SINGH v Minister for Immigration

[2013] FCCA 1632

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1632

Catchwords:
MIGRATION – Judicial review of Migration Review Tribunal decision – application for a Skilled (Provisional) (Class VC) Subclass 487 visa –application for review to the Migration Review Tribunal lodged out of time – not a valid application – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.66, 347, 347(1)(b), 494B, 494B(5), 494C(5)
Migration Regulations 1994 (Cth), regs.2.16, 4.10
Federal Circuit Court Rules 2001 (Cth), r.44.12

Applicant: HARPREET SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 691 of 2013

Judgment of: Judge Hartnett

Hearing date: 15 October 2013

Delivered at: Melbourne

Delivered on: 15 October 2013

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Ms Whittemore

Solicitors for the First Respondent: Sparke Helmore Lawyers

THE COURT ORDERS THAT:

1. The name of the First Respondent be changed to ‘Minister for Immigration and Border Protection’.

2. The Application filed 21 May 2013 be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

3. The Applicant pay the costs of the First Respondent fixed in the sum of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 691 of 2013

HARPREET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The Application before the Court this day was filed by the Applicant on 21 May 2013.  The grounds of this application were stated to be as follows:-

   “Dis-satisfied of decision from Migration Review Tribunal

   I was late to apply my MRT file 5 days before expire date. Reason is my financial position was not really good.”

2. The First Respondent filed a Response to that application on 28 May 2013, noting that the application for judicial review of the decision of the Migration Review Tribunal (‘the Tribunal’) did not provide any legal ground of review; that the application itself did not establish any jurisdictional error in the decision of the Tribunal dated 19 April 2013; and that the application for judicial review did not raise an arguable case for the relief claimed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

History

1. The Applicant lodged an application for a Skilled (Provisional) (Class VC) Subclass 487 visa electronically and on 3 August 2012. He indicated on that application that he wished to be considered for the grant of a Skilled Graduate (Temporary) Subclass 485 visa. That application was refused by a delegate of the First Respondent (‘the delegate’) on 23 January 2013, with notification of the decision being provided to the Applicant in accordance with s.66 of the Migration Act 1958 (Cth) (‘the Act’), and in the prescribed way as set out in reg.2.16 of the Migration Regulations 1994 (Cth) (‘the Regulations’). In particular reg.2.16(3) of the Regulations is as follows:-

   “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.

   Note: If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.”

2. Notification of the refusal of the Applicant’s application for a Skilled (Provisional) (Class VC) Subclass 487 visa was provided to the Applicant by the delegate via email to the address provided by the Applicant in his application.  That email attached a copy of the decision of the delegate dated 23 January 2013. 

3. The covering letter dated 23 January 2013, being the notification of the refusal of the application, advised the Applicant of his review rights, namely that the decision could be reviewed, and thereafter said as follows:-

   “No further assessment of this visa application can be taken at this office.  However, you are entitled to apply to the Migration Review Tribunal (MRT) for a review of this decision.  An application for review of this decision must be given to the MRT within 21 calendar days after you are taken to have received this letter.

   Please note that this review period is prescribed in law and an application for merits review may not be accepted after that date.

   As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.”

4. Section 347 of the Act provides for applications for review by the Tribunal. Section 347(1)(b) of the Act provides that an application for review of a Tribunal reviewable decision must be given to the Tribunal within the prescribed period, being a period, in this instance, ending not later than 28 days after the notification of the decision.

5. Section 494B of the Act provides the methods by which the First Respondent gives documents to a person, and s.494B(5) of the Act provides that the First Respondent may transmit documents by email, and to the email address provided to the First Respondent for the purpose of receiving documents. Section 494C(5) of the Act provides that a person is taken to have received a document transmitted by email at the end of the day on which the document is transmitted.

6. The Applicant in these proceedings lodged his application for review of the decision of the delegate with the Tribunal on 18 February 2013.  By letter of 20 February 2013, the Tribunal advised the Applicant that the validity of his application had not yet been assessed.  The Applicant was advised that the Tribunal could only review a decision if a valid application for review had been made, and that he would be advised if it appeared that his application may not be valid.

7. By further correspondence on 20 March 2013, the Tribunal notified the Applicant that his application for review in relation to the delegate’s decision to refuse to grant him a Skilled (Provisional) (Class VC) Subclass 487 visa was not a valid application as it was not lodged within the relevant time limit.  The Applicant was advised that the primary decision was emailed to him on 23 January 2013, and on that basis 23 January 2013 was the date on which he was taken to have been notified, and thus the last day for the lodging of his application for review was 13 February 2013. As his application was not received until 18 February 2013 it appeared to be out of time.  The Applicant was asked whether he wished to make comment on whether a valid application had been made, and he was invited to do so in writing within 14 calendar days of receiving the invitation.  The Applicant responded to that invitation, and indicated essentially that he was misinformed by a migration agent.  That explanation to the Tribunal, in written form and dated 3 April 2013, contradicted the grounds of the Applicant’s application before the Court and also contradicted the sole submission made by the Applicant this day, which was that his financial position precluded him from making an application within time.

8. In any event, the Tribunal determined on 19 April 2013 that it did not have jurisdiction in the matter as the application was not made in accordance with the relevant legislation.  The Tribunal advised the Applicant of its decision by correspondence of 23 April 2013, to which a copy of the Tribunal’s Statement of Decision and Reasons dated 19 April 2013 was attached.

9. The Tribunal noted that pursuant to s.347(1)(b) of the Act, and reg.4.10 of the Regulations, an application for review of the decision had to be made within 21 days after the Applicant was notified of the decision in accordance with the statutory requirements. The material before the Tribunal indicated that the Applicant was notified of the decision by letter dated 23 January 2013, dispatched by email. The Tribunal was satisfied that the Applicant was notified of the decision in accordance with the statutory requirements.

10. The Applicant’s application before this Court has no basis, and provides no arguable case.  It is unmeritorious and shall be dismissed, with costs following the event.

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

Associate: 

Date:  22 October 2013