SINGH v Minister for Immigration

Case [2010] FMCA 1000

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 1000
MIGRATION – Review of Migration Review Tribunal (“Tribunal”) decision – review application made out of time – Tribunal had no jurisdiction to review primary decision – Ministerial delegate’s decision record not signed – covering notification letter signed – existence of MRT-reviewable decision does not depend on validity of primary decision – decision validly notified – notification may be given in two documents – lack of signature on decision record had no practical consequences for applicant – Tribunal’s decision that it had no jurisdiction not affected by lack of signature on delegate’s decision record – paraphrase of criterion which is not satisfied is sufficient specification of reason for visa refusal if principal clause in which criterion is located is identified - any alleged non-compliance with requirement to specify reason for refusal did not deny applicant an effective or adequate opportunity to make an application for review.
Migration Act 1958, ss.65, 66, 338, 347, 474, 494B, 494C, 494D
Migration Regulations 1994, regs.2.16, 4.10, cls.572.223 & 573.223 of sch.2
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 344
Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed (2005) 143 FCR 314
SZNZK v Minister for Immigration & Citizenship [2010] FCA 651
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338
SZGME v Minister for Immigration & Citizenship (2008) 168 FCR 487
Benissa v Minister for Immigration & Citizenship [2010] FMCA 657
Zhan v Minister for Immigration & Multicultural & Indigenous  Affairs (2003) 128 FCR 469
SZOFE v Minister for Immigration & Citizenship (2010) 185 FCR 129
Chan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 134 FCR 308
Applicant: SURINDER SINGH
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: MIGRATION REVIEW TRIBUNAL
File Number: SYG 1818 of 2010
Judgment of: Cameron FM
Hearing date: 16 November 2010
Date of Last Submission: 16 November 2010
Delivered at: Sydney
Delivered on: 17 December 2010

REPRESENTATION

Solicitors for the Applicant: Christopher Levingston & Associates
Counsel for the First Respondent: Mr D. Godwin
Solicitors for the Respondents: Australian Government Solicitor

ORDERS

  1. The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1818 of 2010

SURINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

  1. The applicant is a citizen of India. On 8 March 2010 he lodged an application for a Student (Temporary) (Class TU) subclass 572 visa. That application was refused by a delegate of the first respondent (“Minister”) on 7 April 2010. The applicant then sought review of that decision with the Migration Review Tribunal (“Tribunal”). However, the Tribunal found that the application had been lodged out of time and consequently concluded that it did not have jurisdiction. The applicant has applied to this Court for judicial review of the Tribunal’s decision.

  2. In these…

Continue reading SINGH v Minister for Immigration

Sign in free to access the full text

Details
AGLC
SINGH v Minister for Immigration [2010] FMCA 1000
Case
[2010] FMCA 1000
Decision Date

CaseChat Overview and Summary

The case of Singh v Minister for Immigration involved a dispute regarding the refusal of an application for a student visa by the Minister for Immigration. The applicant, Singh, challenged the decision on the basis that the refusal was not properly notified to him. The matter was brought before the Migration Review Tribunal, which dismissed Singh's application for review on the grounds that it was lodged beyond the prescribed time limit. Singh appealed to the court, arguing that the Tribunal had erred in its interpretation of when he received the notice of refusal.

The primary legal issue was whether the applicant had been correctly notified of the Minister's decision to refuse his visa application and whether this notification occurred within the prescribed time frame for lodging an application for review. This involved interpreting sections 66, 494B, and 494C of the Act, as well as relevant regulations, to determine the proper method and timing of notification and when the applicant was deemed to have received the notice.

The court found that the Minister had correctly dispatched the notification of refusal within three working days of the decision date, as required by the regulations. The notice was sent by prepaid post to the applicant's authorised recipient, and the court held that the applicant was taken to have received the notice seven working days after the date of the notice, in accordance with section 494C(4). The applicant had 21 days from this deemed date to lodge an application for review, but his application was received by the Tribunal beyond this period. Consequently, the court upheld the Tribunal's decision that the application for review was lodged out of time and affirmed the dismissal of Singh's appeal.

The court's decision resulted in the dismissal of Singh's appeal, confirming the Tribunal's ruling that the application for review was lodged beyond the prescribed timeframe and affirming that the Tribunal had no discretion to accept a late application.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 66(2) provides for the content of the notification:66 Notification of decision…(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. Section 494D(1) provides that if an applicant has appointed an authorised recipient to receive communications under the Act on his or her behalf, the Minister is to send notifications to that authorised recipient instead of to the applicant. If notification is given in this way it is taken to have been given to the applicant: s.494D(2). Section 494C of the Act relevantly provides:494CWhen a person is taken to have received a document from the Minister…Dispatch by prepaid post or by other prepaid means(4) If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:(a) if the document was dispatched from a place in Australia to an address in Australia – 7 working days (in the place of that address) after the date of the document; … The Minister’s delegate refused the application on the basis that the applicant failed to satisfy cl.572.223 of sch.2 to the Regulations. Specifically, the delegate was not satisfied that the applicant was a genuine applicant for stay as a student as he had not demonstrated that he had access to funds declared in accordance with sch.5A of the Regulations. On 12 May 2010 the applicant lodged an application for review with the Tribunal. However, on 19 July 2010 the Tribunal found that the application had been lodged out of time, noting in this connection that:a)the Tribunal received confirmation from the department’s mail and distribution service that the delegate’s decision had been sent on 8 April 2010 which, as prescribed by s.494B(4)(a), was within three working days of the notification letter of 7 April 2010;b)the notification letter was sent from a place in Australia to the applicant’s authorised recipient at an address in Australia. Therefore, the applicant was taken to have received the letter on 16 April 2010, being seven working days after the date of the notice;c)the applicant had 21 days from 16 April 2010 within which to lodge an application for review. That prescribed period ended on 7 May 2010;d)the application for review was not received by the Tribunal until 12 May 2010, after the prescribed period had expired; ande)the Tribunal considered the applicant’s submissions but found that it had had no discretion to accept an application lodged outside the prescribed timeframe and there was no provision for an extension of time in which to lodge an application for review.

Ratio Decidendi

Legal Principle Established

Section 347 of the Act sets out the requirements for an application for review to the Tribunal. Relevantly in this case, s.347(1)(b) provides:347 Application for review by Migration Review Tribunal(1) An application for review of an MRT-reviewable decision must:(a) …(b) be given to the Tribunal within the prescribed period, being a period ending not later than:(i) if the MRT-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—28 days after the notification of the decision; … The decision to refuse the applicant’s application for a student visa was an MRT-reviewable decision: s.338(2). For the purposes of s.347(1)(b), reg.4.10 of the Migration Regulations 1994 (“Regulations”) prescribes the periods within which applications for review can be lodged with the Tribunal. It relevantly provides:4.10 Time for lodgment of applications with Tribunal (Act, s 347)(1) For paragraph 347 (1) (b) of the Act, the period in which an application for review of an MRT-reviewable decision must be given to the Tribunal:(a) if the MRT-reviewable decision is mentioned in subsection 338 (2) or (7A) of the Act — 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;… When the Minister grants or refuses to grant a visa, s.66(1) requires that he notify the applicant of the decision in the prescribed way. Regulation 2.16(3) prescribes that this must be by one of the methods specified in s.494B, which relevantly provides:494B Methods by which Minister gives documents to a person… Dispatch by prepaid post or by other prepaid means(4) Another method consists of the Minister dating the document, and then dispatching it:(a) within 3 working days (in the place of dispatch) of the date of the document; and(b) by prepaid post or by other prepaid means; and(c) to:(i)the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or(ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents;… Section 66(2) provides for the content of the notification:66 Notification of decision…(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.