Sikora v Minister for Immigration
[2005] FMCA 515
•11 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SIKORA v MINISTER FOR IMMIGRATION | [2005] FMCA 515 |
| MIGRATION – Visa – (Temporary) (Class UK) visa – application for review of a decision of the Migration Review Tribunal. |
| Migration Act 1958 (Cth), ss.347; 348 |
| Makhu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 221 VEAN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 570 Zhan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 327 |
| Applicant: | KRZYSZTOF SIKORA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3497 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 11 April 2005 |
| Date of Last Submission: | 11 April 2005 |
| Delivered at: | Sydney |
| Delivered on: | 11 April 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Reilly |
| Solicitors for the Applicant: | Christopher Levingston & Associates |
| Counsel for the Respondent: | Mr Johnson |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That an order of certiorari issue quashing the decision of the Second Respondent dated 24 September 2004 that the Applicant’s application for review of a refusal of a Partner (Temporary) (Class UK) visa is ineligible.
That the Second Respondent has jurisdiction to review the decision.
That an order of mandamus issue directing the Second Respondent to determine the application for review according to law.
That the Respondent pay the Applicant’s costs fixed in the sum of $7,250.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3497 of 2004
| KRZYSZTOF SIKORA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The application before the Court is an application for review of a decision of the Migration Review Tribunal which held that an application for review made by the applicant was ineligible for hearing by the Tribunal.
The brief facts are that the applicant had sought a partner (Temporary) (Class UK) visa. The application for review was lodged with the Migration Review Tribunal on 13 September 2004. There had been a refusal of that visa made by a delegate of the Minister and the Tribunal took the view that the applicant was taken to have been notified of the decision by the delegate of the Minister on 20 August 2004.
Paragraph 347(1)(b) of the Migration Act requires that an application for review be given to the Tribunal within the prescribed period of time. The prescribed period in this case is 21 calendar days from the date of notification of the department's decision. The Tribunal took the applicant to have been notified of the decision on 20 August 2004 and therefore the last day for lodgement of the application for review was 10 September. The Tribunal said that the review application was lodged with the Tribunal on 13 September 2004 and therefore it was not lodged within the prescribed period for lodging an application.
The circumstances are that the period of notification which sets time running has a significant effect on the application for review. The law does not allow either the Court or the Migration Review Tribunal to extend that time. If the application is a day late it may just as well be a year late. There would be no jurisdiction.
The relevant facts are that a notification or, to use a more neutral term, a communication setting out the decision of the delegate was sought to be sent to the applicant's authorised agent, being one Lana Hotimsky, a migration agent, by fax on 20 August 2004. The documentation was sent by fax and there appears to be no issue as to the fact that the migration agent did not receive the documentation in full on that day. It turned out that her fax machine was short of paper.
On 20 August the delegate of the Minister had made two attempts to send documents by fax. He had telephoned Ms Hotimsky to confirm the fax number and, on having that confirmed, arranged to forward some documents to her through the fax. The documents that the delegate attempted to send were these, and I'm quoting from an affidavit of the delegate Mr Zeb Chohan. That affidavit was sworn on 5 April 2005:
A letter advising the applicant of a refusal to grant him a partner (Temporary) (Class UK) visa;
the decision explaining the reasons for the review refusal;
a Migration Review Tribunal brochure; and
a letter refusing permission to work.
The delegate had difficulty in faxing the documents to Ms Hotimsky. According to his affidavit, at 11.16 am his attempt to fax the documents was unsuccessful. At 12.08 pm that same day he attempted to resend the same fax. This time, for some unknown reason, only the first 10 pages out of 16 was successfully transmitted. The deponent says that to the best of his recollection and based on the fax, the 10 pages that were successfully transmitted comprised the letter notifying the applicant of the refusal to grant his partner visa and the decision explaining the reasons for the refusal. He deposed:
I was unable to confirm whether the entirety of the accompanying Migration Review Tribunal brochure (pages 8 to 11 of annexure A) and the letter refusing the applicant permission to work (page 12 of annexure A) were also transmitted.
He goes on to say:
I then sent a full copy of the fax to the applicant by mail.
The applicant seeks a review of the decision of the Migration Review Tribunal and that the application for review was received out of time. The applicant seeks an order of certiorari quashing the decision, a declaration that the application for review was filed with the 2nd respondent, i.e. the Tribunal, within time, and an order of mandamus directing the Tribunal to determine the application for review according to law.
In the course of these proceedings, the applicant relied on two affidavits, one sworn 8 April 2005 by Lana Hotimsky, the migration agent, and one sworn 2 November 2004 by the applicant's solicitor, Mr Prince. The respondent relied on one affidavit, the affidavit to which I previously referred, by Zed Chohan from the Department of Immigration & Multicultural & Indigenous Affairs, sworn on 5 April 2005. The other evidence relied on by the respondent and tendered without objection was a photocopy of the front page of the Sydney White Pages telephone directory for 2003-2004, being the L-Z volume, and a copy of page 1686 of that directory.
I have had the opportunity to read written submissions prepared on behalf of the applicant by Mr Reilly of counsel, and submissions prepared on behalf of the respondent by Mr Johnson of counsel.
The applicant relies on three points. It should be said, however, that the first point upon which the applicant relied today is somewhat different from the first point set out in the applicant's written submissions. The first point was modified, so to speak, as a result of the provision of the affidavit of Mr Chohan to which I have previously referred in which he sets out the procedure that he went through to fax the documents to Ms Hotimsky. Neither Mr Chohan nor Ms Hotimsky were required for cross-examination, nor for that matter was Mr Prince, whose affidavit was mainly of a procedural nature.
The three points eventually relied on by counsel for the applicant were these: the first relates to the faxing of the material to Ms Hotimsky by the delegate. The documents may be transmitted to a recipient in accordance with the provisions of section 494B(5) of the Act. That document may be transmitted to the last fax number provided to the Minister by the recipient for the purposes of receiving documents. The document was in fact addressed to the applicant's migration agent's fax number, although it was given in the name of the applicant, care of the migration agent. I note that page 21 of the Court Book in the copy of the applicant's application, the migration agent consented to the Department of Immigration & Multicultural & Indigenous Affairs communicating with her by way of a fax and indeed her fax number was proscribed. I also note that the applicant at page 8 of the Court Book did not consent to the department communicating with him by electronic means including fax.
The point made by counsel for the applicant is that on the evidence what can be proved to have been forwarded to the applicant's migration agent's fax number on 20 August was that which is set out in Mr Chohan's affidavit, namely;
a)the letter notifying the applicant of the refusal to grant to him a partner visa;
b)the decision explaining the reasons for the refusal; and
c)part of the accompanying Migration Review Tribunal brochure.
It is clear however that the deponent to the affidavit, Mr Chohan, says that he was unable to confirm whether the entirety of the accompanying Migration Review Tribunal brochure and a letter refusing the applicant permission to work were also transmitted by fax. The submission is on behalf of the applicant but in the absence of a full transmission of the documentation that time does not commence to run. And of course the commencement of time is the important point in this case. Mr Johnson for the respondent disagrees.
The second point made by counsel for the applicant relates to whether or not the transmission by fax of the material is in fact an appropriate method notwithstanding the consent of the migration agent for forwarding notification of a visa refusal. Mr Reilly relies on words contained on the form at page 21 of the Court Book:
If this visa application is refused you will be notified by mail.
He submits that the word "notified" is the relevant word because the date of notification is the relevant date for the purposes of section 347(1)(b) which is the date that starts the time running for the filing of the application. Again, this is opposed by counsel for the respondent.
The third point is that the applicant had nominated his migration agent to be his authorised recipient. So the department was obliged to communicate with a migration agent rather than the applicant. Section 494D(1) is the authority for that.
What is pointed out on behalf of the applicant is that the method of notification does not comply with the Act. A copy of the appropriate letter appears at page 64 of the Court Book and it is seen that it is addressed to the applicant, Krzysztof Sikora, care of Lana Hotimsky, migration agent, and there then includes the fax number.
Mr Reilly of counsel relied on the authority of VEAN of 2002 v The Minister for Immigration & Multicultural & Indigenous Affairs [2003] 133 FCR 570 as authority for the fact that this is an incorrect notification. The brief point is that if the migration agent is the authorised recipient, the department, in order to comply with section 494D, is obliged to address the document to the authorised recipient, not to the applicant care of the authorised recipient, the point of this being that the consequences of time running from the date of notification are serious and it must be made clear that the Act has been complied with.
Mr Johnson of counsel also opposes this submission and relies on the decision of the Hon. Mansfield J in Makhu v The Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 221, a decision handed down on 27 February 2004. In that decision, his Honour considered the decision of the Full Court in VEAN v The Minister and distinguished circumstances in Makhu from those set out in VEAN.
In reply, Mr Reilly of counsel for the applicant submitted that the decision in Makhu can be distinguished from the case before me today on its facts and that the appropriate authority is the decision of the Full Court in Vean, such authority being a decision of the Full Court of the Federal Court is of course binding on the Federal Magistrates Court. Those then are the three propositions.
I will turn to the first proposition which is that the notification, if such it be, to the applicant on 20 August by fax, did it comply with section 66(2)(d)(iv). In support of his submission Mr Reilly relied on the decision of the Hon. Allsop J in Zhan v The Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 327, a decision handed down on 11 April 2003. At paragraph 41 of the decision, his Honour refers to subsection 66(1):
Which requires the Minister when he or she grants or refuses to grant a visa to notify the applicant in the proscribed way.
His Honour goes on to say that:
It is relevant because regulation 2.16 proscribes subsection 66(1), the way of notifying a person of the grant or refusal of a visa.
That regulation says:
The Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act.
The importance of section 66 is touched on again by his Honour at paragraph 51 and the subsequent paragraphs. Subsection (2) says:
Notification of a decision to refuse an application for a visa must:
(a)if the grant of a visa was refused because the applicant did not satisfy a criterion for the visa, specify that criteria;
(b)if the grant of a visa was refused because of a provision of this Act or the regulations prevented the grant of a visa, specify that provision;
(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 a visa;
(d)if the applicant has a right to have the decision reviewed under Parts 5 or 7 or section 500, state:
(i) that the decision can be reviewed;
(ii) the time in which the application for review may be made;
(iii) who can apply for the review;
(iv) where the application for review can be made.
His Honour pointed out (iii) was not relevant; (iv) failure to give notification of decision does not affect the validity of the decision; (v) was not relevant.
Whilst the decision in Zhan turned on two points, one of which was not relevant to these proceedings. Mr Reilly submitted that the second point upon which Zhan was decided is clearly on all fours with the case before me. That is set out succinctly in paragraphs 53 and 55 of his Honour's decision.
Paragraph 53 says:
Secondly, it was submitted that the absence of the enclosed leaflet containing the addresses of the Tribunal offices and that paragraph 66(2)(d)(iv) was not satisfied.
Paragraph 54:
It was submitted that these characteristics of the communication embodied in the letter and enclosed the decision record prevented its characterisation as a "notification" or the fulfilment of the requirement "to notify" for the purposes of section 66 in paragraph 347(1)(b)(i) of the Act. So it was submitted no time has as yet begun to run against the applicant under paragraph 347(1)(b)(i) and regulation 4.10.
The failure to comply with paragraph 66(2)(d)(iv) his Honour looked at in some detail in paragraphs 64 through to 66 of the decision. Counsel for the respondent had said that the applicant only had to look up the White Pages of the Sydney phone book to find the entry setting out the registry of the Tribunal and indeed, in this case, there was tendered a copy of the Sydney telephone book showing the reference showing the appropriate address, or showing the appropriate notification in the telephone book.
I will read it on to the record in its entirety:
Migration Review Tribunal
Level 3, 44 Market
9290 7222
There is a fax number given. Outside Sydney metropolitan area there is a 1300 number given.
In Zhan his Honour considered that very notification and his Honour at paragraph 65 made this comment and I quote:
However, that entry gave no information as to whether Level3, 44 Market Street in Sydney was the registry of the Tribunal or its head office or the site of some other activity of the Tribunal. Further inquiry needs to be made.
His Honour found that the failure to provide the notification was in fact fatal as far as the respondent is concerned. The consequence of notification as his Honour pointed out, is quite serious as his Honour said at paragraph 66:
Neither the Court nor the Tribunal is empowered to give any extension of time.
True it is that the applicant's migration agent would know where the Migration Review Tribunal was and would know where a document was to be filed. But the point has been made that because of the drastic effect of the passing of time that the Act must be complied with strictly.
Mr Reilly submitted to the Court that whilst this is a decision of a judge of the Federal Court at first instance and is not therefore binding on this Court, the principle of comity would require this Court to see such a decision as persuasive. Indeed, this principle would require this Court to follow such decision as long as: (1) the decision could not be distinguished on some point; and (2) as long as this Court did not come to the conclusion that the other decision had been wrongly decided. Neither counsel submitted to me that the decision in Zhan was wrongly decided.
What has been submitted to me however is that this Court is not bound by Allsop J's finding that there was non-compliance with the provision. He did point out that the entire package which included the leaflet or the brochure arrived by ordinary mail a couple of days later. It was also submitted that there was, and quite correctly, another basis upon which his Honour decided the case in Zhan. That is to my reading quite correct. But the essential part of the decision in Zhan relating to the non-provision of the leaflet or the failure to prove that all of the brochures had been faxed through, in this case puts the decision in Zhan on all fours with the case before me.
To my mind, I am of the view that as there is persuasive authority and there is no contrary authority submitted before me, and that as I am satisfied that Zhan cannot be distinguished, quite clearly the proper course for me to do is follow the findings set out by the Hon. Allsop J in Zhan v The Minister for Immigration & Multicultural & Indigenous Affairs. What this means is that I am not satisfied that on 20 August that there was a notification which included the brochure which is required under the provisions of section 66(2)(d)(iv) of the Act.
Whilst this may appear to be a narrow view, it is an appropriate view bearing in mind the Draconian consequences of time running and an application being submitted out of time. To my mind section 474 does not save such a decision. It is a jurisdictional error.
Having decided that point, it is unnecessary for me to decide either of the other two points but if there is a jurisdictional error I propose to grant the application and I propose to make the orders sought.
I have considered the costs in this particular matter. I note that it is a matter that commenced in the Federal Court and appropriately, if I may say so, with respect, was transferred to this Court. It is a matter where there were some interesting propositions of law. As it turned out one point to my mind was so persuasive that a finding in the applicant's favour decided the case. But it did mean that argument had to be presented in respect of the other issues. I was fortunate that this case was well-presented and well-prepared by the lawyers on both sides.
It is certainly a case where it was appropriate for counsel to be briefed on each side. I will certainly certify for counsel.
As far as costs are concerned, to my mind where it is appropriate to award large amounts that are normally awarded, I think the Federal Magistrates Court should not shrink from that. I note that in Melbourne where a considerable number of migration cases are heard, and where I have sat myself, where it is more common for applicant's to be represented than it is here, that larger costs orders than the $4000 to $5000 range are routinely awarded for cases which, to my mind, are not necessarily any more complicated than this. This was certainly a matter which did require some serious consideration. And I think the points raised were important. The figure that I have in mind for costs is $7,250.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 19 April 2005
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