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Swee Yen Tay v Migration Review Tribunal

Swee Yen Tay v Migration Review Tribunal

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Case Copied 19 May 2009 25 min read

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FEDERAL COURT OF AUSTRALIA
Swee Yen Tay v Migration Review Tribunal [2009] FCA 515
MIGRATION – application for Skilled (Provisional) Graduate Visa – delegate of second respondent refused application – decision and reasons transmitted to applicant by e-mail – applicant taken, under legislative provision, to have received document at end of day on which document transmitted – applicant first saw decision and reasons after time period for application for review by first respondent had elapsed, due to applicant’s computer having been stolen and subsequent difficulty in obtaining access to e-mail – second respondent’s Department refused applicant’s request to re-notify or treat as void delegate’s decision – Tribunal wrote to applicant, noting possible ineligibility of application – applicant brought proceeding seeking declaration that relevant legislative provision creates rebuttable presumption as to date of receipt of document – application by second respondent to set aside originating process – whether originating process can be set aside because applicant has no prima facie case on merits – whether there is a matter in sense of justiciable controversy – whether there are jurisdictional limits on power of Court to make declaration, aside from statutory intention to exclude remedy – whether jurisdiction to make declaration in exercise of federal judicial power is narrower than in case of non-federal judicial power
Held: second respondent’s application dismissed – originating process cannot be set aside because applicant has no prima facie case on merits, and there is a matter in sense of justiciable controversy.
Constitution Ch III
Federal Court of Australia Act 1976 (Cth) s 21, s 31A
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 476, 476A, 494B, 494C
Federal Court Rules O 8 r 3, O 9 r 7, O 11 r 16, O 20 r 2, O 29 r 2
Migration Regulations 1994 (Cth) reg 4.10
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 discussed
Amust Computer Corporation Pty Ltd v Australia Entre Business Centres Pty Ltd (No 2) [1987] ATPR 40-829 cited
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 cited
Cell Tech Communications Pty Ltd v Nokia Mobile Phones (UK) Ltd (1995) 58 FCR 365 cited
F Sharkey & Co Pty Ltd v Fisher (1980) 50 FLR 130 cited
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 discussed
Gardner v The Dairy Industry Authority of New South Wales (1978) 52 ALJR 180 cited
Ibeneweka v Egbuna [1964] 1 WLR 219 discussed
IMF (Australia) Ltd v Sons of Gwalia Ltd (admin apptd) (2004) 211 ALR 231 discussed
In re the Judiciary Act 1903-1920 and In re the Navigation Act 1912-1920 (1921) 29 CLR 257 discussed
J N Taylor Holdings Ltd (in liq) v Bond (1993) 59 SASR 432 referred to
Maryland Casualty Co v Pacific Coal & Oil Co 312 US 270 (1941) discussed
Mentha v GE CapitalLtd (1997) 154 ALR 565 referred to
Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 550 referred to
Purchas v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] FCA 515
Decision Date: 19 May 2009

CaseChat Overview and Summary

In the matter of Swee Yen Tay v Migration Review Tribunal, the applicant, a Malaysian national, contested a decision made by a delegate of the second respondent to refuse her application for a Class VC Subclass 485 Skilled (Provisional) Graduate Visa on the grounds that she lacked competent English. The delegate's decision, dated 22 September 2008, was communicated to the applicant via her email address. However, the applicant had not accessed her email since her computer was stolen on 25 June 2008, and she only became aware of the decision on 16 October 2008. She sought legal advice and was informed that an application for review by the Migration Review Tribunal was out of time, as the time limit for such an application was 21 days from the date of receiving notice of the decision.

The primary legal issues before the court were whether the Migration Review Tribunal had jurisdiction to review the decision under the Migration Act 1958 (Cth) and whether the notice of motion issued by the second respondent could be dismissed on discretionary grounds. The court needed to determine whether the applicant's unawareness of the decision due to circumstances beyond her control could be a valid ground for extending the review period. Furthermore, the court had to consider whether the second respondent could use a different procedure to challenge the applicant's eligibility for review.

The court held that there was an alternative procedure available to the second respondent to challenge the applicant's eligibility for review, which involved pursuing the matter before the Migration Review Tribunal and subsequently in the Federal Magistrates Court. The court reasoned that it did not have the jurisdiction to set aside an originating process on discretionary grounds under O 9 r 7 of the Federal Court Rules, as this rule was confined to cases where the court lacked jurisdiction or the originating process was an abuse of process. Consequently, the notice of motion issued by the second respondent on 27 November 2008 was dismissed, leaving the issue of costs to be determined between the parties.

Orders

Orders of the court

1. The notice of motion issued by the second respondent and dated 27 November 2008 be dismissed.

Note:

Background

Background to the litigation

Before considering the issues, it is necessary to set out the factual context in which the issues arise. That can be done fairly briefly.The facts An agreed book of documents was put before me. There does not appear to be any relevant factual dispute between the parties. The applicant is a national of Malaysia. In about the middle of December 2007, she completed a course of study in Australia as an overseas student. On 28 or 29 December 2007, she applied for a Class VC Subclass 485 Skilled (Provisional) Graduate Visa. On her application, she stated that she agreed to the Department contacting her via e-mail and she provided an e-mail address. She said in her affidavit, which was in the agreed book of documents, that she was in the habit of checking her e-mail account on a regular basis. On 22 September 2008, a delegate of the second respondent decided to refuse the applicant’s application. The delegate refused her application on the ground that she did not have competent English. The delegate’s decision and the reasons for it were given to the applicant by forwarding the documents to her e-mail address. The applicant’s computer had been stolen from her home on 25 June 2008. She had contacted the police and officers had attended at her home. The applicant had been able to use a friend’s computer to read her e-mail correspondence, including a letter dated 25 July 2008 sent by the Department, inviting her to provide relevant documents. She had provided documents to the Department in August 2008. Meanwhile, she had asked a friend in Malaysia to buy a new computer for her. He had done so on 24 September 2008. She had received the computer in Australia in late September 2008. She had difficulty obtaining access to her e-mails and did not do so until 16 October 2008. It was on that date that she saw, for the first time, the decision and reasons for decision of the delegate. The applicant sought legal advice on 20 October 2008. She received advice that an application for review by the Tribunal was out of time because the time limit was 21 days from the date she received notice of the decision (see Migration Regulations 1994 (Cth) reg 4.10), and because the Department was likely to take the view that she had received such notice on 22 September 2008 when the decision was sent to her e-mail address. She was also advised by her solicitors that, had she had the right to seek review by the Tribunal, she could have put forward further evidence of her English language ability. On 20 October 2008, the applicant’s solicitors wrote to the Department, asking the second respondent to re-notify or treat as void the delegate’s decision of 22 September 2008. The basis of the request was that the applicant had not in fact become aware of the delegate’s decision until 16 October 2008, and that there was reason to think that she could satisfy the Tribunal that she had competent English. On the same day, the Department advised the applicant’s solicitors that her request was refused.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BESANKO J

On the face of it, there is a strong case for declining to make a declaration solely on the ground there is an alternative procedure or remedy available to the applicant. That alternative procedure or remedy involves pursuing the matter before the Tribunal and then by an application for constitutional writs in the Federal Magistrates Court. In fact, the Act provides that such an application for constitutional writs must be brought in the Federal Magistrates Court (see s 476 and s 476A). The difficulty for the second respondent is that this is a discretionary matter and I do not think the procedure in O 9 r 7 can be used to set aside an originating process on discretionary grounds. For reasons I have given, I think O 9 r 7(1)(a) is confined to cases where the Court does not have jurisdiction or the originating process is an abuse of process. Whether it is open to the second respondent to utilise a different procedure which will enable him to ventilate the issue as a preliminary question is a matter for him.Conclusion The notice of motion issued by the second respondent and dated 27 November 2008 must be dismissed. I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

Established by: BESANKO J

Full text does not contain this section.