SINGH v Minister for Immigration
[2013] FCCA 2343
•13 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 2343 |
| Catchwords: MIGRATION – Migration Review Tribunal finds application to review a decision of the Minister’s delegate was lodged outside of the time limits prescribed by the Migration Act and Regulations – whether jurisdictional error on the part of the Tribunal. |
| Legislation: Migration Act1958 |
| Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 Craig v State of South Australia [1995] HCA 58 Sainju v Minister for Immigration and Citizenship (2009) 236 FLR 447 Tay v Minister for Immigration and Citizenship (2010) 183 FCR 163 |
| Applicant: | HARWINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | ADG 141 of 2013 |
| Judgment of: | Judge Lindsay |
| Hearing date: | 13 December 2013 |
| Date of Last Submission: | 13 December 2013 |
| Delivered at: | Adelaide |
| Delivered on: | 13 December 2013 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Solicitors for the Applicant: | Not Applicable |
| Counsel for the First Respondent: | Mr Tredrea |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
| Counsel for the Second Respondent: | No Appearance |
| Solicitors for the Second Respondent: | Not applicable |
ORDERS
Orders will be:
The name of the first respondent be amended to “Minister for Immigration and Border Protection”.
The Application for Review filed on 13 May 2013 do stand dismissed.
The applicant pay the first respondent’s costs of and incidental to this application fixed in the sum of FIVE THOUSAND FOUR HUNDRED DOLLARS ($5400.00).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 141 of 2013
| HARWINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
MIGRATION REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
Before me today is an application for review of a decision of the Migration Review Tribunal (hereinafter “the Tribunal”) which decision was made on 16 April 2013. The decision of the Tribunal was that it did not have jurisdiction to entertain the application which would have otherwise been, had it in the view of the Tribunal been validly made, a review of a decision of a delegate of the Minister not to grant the applicant the visa he was seeking which was a Skilled Graduate (Subclass 485) visa.
The application to this court is made pursuant to s.476 of the Migration Act. This Court has the same jurisdiction in relation to judicial review as the High Court possesses but limited to applications for review of migration decisions as migration decisions are defined in the Act and, subject to exceptions that do not concern us are, a migration decision is essentially a privative clause decision or a purported privative clause decision.
That being the scheme of the Act, as the High Court has pointed out in numerous decisions and, in particular, in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 the review will only lie in respect of decisions of the Tribunal which can be shown to have been vitiated by jurisdictional error. Jurisdictional error is a concept explicated in a number of High Court decisions, perhaps most usefully in the decision of Craig v State of South Australia [1995] HCA 58. So the review will only lie here if I am satisfied that the Tribunal’s decision was made in excess of or for want of jurisdiction or, as a subset of those instances, if the applicant was not accorded procedural fairness.
The Tribunal’s decision was, as I have indicated, that it did not have jurisdiction in the matter and that was because, in its view, the application had been filed out of time. I am satisfied that the decision of the delegate was an MRT reviewable decision as that is defined by virtue of the combined operation of s.338(9) and s.347(1)(b)(iii) of the Act. I am satisfied that it is an MRT reviewable decision. There is nothing in the Tribunal’s reasons to indicate that, had the application been validly made, the decision of the delegate would not have been an MRT reviewable decision.
I am therefore satisfied that it is covered by s.338(9) and, as a consequence of that, I am satisfied that s.347(1)(b)(iii) applies and that the application for review of the decision had to be made within the number of days prescribed in respect of the kind of decision in question, prescribed for the purposes of that subsection after the notification of the decision, and that by virtue of the operation of regulation 4.10(1) of the Regulations made under the Migration Act, that period was the period of 21 days from the date of receipt of the decision by the applicant.
Section 494B of the Act prescribes the modes of service by which the Minister is obliged to give a document to a person. One of the methods prescribed is that set forth in s.494B(5) which consists of the Minister transmitting the document by a number of electronic means that are indicated and one is email, and email to the last email address provided to the Minister for the purposes of receiving documents.
If a mode of service identified in s.494B is utilised by the Minister, then he has the benefit of the deeming provisions set forth in s.494C of the Act and subsection (5) provides that if the Minister gives a document to a person by the method I have just outlined – the email transmission – the person is taken to have received the document at the end of the day on which the document is transmitted. All the Minister can do is to send or transmit the document. The Minister cannot facilitate the actual act of receiving the document.
The Minister’s obligations are to utilise one of those modes of sending or transmission but, if he does that, the receipt of the document is a matter that is dealt with virtue of the deeming provisions in subsection (5). The Tribunal was satisfied and, in my view, properly satisfied, that the last day for lodging the application for review given to the time limits which I have identified, was 28 December and that the review application itself was not received until 31 December. It was therefore out of time.
The applicant was given an invitation to respond to the Minister’s contentions in that regard. He did respond and the contents of his response are set out at paragraphs 6 and 7 – paragraph 6, essentially, and amplified in paragraph 7 – of the Tribunal’s reasons. He simply said he did not receive it. The Tribunal was satisfied on the basis of evidence put before it originating in the departmental file that there had been a transmission of the email with the attachments, one of the attachments being the decision record, to the applicant, on 7 December 2012.
By virtue of the operation of s.494C(5), the applicant is taken to have been notified of that decision on 7 December. The deeming provisions are onerous. Mr Tredrea has identified in paragraphs 22 and 23 of his written submission, the discussion by the Full Court of the Federal Court in two different cases – Sainju v Minister for Immigration and Citizenship (2009) 236 FLR 447 and Tay v Minister for Immigration and Citizenship (2010) 183 FCR 163 – of the onerous operation of these provisions.
Mr Tredrea has set out there Full Court recognition of the onerous operation of those deeming provisions and an explanation as to the exigencies of the administrative process and the need for certainty attending to it which may require deeming provisions which operate in such a way.
I am satisfied that in coming to a conclusion that it did not have jurisdiction in this matter, the Tribunal did not fall into jurisdictional error or error of any kind. On the contrary, my examination of the way in which it undertook its task to discern whether it had a jurisdiction in the matter demonstrates that it was correct.
In those circumstances, it is unnecessary for me to deal with the alternative contention of Mr Tredrea as to the discretion of the court to refuse to grant relief on the basis of there being no utility in granting the application that arises by virtue of the circumstance conceded candidly by the applicant before me today that he had not responded to the delegate’s request to be furnished with proof of the attainment of the relevant proficiency in English (that is a matter which is dealt with some specificity in the Regulations).
There was simply no evidence of that before the delegate and, that being the case, the delegate was obliged to refuse the application for the grant of the visa. I have used the expression “the utility aspect of the matters” involving the exercise of a discretion. There are Federal Court decisions that would indicate that if the lack of utility can be demonstrated, it goes beyond being a function simply of exercise of the traditional discretion in respect of the exercise of the power of issue of a prerogative writ. Had it been necessary for me to consider the utility argument, it appears that it would have provided an alternative route to the same outcome of this hearing.
Mr Tredrea has indicated that the Minister seeks an order for costs. He seeks the amount of $5400 which is a bit over $1000 less than is prescribed by the Rules of Court. The orders for cost should be made.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Lindsay
Associate:
Date: 24 January 2014
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