VISHAL v Minister for Immigration

[2011] FMCA 893

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VISHAL v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 893

MIGRATION – Application to review decision of the Migration Review Tribunal that it did not have jurisdiction – no jurisdictional error. 

Migration Act 1958 (Cth), ss.66, 338, 347, 360, 494B, 494C
Migration Regulations 1994 (Cth), regs.2.16, 4.10

SZEYK v Minister for Immigration and Citizenship (2008) FCA 1940

Applicant: VISHAL VISHAL

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 928 of 2011

Judgment of: Barnes FM

Hearing date: 2 November 2011

Delivered at: Sydney

Delivered on: 2 November 2011

REPRESENTATION

Solicitors for the Applicant: Minter Ellison

Respondent: In person (by telephone)

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the sum of $3,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 928 of 2011

VISHAL VISHAL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised From Transcript)

1. This is an application for review of a decision of the Migration Review Tribunal dated 11 April 2011.  The Tribunal found that it did not have jurisdiction in relation to an application for review of a refusal to grant the applicant a Skilled (Provisional) (Class VC) visa. 

2. The applicant applied for a Skilled (Provisional) (Class VC) subclass 485 visa on 5 March 2009.  The delegate refused to grant the visa on 3 August 2010.  The applicant was notified of the decision by letter dated 3 August 2010 sent by email on that date to the email address he had provided to the Department of Immigration. 

3. On 26 August 2010 the applicant sought review by the Tribunal.  In a letter accompanying the application, his migration agent stated that he had received the departmental email on “6th of August” (sic) as he was “out of Sydney and did not have internet access”.  The agent acknowledged that the prescribed time for a review application had expired, but nonetheless asked the Tribunal to accept the application.  

4. On 22 February 2011, after obtaining information from the Department confirming notification of the delegate’s decision to the applicant on 3 August 2010, the Tribunal wrote to the applicant inviting him to comment on its preliminary view that his application was not a valid application as it was not lodged within the relevant time limit which expired on 24 August 2010. 

5. The applicant provided a response on 9 March 2011 in which he claimed that he had been in “Newcastle, during the holidays” and had not “come back” until 26 August 2010, that in the interim he “didn’t check [his] email due to net problem”, and that when he came back to Sydney on “25 August at night” (sic), he checked his email and then read about the decision.  He thought that he had 28 days to apply to the Migration Review Tribunal and on 26 August 2010 his migration agent had lodged the review application on his behalf.  He claimed it was an oversight on his part as he had calculated 28 days and misinterpreted the last date lodging an application for review as 31 August 2010. 

6. In its decision of 11 April 2011 the Tribunal referred to its preliminary view, its letter to the applicant and his submission in reply.  It set out the relevant law in relation to the time limits on an application for review in the Migration Act 1958 (Cth) (the Act) and the Migration Regulations 1994 (Cth). The Tribunal found that it had no jurisdiction to review the delegate’s decision because the application was not made within the applicable time limit.

7. In its findings and reasons the Tribunal stated that it had had regard to the Departmental file and the submissions from the applicant’s migration agent and from the applicant in relation to jurisdiction. 

8. The Tribunal found that the applicant was seeking review of an MRT-reviewable decision within s.338(2) of the Act and that such an application had to be lodged with the Tribunal within a period not later than 21 days after the date on which notice of the delegate’s decision was received (s.347(b)(1)(i) and reg.4.10(1)(a)).

9. The Tribunal was satisfied that the content of the delegate’s decision complied with the requirements of s.66(2) of the Act, that the applicant had not given the Minster written notice of an authorised recipient and that the delegate’s decision notice of 3 August 2010 had been transmitted by email on 3 August 2010 to the applicant’s last email address provided to the Minister for the purpose of receiving documents in accordance with s.66(1) and s.494B(5) of the Act.

10. The Tribunal found that on this basis the applicant was taken to have received the notice of the delegate’s decision on 3 August 2010, being the day the notice was transmitted. 

11. The Tribunal set out the applicant’s explanation for the delay but found that this had afforded no basis for accepting the application for review as the Tribunal did not have a discretion to consider applications lodged outside the prescribed period. 

12. Based on the information before it, the Tribunal found that the applicant was properly notified of the delegate’s decision and that he was taken to have been notified on 3 August 2010 so that the prescribed period of 21 days within which the application for review could be lodged had ended on 24 August 2010.  As the application for review was not received by the Tribunal until 26 August 2010, after the prescribed period had expired, the Tribunal concluded that the application for review was not valid and that it had no jurisdiction in the matter. 

13. The applicant sought review by application filed in this court on 10 May 2011.  There are two grounds in the application.  The applicant did not file written submissions or attend the hearing.  He was contacted by telephone and participated in the hearing on that basis.  He was given the opportunity to elaborate on the grounds in his application or on any other basis on which he contended that the Tribunal made a jurisdictional error. 

14. The first ground in the application is that the Tribunal did not give the applicant an “opportunity for hearing”. However the Tribunal found, correctly, that it did not have jurisdiction. In such circumstances no obligation arose under s.360 of the Migration Act to invite the applicant to a hearing. (See SZEYK v Minister for Immigration and Citizenship (2008) FCA 1940 at [34] and the cases cited therein.) More generally, insofar as the applicant intended to contend that the Tribunal had failed to accord him procedural fairness either on this basis or on the basis of the second ground, which is that the Tribunal “did not ask for any material”, no failure to accord procedural fairness has been established.  The Tribunal gave the applicant the opportunity to make submissions on the question of whether it had jurisdiction having regard to the time of lodging the application for review.  The applicant provided a written submission and that submission and that of his migration agent were considered by the Tribunal in its reasons for decision.  The Tribunal was not under an obligation in such circumstances to ask for any material or documents as the applicant appears to contend.  Insofar as it had an obligation to accord the applicant procedural fairness it met such obligation by giving him a reasonable opportunity to deal with matters adverse to his interests that the Tribunal proposed to take into account in exercising its power.  (See SZEYK.) 

15. The applicant did not specifically take issue with the Tribunal’s finding that it had no jurisdiction. However I have considered this matter as the applicant is self-represented. I am satisfied that, as submitted by the first respondent, the Tribunal correctly found that it had no jurisdiction on the basis that the application was lodged outside the applicable time limit for the reasons that the Tribunal gave in its reasons for decision. In particular, the delegate’s decision made on 3 August 2010 was sent to the applicant by email under cover of a letter of the same date. In these circumstances the delegate gave notice of the decision in a manner prescribed by the Migration Regulations, (see reg.2.16 and s.494(B)(5) of the Act) as required by s.66 of the Act.

16. Hence, pursuant to s.494C(5) of the Act, the applicant was deemed to have received the delegate’s letter at the end of the day on which it was emailed, being 3 August 2010. That is so whether or not the applicant in fact actually read the email at that time or not until 25 August 2010. The Tribunal also correctly calculated that the applicable prescribed period was 21 days from the date of deemed receipt of the notice pursuant to s.347(1)(b)(i) of the Act and reg.4.10(1)(a) of the Regulations. Hence the applicant’s failure to lodge his application for review until 26 August 2010 meant that the Tribunal had no jurisdiction to review the delegate’s decision. The Tribunal correctly found that it did not have jurisdiction to consider an application lodged outside the prescribed period.

17. The applicant raised with the court the fact of his personal circumstances, that he was married with a family here, that it would be difficult for him to return to his home country and that he wished to have a further opportunity to sit for another IELTS English test.  However the court has no jurisdiction on humanitarian grounds to remit a matter to the Tribunal.  As no jurisdictional error has been established, the application must be dismissed. 

18. The applicant has been unsuccessful and there is nothing in the circumstances of this case to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent.  The applicant sought a reduction in the amount and time to pay such costs.  However the amount sought is appropriate and reasonable in light of the nature of this and other similar matters.  I do not propose to make a specific order for the time for payment of the costs. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date:  17 November 2011