SAURABH v Minister for Immigration - [2006] FMCA 338

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SAURABH v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 338

MIGRATION – Migration Review Tribunal – application dismissed by Tribunal as out of time – no evidence that application was made within 21 days of actually receiving decision – application dismissed.

Migration Act 1958, ss.347, 494B, 494C
Migration Regulations 1994, rr.2.16(3); 4.10(1)(a)
Federal Magistrates Court Rules 2001, r. 44.12

Murphy v Minister for Immigration [2004] FCA 657

Applicant:

KC SAURABH

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 73 of 2006

Judgment of:

Riethmuller FM

Hearing date:

1 March 2006

Date of Last Submission:

1 March 2006

Delivered at:

Melbourne

Delivered on:

1 March 2006

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondents:

Mr Carroll

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application filed on 16 January 2006 is dismissed.
The applicant pay the respondent’s costs fixed in the sum of $1,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 73 of 2006

KC SAURABH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application for judicial review of a decision of the Migration Review Tribunal of 20 December 2005. The decision of the tribunal was that the application to the tribunal was ineligible because the application was not made within the time period prescribed under the Act. The relevant part of the tribunal's decision reads as follows (at [4]-[6]):
Section 347 of the Migration Act 1958 (The Act) sets out the requirements for making an eligible application for review, including the requirement to make the application within the prescribed time period.
According to Regulation 4.10, the review applicant was required to make the application for review 21 calendar days after the date that the Department of Immigration and Multicultural Affairs (the Department) notified the review applicant of its decision. The Department made the decision on 24 August 2004 and is taken to have notified the review applicant of the decision on 2 September 2005. As the Department’s letter was posted to an address within Australia, this date is 7 working days after the date of the Department’s notification letter. This means the last day the review applicant could have made the application for review was 23 September 2004. The review applicant made the application for review on 6 October 2005.
The application for review is ineligible because the application was not made to the Tribunal within the prescribed time period.
The applicant in his application provides an affidavit in support which contains one paragraph as follows:
The tribunal dismissed my appeal, stating that I was out of time. But the letter that I personally got from DIMIA was within the 28 days time frame when I applied at MRT.
The time limit provided for in this case is set out in regulation 4.10(1)(a) of the Migration Regulations 1994 (“the Regulations”), which is a time limit of 21 days. This is a lesser time limit than the maximum time limit that could have been prescribed in accordance with section 347 of the Migration Act 1958 (“the Act”). The terms of section 347, however, make it clear that a time limit can be prescribed and the only restriction is that the time period prescribed not be later than 28 days in the case of a decision this type. There does not appear to be any requirement in the act for a minimum time period to be prescribed. There does not, therefore, on the face of it, appear to be any defect in the terms of regulation 4.10 as a result of any inconsistency with the act.
The notification of the original decision was posted to the applicant and the applicant says he did not receive a copy by post. There are two arguments that arise in this case: the first is whether or not under the Act and Regulations the applicant is deemed to have received the decision seven days after it was posted to him; and the second is whether or not, if he had have replied within 28 days of personally receiving the decision, he was within time.
With respect to the first question, regulation 2.16(3) sets out that the minister must notify an applicant of a decision to grant or refuse a visa by one of the methods specified in section 494B of the Act. Section 494B of the Act sets out that a document may be provided to an applicant by post – in subsection (4) – in the following terms:
s.494B - Methods by which Minister gives documents to a person
…
Dispatch by prepaid post or by other prepaid means
(4)Another method consists of the Minister dating the document, and then dispatching it:
(a)within 3 working days (in the place of dispatch) of the date of the document; and
(b)by prepaid post or by other prepaid means; and
(c)to:
(i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or
(ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents.
Section 494C provides:
s.494C - When a person is taken to have received a document from the Minister
(1)This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A).
…
Dispatch by prepaid post or by other prepaid means
(4)If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a)if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or
(b)in any other case—21 days after the date of the document.
The legislation has been the subject of consideration by a judge of the Federal Court of Australia, Spender J, in Murphy v Minister for Immigration [2004] FCA 657. In a detailed judgment canvassing a number of the authorities that would apply with respect to these issues, his Honour did not find any defect in the regulations or sections and proceeded on the basis that the effect of the deeming provision is that the applicant is taken to have received the document in the time set out in the section. Spender J ultimately dismissed the application in that case.
It appears to me that in the circumstances, the applicant is deemed to have received the document seven days after it was posted to him, which, in the terms of the Migration Review Tribunal decision, would mean that his application for review is out of time.
To the extent that it was suggested that the date for time to commence to run should be when he received the document personally, as on his case he said he had to attend at the Department's offices to obtain a copy of the decision, the case nonetheless does not have any proper evidentiary foundation, in that his evidence by affidavit is that he applied to the Migration Review Tribunal within 28 days and the time limit was 21 days.
In these circumstances, and in the absence of any evidence that his application was made within 21 days of actually receiving the decision, I find that this ground does not present an arguable case. In any event, in light of Murphy v Minister for Immigration, it appears clear that a claim of non-receipt by the applicant of the document that was posted to him is not of itself sufficient to found an application for judicial review.
I also should record in this decision that the applicant sought an adjournment to obtain legal advice. When questioned as to what steps he had taken about obtaining legal advice or why he had not taken such advice before coming today, he had no answer. The application was lodged over a month ago on 16 January 2006 in the registry of this court. In circumstances where there does not appear to be an arguable case and an applicant has taken no steps to obtain any legal assistance in the six weeks before the application came on, it does not appear to me to be appropriate to grant an adjournment.
In the circumstances, I therefore refuse an adjournment and I dismiss the application pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001. In the circumstances, the applicant has been unsuccessful. It is appropriate that costs follow the event. I therefore order the applicant to pay the minister's costs fixed at $1,000.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate:

Date: