Wong v Minister for Immigration
[2009] FMCA 747
•13 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WONG v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 747 |
| MIGRATION – Student (Temporary) (Class TU) visa – jurisdictional error conceded. PRACTICE & PROCEDURE – Extension of time – application for extension of time – delay – the interests of the administration of justice. |
| Migration Act 1958 (Cth), ss.351, 477 Migration Legislation Amendment Act (No.1)(2009) (Cth), Sch. 2 s.7 Migration Regulations 1994 (Cth), Sch. 2 subclause 573.211(3)(d), Sch. 3 item 3005 |
| SZNOR v Minister for Immigration and Citizenship [2009] FMCA 639 Ex Parte Soetanto; Re Minister for Immigration and Multicultural Affairs & Ors [1999] HCA Trans 337 Gararth v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 316 SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 followed Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 followed Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 followed |
| Applicant: | LING KID WONG |
| First Respondent: | MINISTER FOR IMMIGRATION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG1611 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 27 July 2009 |
| Date of Last Submission: | 27 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 13 August 2009 |
REPRESENTATION
| Solicitor Appearing for Applicant: | Mr Dobbie |
| Solicitors for the Applicant: | Dobbie and Devine |
| Solicitor Appearing for the Respondents: | Ms Rayment |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The time for making the application for judicial review of the decision of the Migration Review Tribunal dated 30 October 2008 is extended to 7 July 2009.
An order in the nature of certiorari is to issue quashing the decision of the second respondent Migration Review Tribunal made on 30 October 2008.
An order in the nature of mandamus is to issue requiring the second respondent to determine the applicant’s application for review of a decision of a delegate of the first respondent not to grant the applicant a Student (Temporary) (Class TU) visa.
Parties are to pay their own costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1611 of 2009
| LING KID WONG |
Applicant
And
| MINISTER FOR IMMIGRATION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicant is applying for review of a decision of the Migration Review Tribunal made on 30th October 2008, affirming to grant him a Student (Temporary) (Class TU) visa. His application is out of time and he is applying for an extension of time.
It is a significant feature of this case that the Tribunal decision is affected by jurisdictional error, which the Minister concedes.
Background
The applicant applied for a Student (Temporary) (Class TU) visa on 6th September 2007. A delegate of the Minister for Immigration and Citizenship refused the application and notified the applicant on 16th October 2007.
On 12th November 2007 the applicant applied to the Migration Review Tribunal for review of that decision. The applicant attended a hearing of the Tribunal on 16th September 2008.
The Tribunal signed its decision on 30th October 2008, affirming the decision not to grant the applicant a Student (Temporary) (Class TU) visa. The Tribunal made this finding:
Therefore, the Tribunal finds that the applicant was granted his last held student visa on 23 May 2005 on the basis of the satisfaction of Schedule 3 criterion 4014. Accordingly, the Tribunal finds that the applicant does not satisfy criterion 3005 and therefore does not meet the requirements of cl. 573211(3) (d).[1]
[1] MRT Decision Record page 5 at [26]
The application filed his application for review and affidavit in support on 7th July 2009. In that application he set out the following ground of relief:
1. The Tribunal misinterpreted the applicable law and misapplied the law to the facts by finding that the Applicant did not satisfy subclause 573.2293)(d0 of Schedule 2 of the Migration Regulations 1994 on the basis:
(i)that the subclause required satisfaction of Schedule 3 item 3005; and
(ii)the Applicant did not satisfy item 3005 because he did not satisfy Schedule 3 item 4014
when there was no Schedule 3 item 4014 to be satisfied.
The Minister’s solicitors have conceded that this is indeed jurisdictional error. There is no item 4014 of Schedule 3.
Application for an Extension of Time
The application for judicial review is out of time and the Minister has filed a response opposing an extension of time to commence proceedings. The response says:
The Court has no jurisdiction to review the Migration Review Tribunal decision made on 30 October 2008. Subsection 477(1) of the Migration Act 1958(Cth) applies and the application in this Court was not filed within 35 days of the date of the Tribunal decision. The application for an extension of time pursuant to s. 477(2) is opposed.
The applicant claims that it is in the interests of the of the administration of justice that time be extended for the following reasons:
1. The Tribunal must act within its jurisdiction. The Tribunal’s error is such a manifest jurisdictional error that it should not be permitted to stand. In the event that the Court finds that the Tribunal has acted in excess of its jurisdiction, there is no good reason why the decision of the Tribunal should be allowed to stand.
2. The consequences on the Applicant are severe, should the extension of time not be granted; the Applicant has applied for a Student visa. He has been wrongly denied the visa and denied the opportunity to be further educated in Australia; he has also missed out on the opportunity to take advantage of the onshore residence program that is available for overseas students.
3. The Applicant has been denied the $1400 Tribunal application fee that he would have been entitled to have returned to him, had the Tribunal set aside the delegate’s decision (as it should have, but for its error). The Commonwealth should not be permitted to obtain a windfall from such an egregious error and the Applicant should not be denied his entitlement to such a significant amount of money because of that error.
4. The delay of the Applicant seeking review is approximately 8.5 months, but he has sought review within 10 days of receiving his first legal advice that he could seek judicial review. He has acted, therefore, in a timely manner. There is no real prejudice suffered by the Respondents in the application being permitted to proceed.
The applicant’s explanation for the delay is set out in his affidavit filed on 7th July 2009. He deposed that after he received a copy of the Tribunal decision on 30th October 2008 he sought advice from his migration agent, one Annie Xu, early in November 2008. He claims that she said to him:
The only way is to ask the Minister to let you stay under the Minister’s review.[2]
[2] Applicant’s affidavit at [6]
The applicant went on to claim that he was not told by the agent that he could seek judicial review of the decision. The applicant wrote to the Minister for Immigration and Citizenship on 3rd November 2008, seeking that the Minister exercise his discretion under s.351 of the Act to substitute a more favourable decision for the Tribunal decision.
The applicant deposed that he received the Minister’s reply in April 2009, declining his request to intervene.
The applicant then apparently did nothing at all until his girlfriend met a law student on about 20th June 2009. The law student advised her that the applicant should seek legal advice. He deposed that he spoke to the law student on 27th June and she directed him to his current solicitor, Mr Dobbie, that same day.
The application for judicial review containing an application for extension of time was filed on 7th July 2009.
The applicant was cross-examined on his affidavit by Ms Rayment, who appeared for the Minister.
The Applicant’s Submissions
Mr Dobbie, who appeared for the applicant, submitted that the Tribunal decision was noteworthy because of “an egregious jurisdictional error”. The applicant has to show that it is in the interests of the administration of justice to allow an extension of time to apply for judicial review.
Mr Dobbie referred to a recent decision of mine, SZNOR v Minister for Immigration and Citizenship[3] at [14]-[16], where I set out a number of matters that the Court needs to consider:
a)The explanation for the delay;
b)The extent of the delay;
c)The effect on the applicant if the extension of time is not granted;
d)The detriment or prejudice to the respondent if the extension is granted; and
e)The nature of the substantive application.
[3] [2009] FMCA 639
It was submitted for the applicant that this was a case where the applicant did not acquiesce in the correctness of the decision. He was seeking to have it changed. Mr Dobbie submitted that the delay was not a significantly long delay but it was a delay. He referred to the decisions of Gummow J in Ex parte Soetanto: Re Minister for Immigration and Multicultural Affairs & Ors[4], where his Honour found that a delay of approximately two years was not sufficient for the Court not to exercise its discretion in the applicant’s favour, and Gararth v Minister for Immigration and Multicultural and Indigenous Affairs[5], which concerned a delay of a little under two years, from 11th April 2002 to 18th March 2004.
[4] [1999] HCA Trans 337
[5] [2006] FCA 316
In Gararth v Minister for Immigration and Multicultural Affairs[6], Wilcox J considered whether an application to the Minister under s.351 of the Act constitutes an explanation for delay. His Honour held at [64]:
In the present case, there is an explanation. Fifteen days after the MRT’s decision, the appellants applied to the minister under s 351 of the Act. That was not an application at law: it was not capable of invalidating the MRT’s decision. However, it was a clear indication to the Minister, and his advisers, that the appellants were unwilling to accept the MRT’s decision as the final resolution of their rights. It was not unreasonable for the appellants to hold off any legal challenge to the MRT decision until they had ascertained whether the Minister would be prepared to override the decision pursuant to s 351.
[6] supra
Mr Dobbie also submitted that the Commonwealth should not receive a windfall of $1400.00, being the Tribunal fee, because of egregious jurisdictional error.
The First Respondent’s Submissions
Ms Rayment, who appeared for the first respondent, the Minister for Immigration and Citizenship, submitted that the application for judicial review had been filed on 7th July 2009, 78 after it should have been filed, on 20th April 2009.
She submitted that the applicant is an intelligent, educated man who read the Tribunal’s letter enclosing the decision but took no steps to apply for judicial review. Instead, he applied to the Minister under s.351 of the Act. The applicant was notified of the Minister’s refusal in January 2009, not in April.
Further, it was submitted that some of the applicant’s responses to questions asked in cross-examination were not entirely frank. The Court should not accept evidence from the applicant that the Tribunal decision was never discussed.
Conclusions
Having seen and heard the applicant in the witness-box, I am not persuaded that I should reject his evidence as not credible. While at times he was hesitant in his answers, he was generally not shaken in cross-examination.
Section 477 of the Migration Act sets a time limit on applications to the Federal Magistrates Court under s.476 of the Act. It provides that:
a)An application must be made within 35 days of the date of the migration decision (s.477(1));
b)The Court may extend that time if an application has been made in writing and the Court is satisfied that it is necessary in the interests of the administration of justice to make the order (s.477(2)).
In this case, the date of the Tribunal decision was 30th October 2008. However, Schedule 2 of the Migration Legislation Amendment Act (No 1) 2009 provides in s.7(2):
If the application relates to a migration decision made before the commencement of this Schedule, for the purposes of applying sections 477, 477A and 486A of the Migration Act 1958, treat the date of the migration decision as the date of that commencement.
The date of commencement of Schedules 1 to 3 of the Act was 15 March 2009. Thus, the deemed date of the Tribunal decision is 15 March 2009. It is common ground that the application in this matter should have been filed on or before 20 April. It was not filed until 7 July, which was
78 days after the time it should have been filed.In the recent decision of SZMNO v Minister for Immigration and Citizenship[7], which was an application seeking an extension for filing an appeal against a decision of a Federal Magistrate, Barker J at [14] followed the decision of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen[8], where his Honour held at 348-349 that five factors should be considered in determining whether relief ought to be given:
(a) Applications for an extension of time are not to be granted unless it is proper to do so; the legislative time limits are not to be ignored.
(b) There must be some acceptable explanation for the delay.
(c) Any prejudice to the respondent in defending the proceedings, caused by the delay, is a material factor militating against the grant of an extension.
(d) The mere absence of prejudice to the respondent is not enough to justify the grant of an extension.
(e) The merits of the substantial application are to be taken into account in considering whether an extension is to be granted.
[7] [2009] FCA 797
[8] (1984) 3 FCR 344
The Legislative Time Limit
As has already been stated, s.477(1) as it now stands requires an application to be filed within 35 days of the migration decision.
An Explanation for the Delay
I accept that the applicant in this matter never accepted the validity of the Tribunal decision and wished to have it changed. However, the fact that he sought the exercise of the Minister’s discretion under s.351 of the Act is not an acceptable explanation for the delay, or that part of the delay covered by the time when the letter was written and the applicant was awaiting the Minister’s reply.
Whilst there is divergent authority on the point, I am of that the Court should follow the decision of the Full Court in Vu v Minister for Immigration and Citizenship[9], a decision on appeal from this Court. In Vu, Jessup J, with whom Gyles and Besanko JJ agreed, held at [29]:
I do not think that the applicant’s approach to the Minister under s 351 of the Act provides an acceptable explanation for his failure to lodge an appeal within time.
[9] [2008] FCAFC 59
In this case, the greater part of the delay is only explained by the applicant not knowing what to do next after his application to the Minister was refused in January or April 2009. It was not until 20th June 2009 that the applicant’s girlfriend fortuitously met a law student at a course to be a barista[10] who advised her that the applicant should seek legal advice. The delay until then has not, in my view, been satisfactorily explained.
[10] Not a barrister
It was then that the applicant sought legal advice from his present solicitor, who filed his application and affidavit in support on 7th July 2009. The time taken to seek advice and for the solicitor to prepare and file the application and affidavit is in my view adequately explained, but this is only a small part of the overall delay.
The greater part of the delay, except for a few weeks after the applicant sought legal advice has not been adequately explained.
Prejudice to the First Respondent
It is not submitted that there is any significant prejudice to the Minister if the applicant were to be granted an extension of time. I note, however, that the mare absence of prejudice to the respondent is not enough to justify the grant of an extension.
The Merits of the Substantial Application
The application for relief is undoubtedly meritorious. The Minister has conceded that there is a jurisdictional error by the Tribunal as set out in the application. This, to my mind, is a significant factor in favour of granting the extension of time.
The conceded jurisdictional error should also be considered in the light of the overall length of the delay, even though most of it is unexplained. The date of the Tribunal decision is 30th October 2008, less than 9 months before the application was filed. The application was also filed 78 days after the amending legislation allowed.
The delay is not so lengthy as to persuade the Court that an extension of time to apply for relief in a strong case should not be granted. I am satisfied that it is necessary in the interests of the administration of justice to extend the time for making an application for review of the decision of the Migration Review Tribunal.
Jurisdictional Error
The Minister has conceded that there is a jurisdictional error. There is no issue that, if the Court is to extend the time for the applicant to make an application, then he should be granted relief. The error is that set out in the application, namely that the Migration Review Tribunal misinterpreted and misapplied the applicable law by finding that the applicant did not satisfy subclause 573.211(3)(d) of Schedule 2 of the Migration Regulations.
The Tribunal found that the applicant had to satisfy Schedule 3 criterion 3005 of the Regulations. It went on to find that the applicant did not satisfy criterion 3005 because it found that “the applicant was granted his last held student visa on 23 May 2005 on the basis of the satisfaction of Schedule 3 criterion 4014”.[11]
[11] Tribunal Decision Record page 5 of 6 at [26]
There is no Schedule 3 criterion 4014 in the Regulations.
Consequently, the Tribunal fell into jurisdictional error and it is appropriate for orders in the nature of certiorari and mandamus to issue.
Costs
The matter has been argued before the Court because of the applicant’s failure to comply with the time limit set out in subsection 477(1) of the Act. The first respondent has not been responsible for any delay. The application has been fully argued on the first court date, which shows a commendable preparation by the lawyers for both parties. In the light of the Minister’s concession of jurisdictional error, it is likely that the matter would have been resolved at a very early stage in the proceedings, although not necessarily before the first court date.
These are all matters to be considered when making an order for costs
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 5 August 2009
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