Rana v Minister for Immigration
[2014] FCCA 1488
•10 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RANA v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1488 |
| Catchwords: PRACTICE AND PROCEDURE – Observations on the harsh consequences of the Tribunal’s inability to extend time for a review application. |
| Legislation: Migration Act 1958 (Cth), ss.66, 338, 347, 494B, 494C |
| Durrani v Minister for Immigration [2005] FCA 629 SZSKX v Minister for Immigration & Anor [2014] FCCA 157 |
| Applicant: | ARUN SJB RANA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2944 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 10 July 2014 |
| Delivered at: | Sydney |
| Delivered on: | 10 July 2014 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms S Burnett Clayton Utz |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2944 of 2013
| ARUN SJB RANA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is yet another case involving the harsh consequences of the time limit provisions of the Migration Act 1958 (Cth) (Migration Act) and Migration Regulations 1994 (Cth) (Regulations) concerning review applications to the Migration Review Tribunal (Tribunal). On 5 November 2013, the Tribunal decided that it did not have jurisdiction in the review before it because the review application was not made within the prescribed time limit. Background information is conveniently set out in the Minister’s written submissions filed on 3 July 2014.
The applicant, Mr Rana, is a national of Nepal. On 15 March 2012, he made an application for a temporary spouse visa and Class BS (Partner - Residence) (Subclass 801) visa (permanent spouse visa).[1]
[1] Court Book (CB) at 1 to 53.
On 4 September 2013, the Minister’s delegate refused the application for a temporary spouse visa and, consequently, the application for a permanent spouse visa (primary decision).[2]
[2] CB at 133 to 150.
On 4 September 2013 at 1:31pm, the primary decision was allegedly emailed to Mr Rana by the Minister’s Department (Department).[3]
[3] CB at 133 and affidavit of Gregory Miiller sworn 30 April 2014 (Miiller Affidavit) at [9].
On 15 September 2013, Mr Rana emailed the Department, asserting that he had not received the primary decision but had been informed of the primary decision by a letter from Medicare dated 6 September 2013.[4]
[4] CB at 151.
On 17 September 2013, the Department emailed Mr Rana a further copy of the primary decision, noting that the email was originally sent on 4 September 2013.[5]
[5] CB at 153.
On 27 September 2013, Mr Rana applied for review of the primary decision to the Tribunal.[6]
[6] CB at 156 to 167.
On 17 October 2013, the Tribunal wrote to Mr Rana inviting him to comment on the validity of his application for review.[7]
[7] CB at 177.
On 29 October 2013, Mr Rana wrote to the Tribunal stating he became aware of the primary decision on receipt of a letter from Medicare.[8]
[8] CB at 178.
Tribunal's decision
The Tribunal requested and obtained evidence from the Department that:
a)the primary decision was emailed to Mr Rana on 4 September 2013 to the correct email address of Mr Rana, namely [email protected]; and
b)the primary decision was attached to the email.[9]
[9] CB at 185, [4] and 186, [9] and [10].
Based on the evidence received from the Minister, the Tribunal concluded that the primary decision was sent to Mr Rana on 4 September 2013.[10] The Tribunal found that:[11]
a)in accordance with s.494C of the Migration Act, Mr Rana was taken to have been notified of the primary decision on 4 September 2013;
b)the prescribed period within which Mr Rana’s application for review could be lodged ended on 25 September 2013;
c)Mr Rana’s application for review was not received until 27 September 2013 and was therefore not made in accordance with the Act;
d)it did not have jurisdiction in the matter.
[10] CB at 186, [11].
[11] CB at 186, [12].
The present application
Mr Rana relies upon a show case application filed on 27 November 2013. There are three grounds in the application:
1.The Department of Immigration failed to notify me of the decision to refuse my application and the Migration Review Tribunal failed to accept my review which was lodged on time.
2.The Tribunal failed to provide evidence that it did not have jurisdiction in this matter.
3.The Migration Review Tribunal Failed to accept that my review of 1 October 2013 was made validly.
Mr Rana relies upon his affidavit made on 18 February 2014 in support of his application. He was not required for cross‑examination. Mr Rana also tendered a bundle of documents dealing with problems with Hotmail accounts, which I accepted as an exhibit.[12]
[12] Exhibit A1.
The Minister relies upon the court book filed on 29 January 2014.
The Minister also relies upon the affidavit of Gregory Albert Miiller made on 30 April 2014. Mr Miiller was not required for cross-examination. He gives evidence of his analysis of the electronic records of the Department concerning the despatch of an email to Mr Rana on 4 September 2013.
I accept from Mr Rana’s evidence that he did not receive an email from the Department on 4 September 2013. The court book confirms that he promptly drew to the Department’s attention the non-receipt of the decision of the Minister’s delegate after he was notified of it by Medicare.
Exhibit A1 details problems encountered with Hotmail email accounts that may provide an explanation. However, the evidence of Mr Miiller persuades me that an email was sent to Mr Rana at his nominated email address on 4 September 2013. Mr Miiller’s unchallenged evidence is that the email transmission was successful in that it left the Department’s system and entered the system associated with the Hotmail email service. The records analysed by Mr Miiller establish that the email reached a Hotmail IP address of 65.55.37.104. Mr Rana told me from the bar table that the IP address of his computer is 192.168.0.1. That does not mean that Mr Miiller’s evidence is wrong; it means that the email probably reached a computer server associated with the Hotmail email service rather than Mr Rana’s personal computer.
Mr Rana is aggrieved that he could be taken to have received a communication that he did not, in fact, receive. I understand that grievance and have heard it from many other applicants on many occasions. However, the Minister’s submissions correctly analyse the relevant law and I adopt them.
Section 66 of the Migration Act prescribes the way in which the Minister must notify an applicant of a decision to refuse to grant a visa. Section 66(2) provides that the notification must:
a)specify the criterion or provision of the Migration Act or Regulations that the applicant failed to meet;
b)give written reasons why the criterion was not satisfied or the provision prevented the grant of the visa; and
c)if the applicant has a right to have the decision reviewed, state that the 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.
Mr Rana does not dispute that the primary decision was sent in accordance with s.66(2) of the Migration Act. On the evidence before the Tribunal and this Court the notification of the primary decision complied with the requirements of s.66(2) of the Migration Act.[13]
[13] CB at 134 to 150.
Section 347(1)(b)(i) of the Migration Act provides that an application to the Tribunal for review of an MRT (Tribunal)-reviewable decision[14] must be given to the Tribunal within the prescribed period, being a period ending not later than 28 days after the notification of the decision.
[14] The primary decision is a Tribunal -reviewable decision: s.338(2) of the Migration Act.
Regulation 4.10(1)(a) of the Regulations prescribes the time limit for the purposes of s.347(1)(b) of the Migration Act as 21 calendar days after notification where the Tribunal -reviewable decision is mentioned in section 338(2) of the Migration Act. The primary decision is a Tribunal-reviewable decision mentioned in s.338(2) of the Migration Act.
Section 494B(5) of the Migration Act provides that the Minister may notify his decision to the last email address provided to the Minister for the purposes of receiving documents. Where that occurs, by s.494C(5) of the Migration Act, the applicant is taken to have received the document at the end of the day on which it was transmitted.
Provided that the delegate’s decision was notified to Mr Rana at his nominated email address on 4 September 2013, time ran from the end of that day. For present purposes, Mr Rana is taken to have been notified if the email transmission was successful.
Mr Rana drew attention to one curiosity with the relevant email which is reproduced on page 133 of the court book. The record of that email does not contain any transmission details. There are words in italics asserting that the email and attachment was sent to Mr Rana at his nominated email address. The facts that the words are in italics and use the past tense indicate to me that they were added after the event.
The form of that email may be contrasted with that reproduced on page 153 of the court book. I do not understand why the form of the two emails differs. In cases such as this where the time of despatch is critical, I would have thought that the Department could employ a consistent and informative form of email record such as that reproduced on page 153 of the court book.[15] If I did not have the benefit of Mr Miiller’s evidence, I would have concluded at this stage of the proceedings that Mr Rana had an arguable case that the Tribunal’s finding on jurisdiction was wrong.
[15] The form of email record reproduced at CB 133 appears on its face to be of dubious provenance.
In my view, however, Mr Miiller’s evidence establishes that the delegate’s decision was sent by email to Mr Rana on 4 September 2013 and the Tribunal was correct in finding that he was taken to have received it. I otherwise agree with the Minister’s submissions.
Ground 1
Contrary to Mr Rana’s assertion under Ground 1, the evidence before the Tribunal and this Court is that Mr Rana was first notified of the primary decision on 4 September 2013 and that Mr Rana’s application for review was therefore not lodged on time.
On 4 September 2013 an email, attaching the primary decision, was sent to [email protected], the last email address provided to the Minister by Mr Rana for the purpose of receiving documents.[16] At question 29 of his visa application, Mr Rana agreed to the Minister contacting him by e-mail and provided the e-mail address of [email protected].[17] Accordingly, the notification of the primary decision complied with s.494B(5) of the Migration Act.
[16] Miiller affidavit at [9] and [10].
[17] CB 4. These details were not amended prior to the notification of the primary decision.
As the notification of the primary decision was sent to Mr Rana on 4 September 2013, Mr Rana is taken to have received it at the end of that day.[18] Accordingly, and as correctly found by the Tribunal:
a)the prescribed period within which the review application could be made ended on 25 September 2013;
b)Mr Rana's application for review was received on 27 September 2014 and was therefore not made in accordance with s.347(1)(b)(i) of the Migration Act.
[18] Section 494C(5) of the Migration Act.
Ground 2
Ground 2 is not factually correct. As required by s.368(1)(d) of the Migration Act, the Tribunal in its decision record referred to the evidence and material upon which it made its findings of fact and, in particular, its finding that Mr Rana was notified of the primary decision on 4 September 2013.[19]
[19] CB at 185 to 186.
Ground 3
Ground 3 does not allege any legal error. Rather, it correctly states that the Tribunal did not accept that Mr Rana’s application for review lodged on “1 October 2013” (that reference should be to 27 September 2013) was validly made. For the reasons already given, the Tribunal was correct to find that Mr Rana’s application for review was not validly made.
Mr Rana’s application to the Tribunal for review of the primary decision, in order to be effective, had to be given to the Tribunal on or before 25 September 2013.[20] Since the application for review was not given to the Tribunal until 27 September 2013, the application was not made within the prescribed period. It follows that the Tribunal did not make any error of law when it concluded that it had no jurisdiction to determine the application for review.[21]
[20] Section 347(1)(b) of the Migration Act; regulation 4.10 of the Regulations.
[21] Durrani v Minister for Immigration [2005] FCA 629.
I have on previous occasions recommended that the Tribunal should have the power to extend time for the making of review applications in order to avoid circumstances such as the present.[22] Unfortunately, the Tribunal has not been given that power. In the circumstances, it is left to the Minister to remedy the resulting injustice.
[22] SZSKX v Minister for Immigration & Anor [2014] FCCA 157
Mr Rana has failed to establish an arguable case of jurisdictional error by the Tribunal. I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. Mr Rana did not wish to be heard on the issue of costs.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 15 July 2014
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