Singh v Minister for Immigration

[2010] FMCA 931

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 931

MIGRATION – Application for extension of time to appeal from decision of Migration review Tribunal – whether applicant had reasonable explanation for delay – whether draft application for judicial review has any, or any reasonable, prospects of success – whether in the interests of justice to extend time.

Migration Act 1958 (Cth), ss.347, 477(1), 477(2)

Minister for Immigration & Citizenship v Abdoul Manaf [2009] FCA 963

Applicant: SATWANT SINGH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2171 of 2010

Judgment of: Emmett FM

Hearing date: 19 November 2010

Date of Last Submission: 19 November 2010

Delivered at: Sydney

Delivered on: 19 November 2010

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Respondents: Mr A. Markus

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2171 of 2010

SATWANT SINGH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made by the Applicant for an order pursuant to section 477 of the Act that time be extended to the Applicant to seek constitutional writ relief in respect of a decision of the Migration Review Tribunal dated 4 June 2010.

2. Section 477(2) provides that the Court may extend the statutory 35 day time period provided by section 477(1) of the Act, where an application for the order is made in writing to the Federal Magistrates Court specifying why the Applicant considers that it is necessary in the interests of the administration of justice to make the order, and the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

3. On 7 October 2010 the Applicant filed an application in this Court seeking judicial review of the decision of the Migration Review Tribunal dated 4 June 2010, and indicating that the Applicant sought that time be extended pursuant to section 477 of the Act.

4. The Applicant annexed a document headed “Grounds of Application” to that application, which is a combination of assertions and complaints. However, I accept that document as satisfying the requirement of section 477(2)(a) that the Applicant has made the application for extension in writing and specified why the Applicant considers that it is necessary in the interests of the administration of justice to make that order. The document headed “Grounds of Application” also seeks to identify complaints alleging jurisdictional error on the part of the Tribunal. 

5. The Applicant appeared before me at a directions hearing on 27 October 2010.  I explained to the Applicant on that occasion that he would need to have time extended to him in order to pursue the relief he sought in his application. I explained that two of the critical issues would be his explanation for his delay in filing his application in this court seeking judicial review of the Tribunal’s decision dated 4 June 2010, and his prospects of success in his substantive application.

6. At the directions hearing, the Applicant was provided on that occasion with the contact details of legal services providers and translating and interpreting services in documents headed in his own language in the event that he may wish to take advice. The information provided was to assist the Applicant in ensuring that any advice he took was from a qualified lawyer with a current practising certificate.

7. The Applicant was directed to file and serve any evidence in support of his application for an extension of time by way of affidavit, and that application was set down for hearing today.

8. The Applicant is not represented before this Court, although has the assistance of an interpreter in Hindi. In support of his application, the Applicant read an affidavit sworn by him on 4 November 2010, filed on 5 November 2010.  That affidavit attached a document entitled “Exhibition A Attached to the Affidavit”.

9. The affidavit was objected to by the solicitor for the first respondent, Mr Markus, on the grounds of relevance.  However, Mr Markus had no objection to the Court having regard to the document as a submission by the Applicant in support of his application to this Court.  The document was received on that basis.

10. In fact, the document makes no relevant or meaningful statement in relation to the particular issues before this Court.  It does not purport to provide any explanation for the Applicant’s delay in filing his application for judicial review of the Tribunal’s decision, nor does it address the relevant question before the Tribunal.

11. The application for review by the Tribunal was lodged by the Applicant outside the statutory period by some months. 

12. The Tribunal recited in some detail the statutory requirements for notification to the Applicant of the decision of the delegate of the Department, it also summarises in some detail the documents provided by the Applicant in support of his visa application, and the subsequent circumstances leading to the delegate’s decision and the notification of that decision.

13. Ultimately, the Tribunal was satisfied that the Department notified the Applicant of the delegate’s decision in accordance with the statutory regime and that the lodging by the Applicant of his review application was outside the statutory time limit.  For that reason, the Tribunal determined that it had no jurisdiction in the matter.

14. The Applicant arrived in Australia on 30 July 2007 as the holder of a student visa, subclass 570, which was valid until 11 September 2008.  On 15 September 2008, the Applicant lodged an application to remain permanently in Australia on the grounds of a marital relationship with an Australian citizen, in circumstances where he married on 9 September 2008.

15. In his Form 47SP, being an application for migration to Australia by a partner, the Applicant identified as his current residential address in Australia, “7 Warramunga Street, Nowra”.  He also stated on the Form 47SP that his address for correspondence was to be “7 Warramunga Street, Nowra”.  He further agreed on the Form 47SP to the Department communicating with him by fax, email or other electronic means, and he provided a mobile telephone number and email address. 

16. In the section of that Form 47SP dealing with options for receiving written communications, there is a statement, “All communications about this application should be sent to,” and then it says “Tick one box only.”  It then has a series of options including “myself or authorised recipient.”  There is a mark next to “myself,” which is crossed out, and a tick next to “authorised recipient.” 

17. Next to the name “authorised recipient” is a statement on the Form 47SP that says, “You must complete Form 956, appointment of a migration agent or exempt agent or other authorised recipient, and attach it to this application form.” 

18. A Form 956 was provided in the Applicant’s bundle of documents lodged with the Department on 15 September 2008.  The Form repeated that the Applicant’s current residential address was “7 Warramunga Street, Nowra”, and that that address was also his postal address.  The Form 956 identified the Applicant’s friend as a person who was instructed only to submit the application.  The friend’s name and address and telephone number were provided on the Form 956

19. A file note dated 28 August 2009 notes that the mobile number provided by the Applicant on his visa application had been disconnected.  The file note indicated that the second number rung by the officer was the Applicant’s wife’s number, and that the officer was told that the officer had the wrong number, that there was no Singh who lived there, and that he was not at Nowra either.  It would appear that it was for that reason that the officer sent the email dated 28 August 2009. That email informed him that the delegate had attempted to contact him on two mobile phone numbers but was unable to reach him.  The email informed the Applicant that the delegate had not received any further information, in particular, the Applicant’s comments as to why the application was lodged outside the validity of his student visa.  The email informed the Applicant that he had seven days to provide any further information before a decision was made on his case.

20. On 21 September 2009, the Department sent to the Applicant a copy of the delegate’s decision record by registered post.  The letter was addressed to the Applicant at “7 Warramunga Street, Nowra”.  The letter informed the Applicant of the strict time limits that were applicable in lodging any review application in respect of the delegate’s decision.  The letter also informed the Applicant that if he did not lodge a further application for a substantive visa or an application for review of that decision, then his bridging visa would expire on 22 October 2009.

21. I accept that the Applicant may never have received that letter.  However, I also accept the submissions of the solicitor for the first respondent, that, in the absence of any further communication or information from the Applicant prior to the making of its decision, the Department was obliged to identify the correct address of the Applicant in order to comply with its statutory requirement in notifying the Applicant of its decision.

22. The documents provided by the Applicant to the Department were not entirely consistent in that they stated that correspondence should be sent to the Applicant’s authorised recipient. However, the Form 956, nominating an authorised recipient, identified only a friend of the Applicant and limited his instruction to lodging the application. Otherwise all other information provided by the applicant as to his address or postal address was copied to “7 Warramunga Street, Nowra”. The Form 956 plainly states that the Applicant’s friend was only to act for the Applicant in submitting the application, and that both on the Form 956 and the Form 47SP, the Applicant identify the address “7 Warramunga Street, Nowra” as both his residential address and his postal address. 

23. In the circumstances, I am satisfied that the appropriate address to which the decision notification letter should have been sent, is the Applicant’s address at “7 Warramunga Street, Nowra”.

24. In reaching that decision I also have regard to subsequent material and information provided by the Applicant indicating that he did not sign the Form 956. However, in the light of the finding I have made above, in my view, it matters little whether or not the Applicant had, in fact, signed that document.

25. As I stated earlier, I accept the Applicant’s evidence that he did not receive the Tribunal’s decision notification letter. However, I have regard to material contained in the bundle of relevant documents filed on 10 November 2010 marked Exhibit 1R. These documents disclose that the letter addressed to the Applicant at “7 Warramunga Street, Nowra” lay at the post office until 12 October 2010 because it was sent by registered post. 

26. I further note a file note written by the delegate, dated 29 October 2009, referring to a telephone call with the Applicant on 26 October 2009. The file note states that the Applicant informed the delegate that he only realised that he had mail for collection on the third notice from the post office, however when he got to the post office they said the letter had already been returned to sender and that was the purpose for his call on 26 October 2009.The file note also states that the delegate told the Applicant that the Applicant’s case was out of review time, 22 October 2009 being the last date. 

27. In the circumstances I accept the submission of Mr Markus that if the Applicant received the third notice from the post office, he must have done so prior to 12 October 2010, being the date upon which the post office returned the letter to the department unclaimed.

28. Plainly, had the Applicant attended the post office prior to the letter been returned to the Department, he would have had sufficient time to lodge an application for review.  There is no explanation or evidence from the Applicant to explain what he did between obtaining the third notice from the post office and his telephone call to the department on 26 October 2009. 

29. I regard that matter as one of the matters relevant to the exercise of the Court’s discretion as to whether or not in the interests of justice time should be extended to the Applicant.

30. There does not appear to be any communication from the Applicant following that telephone call on 26 October 2009 until 16 February 2010 when an officer of the Department spoke with the Applicant during a compliance field interview.  It was on this occasion that the Applicant said that the signature on the Form 956 was not his signature and that his friend may have lodged that form without his permission and that he had moved out of “7 Warramunga Street, Nowra” some time in August 2009, but did not contact the department until October 2009 when he was informed that the notification letter had been sent to him.The file note discloses that the Applicant was told that they did not receive from the Applicant any new address for correspondence; however, they would send a courtesy copy of the decision to the Applicant. 

31. On 5 March 2010 an officer of the Department sent to the Applicant by way of email a letter addressed to the Applicant at the new address provided by the Applicant at Minto and dated 5 March 2010.  The letter otherwise was an exact copy of the Tribunal’s notification letter dated 21 September 2009. 

32. In support of his application to this Court this morning, the Applicant submitted that time should run from that email containing the letter dated 5 March 2010 rather than the notification letter dated 21 September 2009. 

33. In circumstances where I am satisfied that the letter dated 21 September 2009 was sent in accordance with the statutory regime and was therefore effective, time ran against the Applicant from that date Minister for Immigration & Citizenship v Abdoul Manaf [2009] FCA 963.

34. In those circumstances, the lodging of his review application by the Applicant on 17 March 2010 is clearly outside the statutory timeframe referred to in s.347(1) of the Act, by some many months.

35. In concluding that it had no jurisdiction, as I stated earlier, the Tribunal recorded in some detail the history of the Applicant’s visa application and subsequent contact and correspondence with the Applicant. 

36. The Tribunal had regard to the subsequent information provided by the Applicant that he was not aware that a Form 956 was lodged, and that the signature on that form was not his signature.  The Tribunal also referred to the information provided by the Applicant on 16 February (2010), that the answer he had provided on his application form as to where written communication should be sent, was that all written communication should be sent to the address that he provided in that form, being 7 Warramunga Street, Nowra, being the Nowra address.

37. The Tribunal also had regard to the fact that the Applicant, at no relevant time, provided the Department with any change of address from the Nowra address prior to the Delegate sending the decision notification on 21 September 2009. 

38. The Tribunal was satisfied that the letter dated 21 September 2009 was sent by prepaid post on 22 September 2009, from a place in Australia to the Applicant at an address in Australia being the last residential address provided to the Minister by the Applicant for the purposes of receiving documents.

39. In those circumstances it would appear that the Tribunal’s decision that the application for review was not received by the Tribunal until 17 March 2010, well after the prescribed period had expired, and that the Tribunal therefore had no jurisdiction to entertain the review application was open to it. . 

40. In those circumstances, I am satisfied that the Applicant has no or no reasonable, prospects of success in respect of his substantive application. 

41. In the circumstances, the application for an extension of time is refused with cost.   

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date: 29 November 2010