Patel v Minister for Immigration
[2012] FMCA 565
•29 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PATEL v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 565 |
| MIGRATION – Review of Migration Review Tribunal’s determination it did not have jurisdiction to entertain a review of a refusal of a student visa – application before Tribunal found to be out of time – finding that notification of refusal properly served – strict time limits apply – re-notification does not extend time or recommence from time re-notification is served – application dismissed. |
| Migration Act 1958, ss.66(1), 66(2), 338(2), 347(1)(b), 494B(4)(c)(i), 494C(4) Migration Regulations 1994, Reg.2.16(3), Reg.4.10(1)(a) |
| Minister for Immigration and Citizenship v Manaf [2009] FCA 963 H v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 153 Singh v Minister for Immigration and Citizenship [2011] FCAFC27 Patel v Minister for Immigration and Citizenship [2011] FMCA 223 |
| Applicant: | VIJAYKUMAR J. PATEL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1340 of 2011 |
| Judgment of: | O’Dwyer FM |
| Hearing date: | 7 March 2012 |
| Date of Last Submission: | 7 March 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 29 June 2012 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Mr Horan |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
That the application filed on 14 September 2011 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1340 of 2011
| VIJAYKUMAR J. PATEL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By his application, the Applicant seeks to review a determination of the Migration Review Tribunal (the Tribunal) dated 13 August 2011, which determination held that the Tribunal did not have jurisdiction to entertain an application for review in respect of an earlier decision by the First Respondent’s Delegate to refuse to grant the Applicant a student visa.
The issues are:
·
when should the Applicant be taken to have received notice of the Delegate’s decision which was sent by registered mail on
22 July 2010;
·the time available to the Applicant in which to issue a review application; and
·whether a re-notification later sent and received would allow time to run from the time of receipt of the re-notification.
Background
On 31 January 2008, the Applicant lodged an application for a Class TU student visa. In answer to question 19 on the application form the Applicant provided an “address for correspondence” at 21/34 Maroo Street, Hughesdale. In answer to question 20 on that form, the Applicant agreed to the Department communicating with him by fax, email or other electronic means and provided an email address. It is to be noted, however, that the form expressly provided that: “If this visa application is refused, you will be notified by mail”.
On 9 July 2008, a Delegate for the First Respondent refused to grant the visa. However, on review to the Tribunal (differently constituted from the Tribunal whose decision is under review in this proceeding), the Tribunal, on 27 April 2010, remitted the application to the Department for reconsideration.
Thereafter, communication by email ensued between the Applicant and the Delegate concerning the production of further information, but in particular a confirmation of enrolment (COE) in respect of the Applicant’s MBA course. The confirmation was not forthcoming and the reasons for that, I accept, were highly technical and to a significant degree beyond the power of the Applicant to provide in the timeframe set.
On 22 July 2010, the Delegate refused the application for the visa and notification of that decision was sent by registered mail to the address given at Hughesdale. It was returned unclaimed on 11 August 2010.
On 27 August 2010, the Applicant sent a further email to the Delegate in response to the Delegate’s email of 19 July 2010 and in that email made reference to “my new COE”. On 30 August 2012 the Delegate replied by email to the Applicant, informing him that the visa application had been refused on 22 July 2010. The Delegate also referred to the difficulties he had in his attempts to communicate with the Applicant, without success, including by email, in writing to his “last advised address” at Hughesdale, and phoning his mobile phone.
On 9 September 2010, the Applicant lodged an application to the Tribunal for review of the Delegate’s decision.
On 8 November 2010, the Tribunal (again differently constituted from the one under review in this proceeding) determined that it did not have jurisdiction to review the Delegate’s decision on the basis that the application had not been received by the Tribunal within the period prescribed by s.347(1)(b) Migration Act 1958 (the Act) and
reg. 4.10(1)(a) of the Migration Regulations 1994 (the Migration Regulations).
In that determination, the Tribunal found that the notification of the Delegate’s decision complied with s.66(2) of the Act and had been sent in accordance with s.66(1) and s.494B(4) to the last residential address provided to the Minister by the Applicant for the purposes of receiving documents.
The Tribunal therefore took the Applicant to have been notified of the decision on 2 August 2010, and the prescribed period within which an application could be lodged with the Tribunal ended on
23 August 2010. Bearing in mind that the application was lodged on
9 September, 2010, the application was found to have been lodged out of time and it was therefore not valid. The Tribunal consequently found it had no jurisdiction to entertain the application.
On 28 March 2011, an officer of the Department wrote to the Applicant and stated that his case had been assessed by the Department, which had accepted that the Applicant had not actually received the notification of the Delegate’s decision. Accordingly, a “re-notification” was sent to the Applicant.
In response to that re-notification, the Applicant lodged on
21 April 2011 an application to the Tribunal for review of the Delegate’s decision.
When this matter again came before the Tribunal on 13 August 2011, the Tribunal decided, which decision is the one subject of this proceeding, that it did not have jurisdiction to entertain the review.
The Tribunal’s reasons for doing so were:
a)The previous Tribunal had found that the Applicant had been correctly notified of the Delegate’s decision and it did not have jurisdiction to review that the Delegate’s decision because it was out of time;
b)That any further notification of the Delegate’s decision, that is, the “re-notification”, was of “no legal consequence”; that it did not recommence the period within which an application could validly be made to the Tribunal; and
c)The re-notification of the Delegate’s decision was not a Tribunal-reviewable decision under s.338(2) of the Act, and nor was the “re-notified decision”.
Contentions and Consideration
The Applicant, who appeared for himself, in summary, highlighted his earnestness in trying to comply with the request of the Department and the difficulties he had in providing the documentation requested, which difficulties he used his best endeavours to address. He also highlights his difficulties with communicating with the Delegate and his frustrated attempts to do so. He highlights the reality that he was not informed of the Delegate’s decision per the medium of registered mail being sent to the Hughesdale address, as evidenced by its return unclaimed.
He relies on the “re-notification” as establishing the commencement of the legislative timeframe in which to lodge an application for review on two bases. One being that it was the actual, written notification which came formally to him informing of the rejection of his visa application, and the other being, the Department’s acquiescence through the process of re-notification, established a new starting point from which time should run.
He highlights the unfairness of the process and the injustice done to him should the visa not be granted, as he only has one subject to complete by June 2012 before he qualifies for his MBA.
It is understood that should his visa be rejected, the bridging visa he presently holds will be cancelled in 28 days and he will be required to leave Australia.
Notwithstanding the unhappy situation the Applicant finds himself in, the First Respondent relies on what is now trite law; namely, that the process of informing the Applicant of the decision by sending it by registered mail to the stipulated mailing address for the service of documentation complies with the legislative framework and the failure of the Applicant to thereafter lodge an application for review within the prescribed time excludes the Tribunal from having jurisdiction.
Legislative Framework
Section 347(1)(b) of the Act and reg 4.10(1)(a) of the Migration Regulations together provide that an application for review of a Tribunal-reviewable decision must be given to the Tribunal within the prescribed period, which starts when the Applicant receives notice of the decision, or is taken to have received notice, and ends at the end of 21 days after the day on which the notice is received, or deemed to have been received.
Pursuant to s.66(1) of the Act and reg 2.16(3) of the Migration Regulations, the Minister must notify an Applicant of a decision to refuse to grant a visa by one of the methods specified in s.494B of the Act.
Under s.494B(4), one of the methods of giving a document to a person consists of dispatching the document by prepaid post to the last address for service provided to the Minister by the applicant for the purposes of receiving documents, or the last residential or business address provided to the Minister by the applicant for the purposes of receiving documents.
Section 494C(4) provides that, if the Minister gives a document to a person by the method in s.494B(4), the person is taken to have received the document seven working days after the date on the document (if the document was dispatched from a place in Australia to an address in Australia).
Section 494C(4) operates as a statutory deeming provision, as opposed to creating a rebuttable presumption which can be displaced by evidence that the person did not in fact receive the documents.
The deeming provision will operate even in circumstances where previous correspondence sent to the address had been returned unclaimed.
The Facts as Applied to the Legislative Framework
The first question to resolve is, when was the Applicant deemed to have received the letter dated 22 July 2010, which letter gave notice of the Delegate’s decision? The next question to determine is the date from which time should run and in which an application for review can be lodged.
As indicated earlier, the “address for correspondence” provided by the Applicant was the Hughesdale address. As at 22 July 2010, the Hughesdale address remained “the last address for service provided to the Minister by the recipient for the purposes of receiving documents” within the meaning of s.494B(4)(c)(i).
Although there was a means for communicating with the Applicant through email, and it had been the means of communication leading up to 22 July 2010, that fact did not operate to disqualify the Hughesdale address as an address for service for the purposes of s.494B(4)(c)(i).
Further, the Applicant’s request that the Delegate contact him by email did not preclude the Delegate from using any of the available methods for notification under s.494B of the Act. It was open to the Delegate to use any of the several alternative methods provided for under that section. The fact that the Applicant had provided an email address did not require the Delegate to communicate with the Applicant by electronic means.
There can be no doubt, in my view, that the earlier Tribunal correctly found that on 2 August 2010, the Applicant was taken to have received the notification letter dated 22 July 2010, giving him 21 days thereafter in which to lodge a review, which time expired on 23 August 2010.
[2] (2002) 118 FCR 153
The effect of a “re-notification” was considered in the Minister for Immigration and Citizenship v Manaf[1]. In that case, re-notification was sent, as in this case, but Sundberg J in Manaf held that a
re-notification letter from the Department did not have effect so as to confer jurisdiction on the Tribunal. Sundberg J preferred the first of the two alternative bases for the decision given by the Full Court in
H v Minister for Immigration and Multicultural Affairs[2];namely that:
“Once the Minister first notified the appellant of the decision, that exhausted the Minister’s obligation under s.66. If that be correct, any further “notifications”...would not be notifications under the statute and would have no legal consequence.”
[1] [2009] FCA 963
[4] [2011] FMCA 223
The decision in Manaf has been followed in subsequent cases, including Singh v Minister for Immigration and Citizenship[3], and
Patel v Minister for Immigration and Citizenship[4].
[3] [2011] FCAFC 27
It cannot be said in those circumstances, therefore, that the
re-notification letter sent by the Delegate on 28 March 2011 extended time, or provide a new starting point from which time would run.
It also did not give rise to any estoppel against the First Respondent.
Conclusion
Despite what I understand to be the earnestness and diligence of the Applicant, he finds himself caught by the strict legislative framework applying in these types of cases.
The Tribunal whose decision is under review was correct in finding it did not have jurisdiction to entertain the Applicant’s application for review.
For the reasons set out above, there can be no other determination of this matter than to dismiss his application.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Date: 29 June 2012
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