cannot be made out. I accept that s.66(2)(d)(ii) provides that a letter notifying the applicant of the rejection of their application must specify the time in which the review may be made. I also accept that the notification letter from the Minister (CB33) stated:
“An application for review of this decision must be made to the MRT within 21 days after you are taken to have received this letter. As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted. The application for review cannot be accepted after that date.”
In Zhang v Minister for Immigration and Citizenship (2007) 161 FCR 419 the Full Court of the Federal Court dealt with a case where the Department had sought to send a notification letter by email but failed to do so and had also posted it. The Court, not surprisingly, found the email was of no effect because it was sent to the wrong address and that the letter actually served by mail was in fact effective.
The email was, however, sent at a later date by email again. At [23] the Full Court said:
“The appellant’s case on this regulation appears to fall into two parts. The first, and ambitious, claim is that the delegate chose two methods of notification, the one by email, the other by pre-paid post. The email method was only completed, it is said, on 7 April 2006 when, at the migration agent’s request, the delegate provided by email the cancellation letter and decision. It is then said that when two methods of notification are adopted having inconsistent days on which receipt is taken to have occurred and hence from when time ran for making a review application, the recipient was entitled to select the day most favourable to him or her. …”
At [24] – [25] the Full Court considered the case of H v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 153
(“H v Minister”). It is clear that the particular facts of that latter case were materially different to those here because notification had been sent both to the applicant and to his agent. The Full Court did not express a concluded view about the analysis expressed by the differently constituted Full Court in H v Minister.
As is so frequently the case, the matters arising here have slight but significant differences from those cases to which I have been referred. In the ultimate, I not only accept that the posting of the letter would not have been a valid separate notification because the letter referred to the time running from the date of receipt by email (which of course was wrong if it was to be notification by post) but I accept the submission at paragraph 43 of the first respondent’s written submissions.
I accept the submission there made that it is inherent in the concept of notification that you can only be notified once. Cases where two notifications have been taken to have occurred turned on different facts and in different circumstances.
As Gray J observed in Chan Ta Srey at [45], already referred to, the purpose of the provisions of the Act is to “ensure that the legislative scheme in relation to rights of review of decisions operates fairly”. Some might say that the structure of the Act and Regulations, with un-extendable time limits having very severe consequences for applicants, might be incapable of achieving that result in any event.
Here, however, there is no suggestion that the migration agent was not the person authorised to receive information on behalf of the applicant. It is equally clear that the migration agent was sent the delegate’s letter by email and the email was received in the sense that there was no mechanical malfunction to prevent it being accessed.
I accept the submission of the Minister that the posting of the letter and its later receipt was merely a belt and braces proposition which did not in any event satisfy the requirements for valid notification for the reasons already given.
The applicant would seem prima facie to have good grounds for complaint against the agent who was on notice of the application within time and could, one would have assumed, have lodged some application and then sought to amend the grounds at a later stage. It is common for such applications to occur.
Nonetheless, that is a matter between the applicant and his former migration agent. It does not alter the fact that this ground of application cannot be made out.
Conclusion
For the reasons given the application must be dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Ms B. Evans
Date: 25 September 2009
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