Sherpa v Minister for Immigration & Anor
[2010] FMCA 664
•19 November 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SHERPA v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 664 |
| MIGRATION – Review of Migration Review Tribunal decision – Tribunal finding it lacked jurisdiction – review application out of time – delegate’s decision not signed – whether a decision of a delegate needs to be authenticated considered – notification letter unsigned – whether applicant properly notified of the delegate’s decision considered – alleged jurisdictional error in the delegate’s decision – whether the Tribunal can review a purported decision considered. LAW REFORM – The Migration Review Tribunal and the Refugee Review Tribunal should be empowered to extend the time for making review applications. |
| Administrative Appeals Tribunal Act 1975 (Cth), s.25 Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.65, 66, 338, 347, 411, 476, 494D Migration Regulations 1994 (Cth) |
| 1002486 [2010] MRTA 1328 SZJDF v Minister for Immigration & Anor [2007] FMCA 296 |
| Applicant: | ANG MINMAR SHERPA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1341 of 2010 |
| Judgment of: | Driver FM |
| Hearing date: | 31 August 2010 |
| Date of Last Submission: | 5 October 2010 |
| Delivered at: | Sydney |
| Delivered on: | 19 November 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Mr D Gu Christopher Levingston & Associates |
| Solicitors for the Respondents: | Mr R Baird Clayton Utz |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1341 of 2010
| ANG MINMAR SHERPA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”)[1]. The decision was made on 19 May 2010. The Tribunal found that it did not have jurisdiction in the matter.
[1] The application before the Court did not seek relief against the Minister in respect of the delegate’s decision other than a declaration
The following statement of background facts is derived from the parties’ submissions.
On 13 November 2009, the applicant, a citizen of Nepal,[2] applied to the Minister’s Department for a Student (Temporary) (Class TU) visa.[3] By letter dated 18 January 2010, a delegate of the Minister refused to grant the visa (notification letter).[4]
[2] Court Book (CB) 1
[3] CB 1
[4] CB 26-34 and 35-44
On 18 February 2010, the notification letter was returned to the Department "unclaimed" by the applicant.[5] In the first week of March 2010, the applicant attended the offices of the Department in person and was informed of the decision to refuse to grant him a visa.[6]
[5] CB 35-44
[6] CB 48 and 63
On 17 March 2010, the Tribunal received an application for review.[7] On 19 April 2010, the Tribunal invited the applicant to comment on the validity of his application for review.[8] In that letter, the Tribunal indicated that in its opinion the application for review was not valid "as it was not lodged within the relevant time limit".[9]
[7] CB 49
[8] CB 61-62
[9] CB 62
On 6 May 2010, the Tribunal received a response from the applicant's authorised representative responding to the invitation to comment.[10] On 19 May 2010, the Tribunal decided that it did not have jurisdiction to review the matter.[11]
[10] CB 63
[11] CB 64-74
On 17 June 2010, the applicant applied to this Court for judicial review of the Tribunal's decision. An amended application was filed on 4 August 2010.
Applicant's claims before the Tribunal
In respect of the validity of his application for review to the Tribunal, the applicant claimed that he was not properly notified of the delegate's decision until he personally attended the offices of the Department in the first week of March 2010 to enquire about his application.[12]
[12] CB 48 and 63
The applicant claimed that the original notification letter was wrongly sent to his old address.[13] He claimed he "mentioned his new address in the application form while lodging his visa extension, and hence this new address should have been updated” by the Department.[14] This appears to be a reference to the applicant's response to question 17 of his application for a student visa which asked "Your residential address in Australia (if known)".[15]
[13] CB 48 and 63
[14] CB 63
[15] CB 2
The Tribunal's decision
The Tribunal found that the application for review was made after the prescribed period for doing so had expired.[16] Consequently, it decided that the application for review was not valid and it had no jurisdiction.[17]
[16] CB 71 [24]
[17] CB 72 [25]-[26]
In reaching its decision, the Tribunal made the following findings:
a)the applicant was not in immigration detention when notified of the decision;[18]
[18] CB 70 [14]
b)the applicant was seeking review of an MRT-reviewable decision covered by s.338(2) of the Migration Act 1958 (Cth) (“the Migration Act”). Therefore, the applicable prescribed period is 21 days, starting when the applicant was validly notified of the decision in accordance with the Migration Act: s.347(1)(b)(i) of the Migration Act and regulation 4.10(1)(a) of the Migration Regulations 1994 (Cth) (“the Regulations”);[19]
c)the applicant did not give the Minister written notice under s.494D of the name and address of an authorised recipient;[20]
d)the decision notice dated 18 January 2010 was sent by prepaid post on 18 January 2010 from a place in Australia to the applicant at an address in Australia, being the last address for correspondence provided to the Minister by the applicant;[21]
e)submissions made by the applicant's representative that the applicant was unaware of the decision and that the Minister should have sent correspondence to the applicant's new residential address mentioned (at question 17) in his application afford no basis for accepting the review application lodged on 17 March 2010.[22] The applicant gave "10/30 Glen Street, Marrickville" as his "address for correspondence" in response to question 19 of his application lodged on 13 November 2009.[23] Although the applicant also provided another address as his residential address on the application form, the decision notice was sent to his address for correspondence. Therefore, the decision notice was sent to the last address provided by the applicant in his visa application, for the purposes of receiving correspondence;[24]
f)the decision notice was returned to the Department of the Minister "unclaimed" on 18 February 2010;[25]
g)the decision notice was dispatched within three working days of the date of the letter to the correct address, in accordance with ss.66(1) and 494B(4) of the Migration Act;[26]
h)the applicant is taken to have received the notice on 28 January 2010, being seven working days after the date of the notice. This is so even though the notice was returned unclaimed;[27]
i)the contents of the delegate's decision notice complied with the requirements of s.66(2) of the Migration Act;[28]
j)given that the applicant was taken to have been properly notified of the delegate's decision on 28 January 2010, the prescribed period of 21 days within which the application for review could be lodged ended on 18 February 2010;[29] and
k)the application for review was not received by the Tribunal until 17 March 2010, after the prescribed period had expired.[30]
[19] CB 70 [15]
[20] CB 70 [16]
[21] CB 70-71 [16]
[22] CB 71 [18]-[20]
[23] CB 71 [20]
[24] CB 71 [20]
[25] CB 71 [16]
[26] CB 71 [21]
[27] CB 71 [21]
[28] CB 71 [22]
[29] CB 71 [23]
[30] CB 71 [24]
The application
These proceedings began with a show cause application filed on 17 June 2010. The application was amended on 4 August 2010. At the trial of this matter on 31 August 2010 the applicant sought leave to rely upon a further amended application. During the course of argument on the question of leave, it became apparent that the further amended application itself required amendment in order to reflect adequately the applicant’s intentions and I gave leave for a further amended application to be filed and served by 3 September 2010.
The further amended application contains the following grounds:
Ground 1
The Second Respondent has fallen into jurisdictional error.
Particulars
(a) The second respondent determined that the Applicant’s application for review made on 17 March 2010 was not a valid application for review by reason of the combined effect of paragraph 347(1)(b) of the Migration Act 1958 and regulation 4.10 of the Migration Regulations 1994.
(i) The purported decision of the First Respondent’s servant was not a valid decision in accordance with the requirements of section 65 of the Migration Act 1958 in that it was not signed; in the alternative,
(ii) The Applicant was not properly notified of the first instance decision of the First Respondent’s servant in accordance with the requirements of subsection 66(2) of the Migration Act 1958 as both the decision notification letter and decision record were not signed.
Ground 2
The Second Respondent has fallen into jurisdictional error.
Particulars
(a) The First Respondent’s servant determined that the Applicant did not satisfy the requirements for grant of a Class TU Student visa in respect of an application made on 13 November 2009.
(i) The First Respondent’s servant erred in applying the correct law. More specifically, the First Respondent’s servant assessed the Applicant’s application against the incorrect criteria in Schedule 5A to the Migration Regulations 1194, namely clause 5A402.
(b) The Second Respondent determined that there was an MRT-reviewable decision but it had no jurisdiction by reason that the review application made on 17 March 2010 was not given to the Second Respondent within the prescribed period.
(i) The Second Respondent erred in its finding that there was an MRT-reviewable decision under section 338 of the Migration Act 1958.
(ii) The Second Respondent failed to give regard to the First Respondent’s servant decision to refuse to grant a visa to the Applicant, in respect of an application made on 13 November 2009, in that it was a decision infested by jurisdictional error and was not ‘a decision’ but ‘a purported’ made under section 65 of the Migration Act 1958.
(iii) Section 338(2) of the Migration Act 1958 does not provide that ‘a purported decision’ is an MRT-reviewable decision.
The evidence and submissions
I received as evidence the affidavit of Christopher Hugh Levingston filed on 17 June 2010. I also have before me the court book filed on 13 July 2010 and the affidavit of Matthew James Palmer filed on 16 July 2010. The latter affidavit is probably not relevant as it proves despatch of the notification of the delegate’s decision which is no longer in issue between the parties.
The parties made oral and written submissions at and following the hearing before me on 31 August 2010. The first submission of the applicant is that no “decision” has been made by the Minister’s delegate under the Migration Act because the record of decision that is relied upon is unsigned and, so it is said, not finalised or authenticated. The applicant submits that, in order to be reliable as a final decision, the delegate’s decision needed to be signed or in some other way authenticated as final and effective.
Secondly, the applicant submits that even if a final and reliable decision was made by the delegate, it was not properly notified to the applicant because the letter enclosing the record of decision was unsigned. The applicant submits that in the absence of a signature, the applicant could not be sure, if he had received the letter (which he had not), that he was being notified of a final and operative decision. The applicant further submits that it is implicit that a notice of a decision of a delegate must be signed. The implication is said to arise from other requirements in the Migration Act requiring a signature (for example, visa applications).
Further or in the alternative, the applicant submits that the delegate erred in making the decision because he applied the incorrect criteria in schedule 5A to the Regulations, namely clause 5A402.
The applicant also submits that the Tribunal erred in failing to consider whether the delegate’s decision was a valid decision made under s.65 of the Migration Act.
The Minister submits that there is no requirement for a decision of a delegate or a notification letter giving notice of a delegate’s decision to be signed. The Minister submits that the decision made by the delegate was, at a minimum, a purported decision and, prima facie, a MRT reviewable decision. It was hence a “primary decision” and this Court has no jurisdiction to review the decision of the delegate. Further, because the applicant made no review application to the Tribunal within the time prescribed the Tribunal had no jurisdiction to review the delegate’s decision and the decision of the Tribunal was correct. The Minister concedes that the delegate applied the wrong visa criterion but submits that the error makes no difference in substance because, whichever criterion was applied, the applicant had provided insufficient information for the grant of the visa sought.
Consideration
Section 65 of the Migration Act provides as follows:
(1) After considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv) any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
Note: See also section 195A, under which the Minister has a non compellable power to grant a visa to a person in detention under section 189 (whether or not the person has applied for the visa). Subdivision AA, this Subdivision, Subdivision AF and the regulations do not apply to the Minister's power under that section.
(2) To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3).
Section 66 of the Migration Act provides as follows:
(1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.
(2) Notification of a decision to refuse an application for a visa must:
(a)if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa--specify that criterion; and
(b) if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa--specify that provision; and
(c) unless subsection (3) applies to the application--give written reasons (other than non disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
(d)if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500--state:
(i) that the decision can be reviewed; and
(ii) the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made.
(3) This subsection applies to an application for a visa if:
(a) the visa is a visa that cannot be granted while the applicant is in the migration zone; and
(b) this Act does not provide, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.
(4) Failure to give notification of a decision does not affect the validity of the decision.
(5) This section does not apply to a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.
Note: Sections 501C and 501G provide for notification of a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.
There is no statutory obligation on the delegate to sign the record of decision made for the purposes of s.65 and neither is there any statutory requirement to sign a notice of such a decision issued for the purposes of s.66.
Section 66 of the Migration Act specifies the way in which the Minister is to notify an applicant of a decision under s.65 of the Migration Act. Relevantly, s.66(2) requires that the Minister, when refusing to grant a visa, specify any criterion for the visa or any provision of the Migration Act or Regulations which the applicant has failed to satisfy, give written reasons why the criterion or provision was not satisfied and give the applicant information as to how the decision can be reviewed. Despite providing a comprehensive method of notification, s.66 of the Migration Act does not require that the notification letter or decision record be signed and the applicant does not cite any authority in support of such a requirement.
Secondly, a visual inspection of the notification letter and decision record sent to the applicant at CB 35-44 and the "copy" of the notification and decision record held on the Department's file at CB 26-34 reveals them to be identical. Any inference that the notification letter and decision record sent to the applicant were not accurate or were in draft form is unsupported by the evidence. Indeed, the mere fact that the letter was sent to the applicant would indicate that it was in final, not draft, form.
Thirdly, the name of the Minister's delegate and his position number appear on both the notification letter and decision record. The applicant has not produced any evidence of contrary authorship and in those circumstances there can be no reasonable doubt as to the author of the document. Further, given that the Minister's delegate has provided both his name and position number, there can be no reasonable inference that he has not duly adopted the decision as his own.
My conclusions on this point are not affected by the fact that the Migration Act elsewhere requires certain documents (eg visa applications) to be signed. Rather, the fact that an obligation of signing occurs elsewhere in the Migration Act reinforces my view that the absence of such a requirement in ss.65 and 66 means that an obligation of signature cannot be implied. Had Parliament meant to impose an obligation of signature on the delegate then it would have said so.
The applicant sought to draw an analogy between formalising a delegate’s decision and entering or authenticating court orders. The short answer to that submission is that there is no analogy because the legislative provisions are different.[31]
[31] See for example rule 16.08 of the Federal Magistrates Court Rules 2001 (Cth)
I note in this connection that there is precedent for the Tribunal reviewing unsigned decisions of a delegate. For example, in Tarwinder Singh [2001] MRTA 3157 the Tribunal reviewed a decision which it described at [11] as “unsigned”. In my view, once the delegate’s decision was notified to the applicant, purportedly in compliance with s.66 of the Migration Act, it became an MRT-reviewable decision and the Tribunal was entitled to treat it as such.
I accept the Minister’s submission that the decision of the Minister’s delegate is a “primary decision” pursuant to s.476(2)(a) of the Migration Act and that this Court has no jurisdiction to review it[32]. This is so even where the Tribunal has found (as here) that it has no jurisdiction to review the delegate’s decision because the application for review was lodged after the prescribed period had ended[33]. The applicant no longer disputes that his review application to the Tribunal was not made within the prescribed period. The applicant contends that the Tribunal should, nevertheless, have considered the validity of the delegate’s decision (both in relation to the criteria relied upon and in relation to the question of whether the decision was MRT reviewable). The Tribunal has jurisdiction to review purported decisions as well as valid decisions of a delegate[34]. However, if the purported decision is not an MRT-reviewable decision the Tribunal has no jurisdiction to review it[35].
[32] MZXOT v Minister for Immigration [2008] 233 CLR 601
[33] See s.476(4)(b) of the Migration Act and Park v Minister for Immigration & Anor [2008] FMCA 896 at [9]
[34] Minister for Immigration v Bhardwaj (2002) 209 CLR 597
[35] See for example 1002486 [2010] MRTA 1328
As is pointed out by the Minister in supplementary submissions filed on 28 September 2010, the Tribunal (and the Refugee Review Tribunal) are relevantly in the same position as the Administrative Appeals Tribunal. The word "decision" as it appears in s.338(2) of the Migration Act does not mean a legally valid decision but is to be given its natural and ordinary meaning, "the action of deciding".[36]
[36] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Limited (1979) 2 ALD 1 per Smithers J at 24
In Brian Lawlor Automotive Bowen CJ held that the Administrative Appeals Tribunal had jurisdiction under s.25 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”)
provided there is a decision in fact and provided further that the decision purports to have been made in exercise of powers conferred by an enactment whether or not as a matter of law it was validly made and whether or not action on the basis there was a power to make the decision was right or wrong.[37]
[37] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Limited op cit at 7
Smithers J agreed that:
those decisions are reviewable which are made by an administrator in purported pursuance of the relevant statutory provision.[38]
[38] Ibid per Smithers J at 27
Such decisions are reviewable even where they are made outside of jurisdiction:
Accordingly it is my view that the fact that a decision is made by an administrator to take action which he has no power to take in a legally effective way does not exclude that decision from review by the Tribunal.[39]
[39] Ibid per Smithers J at 25; see also per Bowen CJ at 7
The statutory context of s.25 of the AAT Act is relevantly similar to s.338(2) of the Migration Act in that both contemplate a broad right of merits review of administrative decisions. The interpretation of s.25 of the AAT Act in Brian Lawlor Automotive has been applied to both s.338(2) of the Migration Act in relation to "MRT-reviewable decisions" and s.411 of the Migration Act in relation to "RRT-reviewable decisions" in numerous Federal Court authorities including Yilmaz v Minister for Immigration (2000) 100 FCR 495 at 514-515 per Gyles J (Spender J agreeing at 496-497) (re "RRT-reviewable decisions"), Zubair v Minister for Immigration (2004) 139 FCR 344 at 352-354 (re "MRT-reviewable decisions"), Minister for Immigration vAhmed (2005) 143 FCR 314 at 332-324 (re "MRT-reviewable decisions") and Uddin v Minister for Immigration (2005) 149 FCR 1 at 13-15 per Wilcox and Branson JJ, Bennett J agreeing (re "MRT-reviewable decisions").
In Kim v Minister for Immigration [2008] FCAFC 73 Tamberlin J held (Besanko J agreeing) that the expression "decision" as used in s.338 of the Migration Act:
is to be given its ordinary meaning, namely, "the action of deciding", which covers a situation where the decision is merely purported to be made but is in fact made without authorisation by law.[40]
[40] Kim v Minister for Immigration [2008] FCAFC 73 at [21]
In Kim, it was held that the decision of the Minister to cancel the appellant's visa was an "MRT-reviewable decision" even though it was made outside jurisdiction for failure to comply with the notice provisions in s.119 of the Migration Act.[41] Similar conclusions were reached in Zubair, Ahmed and Uddin above.
[41] Kim v Minister for Immigration [2008] FCAFC 73 at [22]
If a purported decision is MRT-reviewable then, notwithstanding any legal invalidity in the delegate’s decision, once a valid application for review to the Tribunal is made the delegate becomes functus officio and the Tribunal can review the decision[42]. Where, as here, the review application was not made within the time prescribed, the Tribunal has no jurisdiction. The Tribunal found in this case at [15][43] that the decision sought to be reviewed is an MRT-reviewable decision covered by s.338(2) of the Migration Act and that the applicable prescribed period was 21 days starting when the applicant was validly notified of the delegate’s decision in accordance with the Migration Act. The Tribunal was correct in so finding. The Tribunal correctly found that it did not have jurisdiction because the application for review was not received within the prescribed period for lodgement. It follows that any question of invalidity based upon the error made by the delegate in relation to the visa criteria was academic for the Tribunal. It is likewise academic for this Court.
[42] See for example 0905909 [2010] MRTA 377
[43] CB 70
I conclude that the decision of the Tribunal is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed.
It is unfortunate that considerable time and expense has been taken up in dealing with technical arguments which would have been unnecessary if the Tribunal had the power to extend the time for lodging review applications, and had given attention to that power. I have repeatedly (and fruitlessly) drawn attention to the desirability of the Tribunals having the power to extend time[44]. In the absence of that power the courts (and the taxpayers of this country) will continue to be burdened with technical applications like this one. Further, in the absence of that power, it is only the High Court which can deal with the alleged invalidity in the delegate’s decision[45], and there is a risk that that Court will be burdened wholly inappropriately by applications to review primary decisions.
[44] SZNAE v Minister for Immigration & Anor [2009] FMCA 146 at [5]; Park & Ors v Minister for Immigration & Anor [2008] FMCA 856 at [10]; SZJDF v Minister for Immigration & Anor [2007] FMCA 296 at [20]; SZJQC v Minister for Immigration & Anor [2007] FMCA 505 at [9]; Chung v Minister for Immigration & Anor [2006] FMCA 624 at [7]; Byun & Ors v Minister for Immigration & Anor [2006] FMCA 639 at [8]; SZIOU v Minister for Immigration [2006] FMCA 602 at [5]; SZCTH v Minister for Immigration (No 2) [2004] FMCA 284 at [26]-[27]; SZBMF v Minister for Immigration [2005] FMCA 925 at [8];
[45] MZXOT v Minister for Immigration [2008] HCA 28
I will hear the parties as to costs.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 19 November 2010
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