FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 305 |
| MIGRATION – Visa cancellation by Minister’s delegate – applicant’s authorised recipient validly notified of decision by registered mail –further notification to authorised recipient – whether second notification gives rise to new period in which review application can be commenced. ESTOPPEL – Applicant’s authorised recipient validly notified of decision by registered mail –further notification to authorised recipient – whether estoppel arises from second notification which prevents Minister from asserting that review application commenced out of time. |
| Acts Interpretation Act 1901, s.25 Migration Act 1958 (Cth), ss.116, 127, 338(3), 347(1)(b), 494B(4)(C), 494A, 494B, 494C and 494D r.2.55(1)(a). ss.494D(2) 494D(1) Migration Regulations 1994, rr.2.45, 2.54, 4.10(1)(b), form 956 |
| Applicant: | SUKHWANT SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 463 of 2009 |
| Judgment of: | Jarrett FM |
| Hearing date: | 3 November 2009 |
| Date of Last Submission: | 3 November 2009 |
| Delivered at: | Brisbane |
| Delivered on: | 6 May 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Boccabella |
| Solicitors for the Applicant: | A.J. Torbey & Associates |
| Counsel for the Respondents: | Mr Brady |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 13 July, 2009 is dismissed.
No Order as to costs.
SINGH v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 305 |
| MIGRATION – Visa cancellation by Minister’s delegate – applicant’s authorised recipient validly notified of decision by registered mail –further notification to authorised recipient – whether second notification gives rise to new period in which review application can be commenced. ESTOPPEL – Applicant’s authorised recipient validly notified of decision by registered mail –further notification to authorised recipient – whether estoppel arises from second notification which prevents Minister from asserting that review application commenced out of time. |
| Acts Interpretation Act 1901, s.25 Migration Act 1958 (Cth), ss.116, 127, 338(3), 347(1)(b), 494B(4)(C), 494A, 494B, 494C and 494D, r.2.55(1)(a), ss.494D(2), 494D(1) Migration Regulations 1994, rr.2.45, 2.54, 4.10(1)(b), form 956 |
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- Case
- [2010] FMCA 305
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court needed to address were whether the second notification given to the applicants' authorised representative constituted a new period for commencing a review application and whether the Minister was estopped from claiming the review application was untimely due to the second notification. The court considered whether the second notification, despite being an error, could be deemed effective and if estoppel principles applied in preventing the Minister from asserting the review application was out of time.
The court held that the second notification did not give rise to a new period for commencing a review application as the original notification was valid and sufficient. The second notification was an error but did not impact the validity of the initial notification. Additionally, the court found that the Minister was not estopped from asserting that the review application was out of time. The applicants had not demonstrated any reliance on the second notification that would warrant estoppel applying. The court concluded that the applicants' application for review was indeed out of time, leading to the dismissal of the application.
The final orders were that the application filed on 13 July, 2009, was dismissed, and there was no order as to costs.
Orders
Orders of the court
1.
The application filed on 13 July, 2009 is dismissed.
2.
No Order as to costs.
SINGH v MINISTER FOR IMMIGRATION & ANOR
[2010] FMCA 305
MIGRATION – Visa cancellation by Minister’s delegate – applicant’s authorised recipient validly notified of decision by registered mail –further notification to authorised recipient – whether second notification gives rise to new period in which review application can be commenced.
ESTOPPEL – Applicant’s authorised recipient validly notified of decision by registered mail –further notification to authorised recipient – whether estoppel arises from second notification which prevents Minister from asserting that review application commenced out of time.
Acts Interpretation Act 1901, s.25
Migration Act 1958 (Cth), ss.116, 127, 338(3), 347(1)(b), 494B(4)(C), 494A, 494B, 494C and 494D, r.2.55(1)(a), ss.494D(2), 494D(1)
Migration Regulations 1994, rr.2.45, 2.54, 4.10(1)(b), form 956
Essex County Council v Essex Incorporated Congregational Church Union [1963] AC 808
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193
Macrae v St Margaret's Hospital (1999) 19 NSWCCR 1; [1999] NSWCA 381
Pillai v Minister for Immigration & Multicultural Affairs [2001] FCA 1756
H v MIMA (2002) 118 FCR 153
Zhang v Minister for Immigration and Citizenship (2007) 161 FCR 419
Manaf & Anor v Minister for Immigration & Anor [2009] FMCA 139
Minister for Immigration & Citizenship v Abdul Manaf [2009] FCA 963; (2009) 111 ALD 437
Applicant:
PARGAT SINGH
First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent:
MIGRATION REVIEW TRIBUNAL
File Number:
BRG 464 of 2009
Judgment of:
Jarrett FM
Hearing date:
3 November 2009
Date of Last Submission:
3 November 2009
Delivered at:
Brisbane
Delivered on:
6 May, 2010
REPRESENTATION
Counsel for the Applicant:
Mr Boccabella
Solicitors for the Applicant:
A.J. Torbey & Associates
Counsel for the Respondents:
Mr Brady
Solicitors for the Respondents:
Clayton Utz
ORDERS
1.
The application filed on 13 July, 2009 is dismissed.
2.
No Order as to Costs.
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
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The delegate proposed an interview with each applicant in February, 2009 and Mr Young wrote on 16 February, 2009 expressing his intention to attend the interview. This letter is important, not because of the content, but because the letterhead was set out thus:IMMIGRATION AGENTSPostal Address Office AddressPO Box 15. 147 Lake St Cairns.Port Douglas Queensland, 4870QLD 4877Phone – FAX 07 4041 3955Mobile 0437 349 113Email john_young@ampi.com.auWeb Address; type="1"> On 24 February, 2009 the delegate gave the applicants a letter setting out some information and inviting comment. The letters were addressed to Mr Young at his Lake Street address in Cairns. The letters bear the notation “[Hand Delivered]”. Using the same form of letterhead that he had used previously, Mr Young replied on behalf of the applicants by a letter which appears undated. The content is not otherwise relevant. On 5 March 2009, the Minister (by a delegate) decided to cancel both visas. Two letters headed “NOTIFICATION OF CANCELLATION UNDER SECTION 116 OF THE MIGRATION ACT 1958”, each dated 5 March, 2009 were sent by registered post addressed to Mr Young. There was one letter for each applicant. According to the applicants’ case this is where the trouble began. The letters were addressed and dispatched to Mr Young’s post office box address in Port Douglas as set out on his letterhead, not his street address in Cairns. The letters enclosed a copy of the decision record. The decision record appears to comprise 4 pages printed on both sides of the page. Additionally, the decision record had three attachments – “A”, “B” and “C”. Pages 5 and 6 of the decision record is headed “Notification of Decision”. There is a second heading in the following terms: “Part C – notification of decision to cancel visa under s116 of the Migration Act 1958”. In both cases, that part of the decision record headed “Notification of Decision” was incomplete – in the case of Sukhwant Singh item 8 of the pre-printed form was incomplete because the time of signing was missing and in the case of Pargat Singh items 2 and 8 were incompletely filled in. Both notices, however, nominated the close of business on 25 March, 2009 as the time by which a review application needed to be made. The applicants did not suggest that those minor deficiencies (if that be what they are) invalidated the notices. The Minister’s decisions to cancel the applicants’ visas were MRT-reviewable decisions within the meaning of s. 338(3) of the Act. On 16 March, 2009 Mr Young wrote to the Minister’s delegate noting that he had that day received the notification letters. He noted that the letters were sent to his post office box rather than the Lake Street address in Cairns. It was asserted that an error had therefore been made by the Department and that the Department may wish to notify the applicants “correctly”. The following day the delegate sent to Mr Young, by email, a separate letter in respect of each applicant. The letters were dated 17 March, 2009 and they were in the same terms as those sent to Mr Young on 5 March, 2009 with a couple of exceptions.