Wu v Minister for Immigration
[2007] FMCA 48
•9 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WU v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 48 |
| MIGRATION – Review of a Migration Review Tribunal decision – attempt to file documents by facsimile – Rule 2.05 (1)(c) – can file by facsimile unless a filing fee is payable – application not correctly filed within time for filing – application incompetent – application dismissed. |
| Migration Act 1958, s.477 Federal Magistrates Court Rules, 2.05 (1)(c) |
| Applicant: | ZHENG RONG WU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1553 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 24 November 2006 |
| Date of Last Submission: | 24 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 9 February 2007 |
REPRESENTATION
| Solicitors for the Applicant: | Mr T. Leung of Link Lawyers |
| Solicitors for the Respondents: | Ms E. Palmer of Clayton Utz |
ORDERS
The Court grants the application of the First Respondent that the application for review is incompetent.
The Court orders that the application for review by Zheng Rong Wu, purported to be filed on 30 May 2006 is incompetent by virtue of s.477(1) of the Migration Act 1958 (Cth), and is dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1553 of 2006
| ZHENG RONG WU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application for dismissal of application for review
This is an application by the First Respondent for an order that the application filed by Zheng Rhong Wu on 30 May 2006 is incompetent by virtue of s.477 of the Migration Act.
Section 477 – Time limits on applications to the Federal Magistrates Court
(1) An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.
(2) The Federal Magistrates Court may, by order, extend that period by up to 56 days if:
(a) an application for that order is made within 84 days of the actual (as opposed to the deemed) notification of the decision; and
(b) the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.
(3) Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that period.
The decision of the Migration Review Tribunal which the applicant seeks to review was dated 19 April 2006. The applicant’s solicitor stated that the applicant could not remember when he received the copy of the Tribunal’s decision and sought to rely on deemed receipt 7 days after posting.
According to the affidavit of the applicant’s solicitor Terry Leung filed on 23 November 2006:
a)This calculation shows that the time for lodging an application for judicial review expired on 26 May 2006.
b)The Deponent prepared the application and the accompanying affidavit on May 19 2006.
c)On 22 May 2006 the Deponent telephoned the Registry of the Court and enquired whether the application and affidavit could be filed by facsimile. He was informed that it was possible under Rule 2.05 (1) (c). That rule provides:
“Unless a fee is payable for filing, a document may be filed by facsimile or e-mail in accordance with Rule 2.07.”
A filing fee of $288.00 was payable. An officer of the registry informed the Deponent that it was possible to file by facsimile, and that credit payment authority will need to be provided for processing of the fee.
d)The Deponent sent the application and affidavit to the Registry by facsimile on 23 May 2006.
e)On 24 May 2006 the Registry responded that an amended application form had to be completed.
f)The Deponent sent an amended application form by facsimile on 24 May 2006 and produced a facsimile transmission confirmation sheet.
g)The Deponent telephoned the Registry on 29 May 2006, as he had not received a response from it acknowledging receipt of the document sent by facsimile. He was informed by the Registry that credit card payment of the filing fee was not permissible. He was requested to either post the application and affidavit, or lodge them personally for filing as required by R 2.05.
He informed the Registry that, according to his calculations, the deadline for filing was 26 May 2006. He was given an assurance that as the document was lodged initially on 23 or 24 May 2006, the Registry would accept the documents for filing out of time.
h)On 29 May 2006 the Deponent sent 3 copies of each document and a cheque for payment of the filing fee of $288.00 to the Registry by express post.
i)Both documents are on the court file, stamped as having been filed on 30 May 2006.
Decision and orders
The First Respondent seeks an order that the application by Zheng Rong Wu purported to be filed on 30 May 2006 is incompetent by virtue of s.477 of the Migration Act, as having not been filed within the time allowed by the Migration Act.
On the construction most favourable to the applicant (who did not appear at the hearing) the Court deems that he received actual notification of the decision 7 days after it was posted to him, that is he received it on 26 April 2006. The Court notes that s.477 provides that:
“An application…must be made to the Court within 28 days of the actual (as opposed to deemed) notification of the decision.”
In the unique circumstances of this case, where the actual date was apparently unknown and because of the information received about filing by facsimile, the Court is prepared to deem the date of receipt of notification to be 26 April 2006. This led to the last date for filing of 26 May 2006 (s.477(1) of the Migration Act).
The applicant’s solicitor concedes that he sent an outdated form of application to the Registry on 23 May 2006.
Rule 2.04 requires substantial compliance with forms. Here the incorrect form of application was used when sent by fax on 23 May 2006. For the reasons set out hereunder it is not necessary for the Court to decide if there was substantial compliance under that rule.
On the affidavit of Terry Leung (affidavit of 22 November 2006, paragraph 11), the first form was sent to the Registry by facsimile on 23 May 2006. That does not mean that the application was filed on that day, as Rule 2.2 (1) (c) provides relevantly, that a document can be filed by facsimile unless a fee is payable for filing. A fee of $288.00 was payable for filing the application. That fee was not paid until 30 May 2006. Therefore, transmission of the documents by facsimile on 23 May 2006 did not mean that they had been filed in accordance with the Rules.
The Court notes that the earlier application is not stamped by the Registry as having been filed and therefore was not filed (Rule 2.05 (2)).
Section 477 provides that “an application…must be made to the Court within 28 days”…An application is only “made” when it is received by the Court in whatever form is permitted by the Court; SZICV v Minister for Immigration (Federal Magistrates Court 6 August 2006. Unreported, Smith FM).
When a filing fee is payable, Rule 2.05 (1) (b) requires documents to be delivered to the Registry personally or by post. The documents were not posted to the Registry in the correct form, and by the method prescribed by Rule 2.05 (1) (b) until 29 May 2006. They were received in due course and stamped as being filed on 30 May 2006. That is the date that the application was made.
Even allowing a date of receipt of notification 7 days after posting, filing on 30 May was outside the 28 period allowed by s.477 of the Act.
Section 477 provides the method by which an extension of time for filing can be obtained; that is, by order of the Court. Such application must be made to the Court within 84 days of the date of the actual notification of the decision (deemed to be 26 April 2006). That period of 84 days has now expired. At no time did the applicant apply for an order of this Court to extend the time.
There is therefore now no power to extend the time for making the application, and the applicant has not applied to the Court to do so.
The Court grants the application of the First Respondent that the application for review is incompetent.
The Court orders that the application for review by Zheng Rong Wu, purported to be filed on 30 May 2006 is incompetent by virtue of s.477(1) of the Migration Act, and is dismissed.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Sarah James
Date: 22 January 2007
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