Singh v Minister for Immigration - [2010] FMCA 988

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SINGH & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 988

MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether the applicants were entitled to lodge a combined application for review – whether there was any procedural unfairness in respect of the second named applicant in circumstances where she did not file a separate application for review – whether the Migration Review Tribunal properly found that it did not have jurisdiction to consider reviewing the delegate’s decision in respect of the second applicant.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 474; pt.8 div.2
Migration Regulations 1994 (Cth), regs.4.10(1)(a); 4.12; 1218(3)(g) Schedule 1; 676.211 Schedule 2; 676.221 Schedule 2

First Applicant:

PRAGAT SINGH

Second Applicant:

SUMANPREET KAUR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 2334 of 2010

Judgment of:

Emmett FM

Hearing date:

13 December 2010

Date of Last Submission:

13 December 2010

Delivered at:

Sydney

Delivered on:

17 December 2010

REPRESENTATION

The applicant appeared in person with the assistance of a Punjabi interpreter.

Counsel for the Respondent:

Mr J. Kay Hoyle

Solicitors for the Respondent:

D. Smith (Clayton Utz)

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2334 of 2010

PRAGAT SINGH

First Applicant

SUMANPREET KAUR

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicants are husband and wife who arrived in Australia on 1 June 2009 on tourist visas (“the Applicants”). On 18 August 2009, each of the Applicants lodged an application for a class TR subclass 676 Tourist Visa. Each signed an application for further stay as a visitor. Each application provided the passport numbers of each applicant.
On 9 September 2010 the Department of Immigration and Citizenship (“the Department”) wrote to each of the Applicants in separate letters in similar terms. The letters required additional information, or documents, being completed health examination results, evidence of funds and an explanation of the activities to be engaged in during the visit. The letters requested the information within 28 days.
On 16 March 2010, the bundle of relevant documents marked “Exhibit 1R”, discloses a file note stating that the “client” was telephoned “multiple times” on the telephone numbers listed on the application and that there was no answer.
On 16 March 2010, the Department wrote again to each applicant requesting further information or documents. The information sought was confirmation of current postal and residential address and contact numbers, the date to which the visit to Australia be extended and the information sought in the earlier letters, dated 9 September 2010. The letters again requested the further information within 28 days of the date of the letter.
On 19 March 2010, a file note discloses that the Applicants were contacted confirming receipt of x-ray films and evidence of finances. The file note states that the “Client was advised he needs to respond in writing to a request to provide details relating to activities of stay and intended length.”
On 20 April 2010, the Department notified the Applicants that their application for a TR 676 Tourist visa had been refused. In particular, the letter stated that their applications did not satisfy the delegate of the Department (“the Delegate”) that the expressed intention to only visit Australia is genuine. The Department’s letter enclosed each decision record in respect of Mr Singh and Ms Kaur stating that each had applied for a permanent protection visa whilst in Australia which had been refused by the Department and upheld by the Refugee Review Tribunal. The Delegate stated that “the Delegate did not believe that was something a genuine tourist would do.” The Delegate found that there was insufficient evidence to establish an incentive to return to India and that, therefore, neither applicant intended a genuine visit.
On 19 May 2010, the Applicants lodged an application for review of the Delegate’s decisions by the Migration Review Tribunal (“the Tribunal”) in both names. The application lodged named Mr Singh as applicant 1 and Ms Kaur as applicant 2. Only one application fee was paid.
At the hearing of this matter before this Court on 13 December 2010, an issue was raised by the Court as to whether or not the application was filed in accordance with the statutory time frames. S.347(1)(b)(i) of the Migration Act 1958 (Cth) (“the Act”) states that an application for review must be given to the Tribunal within the prescribed period, being a period ending not later than 28 days after notification of the decision. Regulation 4.10(1)(a) of the Migration Regulations 1994 (Cth) (“the Regulations”) states that the prescribed period ends at the end of 21 days after the day on which the Applicants were notified of the Delegates decision.
During the hearing, I asked counsel for the First Respondent, Mr Kay Hoyle, where in the statutory regime does it identify when notification is effected. Mr Kay Hoyle did not know the answer straight away and had his instructing solicitor, Mr David Smith, continue that research whist he continued with his submissions.
The Tribunal’s notification letter dated 20 April 2010, stated;
“The period during which an application for review must be given to the MRT starts when the applicant receives the notice of the decision and ends at the end of 21 days after the day on which the notice is received. You will be taken to have received this letter 7 days from the date of this letter”
Applying that statement to the facts of this case, 28 days from 20 April 2010 was 18 May 2010. The application for review was not lodged until 19 May 2010. I put to counsel for the First Respondent that, on that basis, it would appear that the application was out of time and there was no jurisdiction in the Tribunal to review the Delegate’s decisions in respect of either applicant. Counsel for the First Respondent agreed with that proposition. At no time during the hearing, despite more than one request, were the deemed notification provisions identified for the Court.
In those circumstances, I explained to the Applicant that it would appear that the application lodged on 19 May 2010 was not lodged within the mandatory 28 day period and therefore the Tribunal had no jurisdiction to review the Delegate’s decision. I informed the Applicant that in those circumstances, the Court had no option but to dismiss his application to this Court for judicial review of the Tribunal’s decision.
I then made orders to the effect that the proceeding before this Court commenced by way of application filed on 7 October 2010 was dismissed with costs. The First Respondent sought costs in accordance with the schedule of the Court. The Court duly made a costs order of $1175 in accordance with the relevant schedule applicable upon completion at the first court date given that it appeared that the First Respondent had overlooked the fact that the Applicants may have filed their application out of time. I further directed that no orders be entered until I had an opportunity to settle my reasons.
Following the hearing, an inquiry was made of Mr Smith by my deputy associate as to the notification deeming provisions. Pursuant to that request, the following email was received by my deputy associate from the First Respondent’s solicitors as follows:
“We act for the Minister for Immigration and Citizenship in this matter, which was listed for hearing before her Honour Federal Magistrate Emmett at 10:15 a.m. today.
One of the issues ventilated at the hearing was whether the application by the first applicant to the Migration Review Tribunal (Tribunal) was made within time. Our client respectfully requests the Court's leave to rely on the following submissions in relation to that issue.
1. For the following reasons, our client submits that the last date on which the first applicant could apply to the Tribunal was 21 May 2010 and that, accordingly, the application received by the Tribunal on 19 May 2010 was made within the time allowed.
2. The decision of our client's delegate dated 20 April 2010 to refuse to grant a TR676 Tourist visa to the first applicant is an MRT-reviewable decision covered by s.338(2) of the Migration Act 1958 (Cth) (Act). Pursuant to s.347(1)(b)(i) of the Act, an application for review of that decision must be given to the Tribunal within the prescribed period, being a period ending not later than 28 days after notification of the decision.
3. In the present case, the prescribed period ended at the end of 21 days after the day on which the first applicant received notice of the delegate's decision: Migration Regulations 1994 (Cth) (Regulations) r.4.10(1)(a). It is therefore necessary to identify the day on which the first applicant received notice of the delegate's decision. This is determined by s.494B and s.494C of the Act.
4. Section 494B of the Act sets out the methods by which our client may give documents to a person. The method set out in s.494B(4) is dispatch by prepaid post or by other prepaid means. In the present case, the letter at Court Book (CB) 35, by which our client's delegate gave a copy of his decision to the first applicant, was sent in accordance with s.494B(4).
5. Section 494C of the Act sets out when a person is taken to have received a document from our client. Pursuant to s.494C(4)(a), if our client gives the documents to a person by the method in s.494B(4) from a place in Australia to an address in Australia, the person is taken to have received the document 7 working days after the date of the document. This reflects the reference in the letter to "7 days from the date of this letter" at CB 35.9, which is clarified at CB 36.9, which states that "as this letter was sent by mail from a place in Australia to an address in Australia, you are taken to have received it seven (7) working days after the date of the letter. A working day does not include weekends or public holidays in the Australian State or Territory to where this letter was posted."
6. Having regard to the above, our client submits that the period within which the first applicant was required to lodge his application to the Tribunal should be calculated as follows:
(a) the date of the delegate's decision was 20 April 2010;
(b) the date on which the first applicant is taken to have received the letter notifying him of the delegate's decision, being 7 working days after the date of the delegate's decision (and noting that 26 April 2010 was a public holiday), was 30 April 2010; and
(c) the date by which the first applicant was required to lodge his application to the Tribunal, being 21 days after 30 April 2010, was 21 May 2010.
7. Our client notes that the interpretation of the applicable provisions set out above is supported by the decision of Siopis J in Keo v Minister for Immigration and Citizenship (2009) 177 FCR 479 at [3] to [10].
8. Our client further submits that, as the Tribunal was correct to find that the first applicant's application had been lodged within the time allowed, no issue arose which our client ought to have brought to the Court's attention at the directions hearing. Accordingly, there is no reason why our client ought not recover his costs on the usual basis.”
As stated above, Regulation 4.10(1)(a) of the Regulations prescribes that the period in which an application for review of an MRT reviewable decision must be given to the Tribunal, starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received.
Section 494C(4) of the Act states that where a document is sent in accordance with s.494B(4) from a place in Australia to an address in Australia the person is taken to have received the letter 7 working days after the date of the document.
I accept that applying that formula, as reflected in paragraph 6 of the letter above, the date on which the Applicants were required to lodge their applications for review to the Tribunal was 21 May 2010.
In the circumstances the application for review, lodged on 19 May 2010, was lodged within the statutory period and was therefore a valid application.
However, I also accept that because the Applicants had individual primary applications and separate passports it was not possible for them to lodge a combined application for a review to the Tribunal. It was also necessary for each applicant to pay a separate fee in respect of their application.
Regulation 4.12 refers to the circumstances in which applicants may combine their applications for review of a delegate’s decision by a tribunal. Regulation 4.12 is predicated on applicants having combined their primary applications in Australia. That was not the case in this proceeding. Clause 1218(3)(g) of Schedule 1 to the Regulations provides that combined applications may be made where applicants are included on the same passport. This was also not the case in this proceeding.
I note that on 20 May 2010, a case note discloses that Mr Singh was called by an officer of the Tribunal and, with the assistance of an interpreter, was informed that if he wished to lodge a separate application for his wife, he must fill in a separate form and pay a separate fee. The file note discloses that Mr Singh was told that the last day for lodgement for his wife’s application was 21 May 2010. The file note notes that Mr Singh said he understood.
No separate application for review was lodged by Ms Kaur or a separate review application fee paid.
At the Tribunal hearing, the Tribunal’s decision record noted that the Tribunal member explained to Mr Singh that it only had jurisdiction to deal with the application for review insofar as it was an application by one of the Applicants. The Tribunal explained that, while the Tribunal’s brochure stated that members of the same family unit could usually combine their applications for review, this was not possible in the case of the visas applied for by the Applicants, unless the Applicants were included on the one passport. The Tribunal then noted that it asked Mr Singh whether he wanted the Tribunal to proceed to consider his or his wife’s application for review. Mr Singh responded that the Tribunal should proceed on the basis that the review application related to him.
Following the hearing, the Tribunal wrote to the Applicants on 23 September 2010, informing them that it had no jurisdiction to deal with the Application for review made by one of them and stating that it proposed to deal with the application for review made by Mr Singh in accordance with the request he had made at the hearing. The letter invited a response in relation to the question of jurisdiction.
Mr Singh responded by letter, dated 6 October 2010, referring to his understanding that combined applications could be made and that he and his wife were not told that they could not file joint applications. The letter sought additional time for his wife to lodge a new application for review with the Tribunal and that the application fees be waived.
The Tribunal correctly noted that the Regulations do not permit combined applications for review in the present circumstance. The Tribunal noted clause 1218(3)(g) of Schedule 1 to the Regulations that stated, inter alia, that subclass 676 visas may be only submitted as combined applications if one of the applicants is included in the passport. The Tribunal noted that Regulation 4.12 stated that applicants may only combine their review applications if combination of the visa applications at the primary level is permitted. The Tribunal noted that in the present case, the Applicants have separate passports and made separate primary applications and are therefore not entitled to lodge a combined review application and must pay a fee in respect of each applicant.
The Tribunal found that it had no discretion to extend time to Ms Kaur to lodge an application for review with the Tribunal.
The Tribunal correctly found that the Delegate’s decision is an MRT reviewable decision pursuant to s.338(2) of the Act and that Ms Kaur was not entitled to combine her application for review with that of Mr Singh pursuant to Regulation 4.12. In the circumstances, the Tribunal found that it did not have before it an application from Ms Kaur properly made under s.347 for review of the Delegate’s decision and therefore did not have jurisdiction in relation to that application.
S.347(1)(a) of the Act requires that application of an MRT reviewable decision must be made in the approved form. The information provided to the Applicant’s by the Department, upon notification of the Delegate’s decision, made clear that each application for review attracts a fee unless waived. There is no evidence before me to suggest that any such waiver was granted. Indeed, as stated above, the Department made clear to Mr Singh in the telephone conversation with him on 20 May 2010 that his wife would need to lodge a separate application and pay a separate fee and that the last day for lodgement for his wife’s application was 21 May 2010.
However, it should be noted that the brochure sent to the Applicants by the Department with the letter notifying them that their visa applications had been refused, contains the following statement in relation to combined applications for review:
“Combined applications for review
Members of the same family unit can usually combine their applications for review. An application for review of a decision to require a security can also be combined with a related application for review of a decision to refuse to grant a visa. Where the applications are able to be combined, only one application fee is payable and only one application form needs to be used. “
Further, the first paragraph in Section A of the Application for Review the Migration Review Tribunal states as follows:
“Where applications for review are combined, each person is an applicant in his or her own right. The Tribunal will communicate with Review Applicant 1 about this application unless otherwise requested. Letters should be treated as applying to all applicants unless otherwise stated. Review Applicant 1 must inform each applicant of the contents of any communication from the Tribunal. If there are more than six review applicants, provide details of a separate sheet of paper and attach it to this form.”
Further, the Tribunal’s letter acknowledging receipt of the application lodged on 19 May 2010, made no reference to the inability of the Applicants to combine their applications and the necessity for each to pay a separate application fee.
All of those matters are unfortunate and one can readily accept that they did not assist the Applicants in understanding the statutory requirement that they lodge separate applications for review with the Tribunal of the Delegate’s decision and pay a separate application fee in respect of each review application.
However, as stated above, the Tribunal’s file note on 20 May 2010 clearly informed Mr Singh that it was necessary for his wife to complete a separate form and pay a separate fee. A note of that conversation records that Mr Singh had the assistance of an interpreter. The note records that Mr Singh was told that the last day for lodgement of his wife’s application was the next day, being 21 May 2010. The file note recorded that Mr Singh said he understood. I note that the time on the case note is 12:05 pm on 20 May 2010.
Mr Singh complained to this Court and to the Tribunal that his wife was not given sufficient time to be able to lodge an application in circumstances where they lived at Leeton in NSW. Neither of the Applicants provided any evidence to this Court about any particular difficulty they faced in being able to lodge the second application or pay the fee within that 30 hour period. In any event, none of the material received by them from the Department or the Tribunal informed them that they were able to make a combined application for review and pay one application fee in their particular circumstances.

In the circumstances, there was no application for review lodged by Ms Kaur within the statutory timeframe in accordance with s.347 of the Act. There is no discretion in the Tribunal to extend time. Accordingly, the Tribunal’s decision that it had no jurisdiction to entertain Ms Kaur’s application is correct.
In relation to the Tribunal’s consideration of Mr Singh’s application for review, the Tribunal referred to the evidence given by the applicant at the hearing.
There was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 16 November 2010 the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was also directed to give notice if he wished to rely on recordings of the hearing. However, no step was taken by the Applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing.
The Tribunal found that, on the evidence before it, it was not satisfied that Mr Singh’s intention was only to visit Australia. The Tribunal found that his evidence indicated that incentives for him to return to India at the end of the period of his visitor’s visa were minimal.
In the circumstances, the Tribunal was not satisfied that Mr Singh’s intention only to visit Australia is genuine and found that he did not satisfy the requirements of clauses 676.211 and 676.221 of schedule 2 of the Regulations. Clause 676.211 states that it is a criterion of his visa that Mr Singh’s expressed intention to only visit Australia is genuine. That criterion must be satisfied at the time of his application. Regulation 676.221(2)(a) repeats that same criterion stating that it must be satisfied at the time of the decision.
The Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.
Accordingly, the Tribunal’s decision to affirm the decision under review is not affected by jurisdictional error.
In the circumstances, pursuant to s.474 of the Act, this court has no power to interfere with the Tribunal’s decision.
The proceeding before this court commenced by way of application filed on 28 October 2010 should be dismissed with costs.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date: 17 December 2010