Seetha v Minister for Immigration
[2011] FMCA 336
•11 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SEETHA v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 336 |
| MIGRATION – Review of decision of Migration Review Tribunal (“Tribunal”) – student visa – application to Tribunal made out of time – jurisdiction of Tribunal to entertain review application. PRACTICE & PROCEDURE – Application for extension of time to bring proceedings under Migration Act 1958 – relevant considerations. |
| Migration Act 1958, ss.116, 127, 347, 348, 477, 494A Migration Regulations 1994, regs.2.45, 2.55, 4.10 Evidence Act 1995, s.161 |
| Applicant: | IYAPPAN MUTHURAMAN SEETHA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 402 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 11 May 2011 |
| Date of Last Submission: | 11 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 11 May 2011 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $2,600.00.
The applicant have four months to pay the costs ordered in Order 2.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 402 of 2011
| IYAPPAN MUTHURAMAN SEETHA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant was granted a subclass 572 Vocational Education and Training Sector visa on 19 May 2009. On 22 July 2010 a delegate of the first respondent (“Minister”) cancelled that visa pursuant to s.116 of the Migration Act1958 (“Act”) on the basis that the applicant had not complied with a condition of his visa. The applicant sought review of that decision with the second respondent (“Tribunal”), however, it found that the application had been lodged out of time and concluded that that it did not have jurisdiction. The applicant has applied to this Court for judicial review of the Tribunal’s decision.
Background
The matter is before the Court today for consideration of the applicant’s application that he be granted an extension of time to bring these proceedings.
Section 477 of the Act provides the time limits which apply to proceedings for judicial review of decisions of the Tribunal in respect of which this Court has jurisdiction. It relevantly provides:
477Time limits on applications to the Federal Magistrates Court
(1)An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2)The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:
(a)an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3)In this section:
date of the migration decision means:
(a)…
(b)in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal—the date of the written statement under subsection 368(1) or 430(1); …
The Tribunal’s decision was dated 31 January 2011 which means that the applicant had until 7 March 2011 to commence these proceedings. However, the application was not filed until 9 March 2011 which means that it was brought out of time.
The consequence of this is that the Court must now consider the two questions posed by s.477(2). The first of these is whether a written application has been made to the Court for an extension of time to bring the proceedings which specifies, whether in the application itself or in its supporting affidavit or in another document, why the applicant considers it is necessary in the interests of the administration of justice that an order extending time to bring the proceedings be made.
In this case the applicant made an application in writing for an extension of time by including such a request in his application commencing these proceedings. Further, his initiating application specified why he said it was in the interests of the administration of justice for time to be extended. It is sufficient to observe that the initial criteria for the granting of an extension of time have been satisfied.
Interests of the administration of justice
The next matter to be considered is whether it is in the interests of the administration of justice to extend the time for the filing of the application commencing these proceedings. Although the matters which may be relevant to this consideration are not confined, in the circumstances of this case I consider the relevant questions to be whether the applicant has a reasonable explanation for the delay in the commencement of these proceedings and whether the allegations made in the application have reasonable prospects of success.
Does the applicant have a reasonable explanation for the delay?
As to the question of a reasonable explanation for the delay in bringing the proceedings, the applicant has said from the bar table that he did not know about the time limit to bring these proceedings and it appears that he confused that time limit with the expiry date of his bridging visa which was current at the time. He also said that he could not afford legal advice and implied that he had obtained none. In circumstances where a person is unfamiliar with court proceedings and with the detail of the Act, and also lacks a degree of life experience as is the case with the applicant on this occasion as he is a young man and a student, it is perhaps not surprising that he did not pay the sort of attention to the time limits which might apply to the commencement of proceedings as someone else might have. In the circumstances, I am satisfied that the applicant does have a reasonable explanation for the delay in commencing the proceedings.
Reasonable prospects of success
The next question to be considered is whether, even if time were to be extended, the application has reasonable prospects of success. As a result, it is necessary to consider the merits of the substantive part of the application which the applicant has brought to the Court.
In the grounds of the application commencing the proceedings the applicant alleges:
1.The Tribunal’s decision miscarried in relation to its finding that the applicant failed to lodge the review application after the expiration of the prescribed period, giving rise to a jurisdictional error. The exercise of discretion by the Tribunal miscarried because the Tribunal asked itself the wrong questions. Having considered the applicant’s written submission dated 11, January 2011, the applicant stated that he had been misled by incorrect advice given by a department officer when he was handed the visa cancellation letter that he had 21 days to lodge the said review application. The tribunal failed to consider whether that erroneous advice constituted compelling circumstances for the delay.
2.The Tribunal failed to enquire, or to make findings on whether the said advice from the officer resulted in the delay in filing the review application within the prescribed time. As a result the Tribunal failed to take into account the substantial injustice arising from the conduct of the said officer.
3.The Tribunal failed to consider whether the applicant suffered because of the conduct of the said officer. Further the Tribunal failed to act according to the substantial justice, in breach of s.357A(3) of the Migration Act, 1958, and/or failed to act in a way that is fair and just, in breach of s 353(2)(b) of the Act.
These grounds fail to acknowledge:
a)that the decision in question was not a discretionary one because the Tribunal was bound by the Act to reach the decision which it reached;
b)that the Tribunal had no power to initiate inquiries because it had no jurisdiction and in any event an inquiry would not have altered the fact that it had no jurisdiction; and
c)that by reason of its lack of jurisdiction the Tribunal could not consider the substance of the review application which the applicant had filed nor matters related to the substance of the application.
The reason why the Tribunal had no jurisdiction to consider the application for review which the applicant brought to it was that the application had been made out of time. In reviewing the Tribunal’s decision that it had no jurisdiction because the review application had been filed late it is important to understand the relevant statutory and regulatory provisions. In relation to the cancellation of a visa and notification of that cancellation, s.127 of the Act provides:
(1)When the Minister decides to cancel a visa, he or she is to notify the visa holder of the decision in the prescribed way.
That way is prescribed in reg.2.45 of the Migration Regulations 1994 (“Regulations”), which provides as follows:
For the purposes of section 127 of the Act (which deals with notification of decisions to cancel a visa), the way of notifying the visa holder of a decision is in writing.
Because these provisions do not specify a method by which the document notifying the visa cancellation is to be given to a former visa holder, s.494A provides that the Minister may give the document to that person by any method which he considers appropriate. Nevertheless, reg.2.55 provides the methods by which notification of the cancellation of a visa is to be given to a former visa holder. Relevantly it provides:
2.55 Giving of documents relating to proposed cancellation, cancellation or revocation of cancellation
(1) This regulation applies to:
(a)the giving of a document to a holder or former holder of a visa relating to the proposed cancellation or the cancellation of a visa under the Act; and
…
(3) Subject to subregulation (3A), for a document mentioned in paragraph (1) (a) or (c), the Minister must give the document in one of the following ways:
…
(d) by transmitting the document by:
(i) fax; or
(ii) e-mail; or
(iii) other electronic means;
to the last fax number, e-mail address or other electronic address known to the Minister.
Regulation 2.55(8) provides that:
If the Minister gives a document to a person by transmitting it by fax, e-mail or other electronic means, the person is taken to have received the document at the end of the day on which the document is transmitted.
Section 347(1)(b)(i) provides that an application for review of an MRT-reviewable decision of the sort made in relation to the applicant must be given to the Tribunal within “the prescribed period”. For the purposes of s.347(1)(b)(i), reg.4.10(1)(b) relevantly prescribes a period which starts when the applicant receives notice of the decision and ends at the end of seven working days after the day on which the notice was received.
The evidence before the Court today which is relevant to the question of the Tribunal’s decision is the Court Book, which is exhibit A, and the evidence given by the applicant at the hearing in these proceedings. CB 32 indicates that the departmental email advising that the applicant’s visa had been cancelled was sent to the email address from which the applicant had sent his response to the Minister’s notice of intention to consider cancellation of his visa on 27 May 2010. There is no document before the Court which suggests that subsequent to 27 May 2010 the applicant advised the department of any other email address at which he could be contacted and the applicant’s evidence today appeared to confirm that.
Section 161 of the Evidence Act 1995 provides:
161 Electronic communications
(1)If a document purports to contain a record of an electronic communication other than one referred to in section 162, it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that the communication:
(a)was sent or made in the form of electronic communication that appears from the document to have been the form by which it was sent or made; and
(b)was sent or made by or on behalf of the person by or on whose behalf it appears from the document to have been sent or made; and
(c)was sent or made on the day on which, at the time at which and from the place from which it appears from the document to have been sent or made; and
(d)was received at the destination to which it appears from the document to have been sent; and
(e)if it appears from the document that the sending of the communication concluded at a particular time—was received at that destination at that time.
(2) A provision of subsection (1) does not apply if:
(a) the proceeding relates to a contract; and
(b)all the parties to the proceeding are parties to the contract; and
(c)the provision is inconsistent with a term of the contract.
No technical evidence was adduced to suggest that the department’s email was not sent from a computer at the department at the time and on the day when it purports to have been sent. The applicant’s evidence did not go higher than that it was possible that the email did not reach his email inbox. He could not discount the possibility that it had been received but that he had not seen or located it because of the large number of emails in his inbox.
In the circumstances, the presumption found in s.161 of the Evidence Act has not been displaced. Consequently, by reason of that presumption and what is found in the email reproduced at CB 32, I conclude that the cancellation notification was sent to the applicant by email on 22 July 2010. By virtue of reg.2.55(8), the notification is taken to have been received by the applicant on the same day.
As already observed, by virtue of s.347 and reg.4.10(1)(b) an applicant has seven working days after the date of deemed notification of the delegate’s decision within which to lodge his or her application to the Tribunal. In this case, that seven working day period expired at the end of 2 August 2010. As recorded at CB 44, by way of the reproduced copy of the received stamp appearing on that page, the applicant’s application was not lodged until 11 August 2010 with the result that it was late.
Consequently, the Tribunal was not in error in deciding that the applicant’s application for review had been received outside the mandatory time limit. The Tribunal has power under s.348 to consider only those applications which are validly made to it. Because the application in this case was lodged outside the permitted time, it was not a valid application and the Tribunal had no power to consider it.
As a result, the Tribunal’s decision is not affected by jurisdictional error and thus the applicant does not have reasonable prospects of success in his application for constitutional writs.
Conclusion
Although I have found that the applicant has a reasonable explanation for the lateness of his application to this Court, as that application does not have reasonable prospects of success in the principal relief it seeks, namely to have the Tribunal’s decision set aside, I conclude that it is not in the interests of the administration of justice to extend the time in which these proceedings may be brought.
Consequently, the application for an extension of time will be refused and the application dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 23 May 2011
0
0
3