Wang v Minister for Immigration & Anor
[2008] FMCA 1423
•17 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WANG v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1423 |
| MIGRATION – VISA – Student (Temporary) (Class TU) visa – Migration Review Tribunal – where Tribunal found it had no jurisdiction. PRACTICE & PROCEDURE – Jurisdiction – Court has no jurisdiction to consider a ground of departmental error. |
| Migration Act 1958 (Cth) ss.65, 66, 347, 476, 494B Migration Regulations 1994 (Cth) reg 4.10 |
| Applicant: | YUANZHI WANG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1033 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 2 September 2008 |
| Date of Last Submission: | 2 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 17 October 2008 |
REPRESENTATION
| Applicant: | Appeared in person |
| Solicitor for the Applicant | Not legally represented |
| Solicitor for the First Respondent | Mr Snell |
| Solicitors for the Respondents | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs fixed in the sum of $3,750.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1033 of 2008
| YUANZHI WANG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicant asks the Court to review a decision of the Migration Review Tribunal signed on 21st February 2008 and handed down the next day in which the Tribunal found that it had no jurisdiction.
The applicant seeks a writ of certiorari quashing the Tribunal decision and a writ of mandamus compelling the Tribunal to rehear and redetermine the matter according to law.
He relies on two grounds of review:
(1)The decision of the MRT was affected by jurisdictional error; and
(2)The decision was affected by departmental error.
As the second ground seeks to review a decision by the Minister’s delegate, it was explained to the applicant that the Court had no jurisdiction to deal with that part of the applicant’s claim under subsection 476(2) of the Migration Act.
Background
The applicant applied for a Student (Temporary) (Class TU) visa on 14th March 2007. A delegate of the Minister refused to grant the visa on 23rd November 2007. The applicant applied to the Migration Review Tribunal on 17th January 2008 for a review of that decision. He supplied a statutory declaration with the application.
The statutory declaration said (relevantly):
In about early November 2007, I moved to my current address, being 34 Parkside Street, Kogarah Bay in New South Wales. On 11 November 2007, I sent a letter to the migration case officer handling my application, Ms Alison Franco, informing her of my new address.[1]
[1] Court Book at 26
The applicant went on to declare that on or about 7th January 2008 he went to his old residential address, where he found a final notice from Australia Post addressed to him. On inquiring at Hurstville Post Office on the following day, the applicant received the registered from the Minister’s delegate dated 23rd November 2007, informing him of the refusal of his application for a visa.
The applicant also provided a copy of a letter to Ms Franco dated
10th November 2007, advising of the change to his residential address.
Application to the Migration Review Tribunal
The Tribunal wrote to the applicant on 4th February 2008, inviting him to comment and provide further information on this information:
Based on an initial assessment, your application may be ineligible for review by the Tribunal.
You are invited to comment, in writing, on the following information:
Section 347 of the Act sets out the requirements for making an eligible application for review, including the requirement to make the application within the prescribed time period.
According to Regulation 4.10, you were required to make the application for review 21 calendar days after the date that the Department notified the visa applicant of its decision. The Department made its decision on 23 November 2007 and is taken to have notified the visa applicant of the decision on 2 December 2007. As the Department’s letter was posted to an address within Australia, this date is 7 working days after the date of the Department’s notification letter. This means that the last day you could have made the application for review was 27 December 2007. You made the application for review on 17 January 2008.
Your application for review may not be eligible because the application was not made to the Tribunal within the prescribed time period.[2]
[2] Court Book at page 37
The applicant’s migration agent replied to the Tribunal’s letter on
6th February 2008, arguing that the applicant’s actual date of receipt of the Department’s notification of the refusal of his application for a visa was 8th January 2008. As the applicant lodged his application for review on 17th January 2008, it was argued that his application was in time. The migration agent also argued that the applicant had provided his last residential address to the Department on 10th November 2007, but the notification was sent to his former address on 23rd November 2007.[3]
[3] Court Book at 39 - 40
The Tribunal signed a decision on 21st February 2008 and forwarded the decision to the applicant on 22nd February. The Tribunal decided that it did not have jurisdiction.
The Tribunal found that the applicant was seeking review of an MRT-reviewable decision and that the applicable prescribed period was 21 days, starting when the applicant was notified of the decision. The Tribunal stated:
The material before the Tribunal indicates that the applicant did not give the Minister written notice under s 494D of the name and address of an authorised recipient and that the decision notice, dated 23 November 2007, was sent by prepaid post on
23 November 2007 from a place in Australia to the applicant at an address in Australia, being the last residential provided to the Minister by the applicant for the purpose of receiving documents. Evidence from the Departments mail distribution services confirms that the decision notice was dispatched on 23 November 2007 to an address in Hurstville.[4]
[4] Court Book 50-51
The Tribunal noted the applicant’s submission and statutory declaration in which he claimed to have notified the Department of his change of residential address on 10th November 2007. The Tribunal noted:
There is no evidence on the Department’s electronic records or file that the change of address was received by the Department.[5]
[5] Court Book 51
The Tribunal found that the applicant was properly notified of the delegate’s decision and is taken to have been notified on 4th December 2007. The prescribed period of 21 days within which the application for review could have been lodged ended on 27th December 2007.
As the application for review was not received by the Tribunal until 17th January 2008, outside the mandatory time limit, the Tribunal found that it was not a valid application and the Tribunal had no jurisdiction.
Application for Judicial Review
The applicant claims in his application that the decision of the Migration Review Tribunal is affected by jurisdictional error.
He claims that the that the Tribunal failed to consider his claims that he had notified the Department of his change of address and simply referred to the Department’s record and found that his notice of change of address was not on their record.
The applicant further claims that the Tribunal had an obligation to carry out further investigation as to whether the change of address had been sent and received.
The applicant did not file any written outline of submissions but he attended the Court and made an oral submission. He told the Court that he believed that the process was unfair to him. He also said that he had consented to the Department communicating with him by email. They had done so previously and he was not expecting them to communicate by letter. He said it was misleading and unfair.
For the Minister, it was submitted that the Tribunal has no power to extend time for lodging an application for review beyond the prescribed time. The Tribunal had considered the applicant’s claim that he had notified the delegate of his change of address and contacted the delegate, who advised that no notice of change of address had been received.
Conclusions
The letter from the Minister’s delegate dated 23rd November 2007 notifying him that his application for a visa had been refused complied with the provisions of s.66(2) of the Act. It was posted by prepaid post to the applicant being the last residential address provided to the Minister by the applicant for the purpose of receiving documents.
The applicant claims that he advised the delegate on 10th November 2007 of a change of address, but the Tribunal’s inquiry of the Department did not show any such letter had been received.
The Tribunal found that the delegate’s decision notice was sent by prepaid post on 23rd November 2007, the day it was dated. It was sent within three days of its date by prepaid post to the applicant’s last residential address, which complies with the requirements of s 494B(4) of the Act. Accordingly, the applicant was taken to have received it 7 working days after its date (s 494C (4)).
The Tribunal correctly found that the applicant was taken to have received the letter on 4th December 2007. The Tribunal also correctly found that the prescribed period for lodging an application for review of an MRT-reviewable decision is 21 days, commencing when the applicant is notified of the decision (s 347(1)(b)(i) and regulation 4.10(1)(a)). The Tribunal also correctly found that the time imit is mandatory.
The Tribunal was correct in finding that the prescribed period for lodging the application for review ended on 27th December 2007 and, as the application for review was not received until 17th January 2008, it was not a valid application and the Tribunal had no jurisdiction.
The applicant complains that the Tribunal should have made further investigation as to whether his notice of change of address had been sent and received. The Tribunal did make inquiry of the delegate about the receipt of the notice of change of address:
Email communication with the delegate confirmed she had not received any change of address notification in respect of the applicant prior to the date of the decision notification letter dated 23 November 2007 (folio 53, MRT file).[6]
[6] Court Book 34-35
I am satisfied that the Tribunal was under no obligation to make any further investigation than it did.
The applicant also complained that the delegate had previously communicated with him by email and he was not expecting to receive a letter about the delegate’s decision. That may well be so, but the delegate notified the applicant in a way provided by s 494B of the Act and the Tribunal correctly found that the applicant was properly notified of the delegate’s decision.
There is no jurisdictional error.
The application will be dismissed with costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 10 October 2008
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