Patel v Minister for Immigration
[2008] FMCA 1035
•7 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PATEL v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1035 |
| MIGRATION – Tribunal dismissed application as fee not paid – finding of no jurisdiction – applicant claimed not to have received notification of rejection of fee waiver application – application without merit. |
| Migration Act 1958 (Cth), s.347 Migration Regulations 1994, reg.4.10(1)(b) |
| Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364 MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 |
| Applicant: | RINKESHKUMAR RAMESHBHAI PATEL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1673 of 2007 |
| Judgment of: | Burchardt FM |
| Hearing date: | 10 July 2008 |
| Date of Last Submission: | 10 July 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 7 August 2008 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr Felman |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
That the application be dismissed.
That the Applicant pay the First Respondent’s costs fixed at $5,000.00.
That there be a stay of 60 days
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1673 of 2007
| RINKESHKUMAR RAMESHBHAI PATEL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By an application filed on 7 December 2007 Mr Patel seeks judicial review of the decision made by the Migration Review Tribunal
(“the Tribunal”). That decision was given under cover of a letter dated 8 November 2007 sent to Mr Patel at his address for service, as nominated by him, namely 25 Whites Road, Werribee South.The statement of decision given by the Tribunal member shows that, as is in fact not the subject of argument, the Applicant's student visa was cancelled on 20 August 2007. This was because of admitted non‑attendance by the Applicant at his course for the prescribed amount of time set out in the Migration Act 1958 (“the Act”) and in the Migration Regulations 1994 (“the Regulations”).
Mr Patel applied to review the delegate's decision on 24 August 2007. His application once again gave as his address 25 Whites Road, Werribee South. On the same day, 24 August 2007, he applied to the Tribunal to waive the applicable fee on the grounds of financial hardship. On 27 August 2007 his application was acknowledged and in due course, as the Court Book shows, he provided documents in support of his fee waiver application. On 25 September 2007 the Tribunal wrote to the Applicant notifying him it had rejected the fee waiver application (CB 96‑97).
Consistent with the authority of the Full Court of the Federal Court in Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364 (“Braganza”) the Tribunal gave the Applicant 14 days from the deemed receipt of the notification, which itself would be seven days, to provide payment of the fee.
It is apparent that deemed notification arises under the provisions taken cumulatively of reg.4.10(1)(b), and s.347 of the Act.
The Applicant did not pay the fee by 18 October 2007 and the matter was then considered by a Tribunal member leading to a decision, as I have said, signed by the Tribunal on 7 November 2007 and forwarded to the Applicant on 8 November 2007.
The Tribunal's conclusion was that it had no jurisdiction to review the matter because the fee had not been paid.
The Applicant received the 8 November 2007 letter sent to him at
25 Whites Road, Werribee South, and filed his application - as I have said, giving 25 Whites Road as his address - and filed an affidavit in support. The application sought judicial review of the Tribunal's decision but did not in fact give any grounds in support of the application.The Applicant’s affidavit essentially went to factual issues as to the effect upon Mr Patel of the death of his grandfather in April of 2007; it was to the effect that he had been depressed and unable to attend class as a result. The affidavit that he filed annexed the letter from the Tribunal dated 8 November 2007, sent to him at 25 Whites Road, Werribee South.
At the hearing before me and, as far as I can see, for the first time, the Applicant asserts that he did not receive the Tribunal's letter of
25 September 2007 notifying him of the requirement to pay the fee of $1,400.00 by 18 October 2007. He went on to say that upon receipt of the Tribunal's later letter notifying of the rejection of his application he spoke to a member of the Tribunal and explained the non‑receipt of the letter and explained that he could pay the fee. He said to me today that he could have paid the fee.There are two things to be said about this. First, all letters other than the Tribunal’s letter of 25 September 2007 were sent to the Applicant at the address he nominated and he received them. It is surprising, to say the least, that he did not receive this particular one. It is also surprising, notwithstanding the fact that he is self‑represented, that he did not seek to make more of this point before this Court by bringing this important (potentially, at least) issue to the Court's attention earlier.
The second point to be made is that the evidence that he had not received the Tribunal's letter self‑evidently was not before the Tribunal. It is not generally open to the applicant to seek to put new evidence before this Court in order to challenge a finding of fact made by the Tribunal (per Nicholson J in MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8]).
Noteworthily, at an interim point orders were made on 6 February 2008 by Registrar Luxton requiring Mr Patel to file and serve an amended application and supplementary documents, if any, on or before 27 March 2008 and to file and serve contentions of fact and law on or before 12 April 2008. In fact the Applicant filed no amended application, no supplementary documents and no contentions of fact and law.
I do not make these observations to criticise the Applicant who, as a self‑represented litigant in an alien land might reasonably be expected to struggle to comply with formalities; rather, I set these matters out to emphasise that the Applicant has had every proper opportunity to advance whatever evidence and/or case otherwise that he would wish to put forward.
In my opinion, it is more probable than otherwise that the Applicant did receive the Tribunal's notification about paying his fee but simply failed, for whatever reason, to do so. Even if he did fail to receive the documentation, it is plain that the Tribunal's decision was correct.
At the time of the Tribunal's decision in November 2007 the Applicant had not, as he was required, paid the fee that the Regulations required him to pay.I remain somewhat concerned that there may be a lacuna in the process because where a party genuinely does not receive notification from the Tribunal of the rejection of the fee waiver application, Braganza has no work to do and a legitimate Applicant may suffer hardship. Nonetheless, in the ultimate these are matters for Parliament and as things presently stand I must hold the application to be deficient totally in merit. It must be dismissed, with costs.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Brooke Evans
Date: 7 August 2008
2
2