XIE v Minister for Immigration
[2005] FMCA 1993
•19 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| XIE v MINISTER FOR IMMIGRATION | [2005] FMCA 1993 |
| MIGRATION – Application dismissed. |
Murphy v Minister of Immigration, Multicultural and Indigenous Affairs (2004) FCA 657
MXNAX v The Minister (2004) FCA 1126
Fernando v The Minister (2000) 97 FCA 407
VOAL v The Minister (2003) FCA 397
VOAM v The Minister (2003) FCA 396
| Applicant: | BIN XIE |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | BRG 95 of 2005 |
| Delivered on: | 19 April 2005 |
| Delivered at: | Brisbane |
| Hearing date: | 19 April 2005 |
| Judgment of: | Baumann FM |
REPRESENTATION
| Solicitors for the Applicant: | Van Zyl Lawyers |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the application be dismissed.
That the applicant pay a contribution to the respondent's costs fixed in the sum of $4700 within 60 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 95 of 2005
| BIN XIE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Settled from ex tempore reasons)
Introduction
I have before me today an application for review filed on 23 December 2004 in the Federal Court of Australia, which was, by order of that court of 2 February 2005, transferred to this court and heard by me today. The applicant, in the application for review, sets out the grounds for review as follows:
“The Migration Review Tribunal, MRT, made a jurisdictional error in the exercise of its discretion in that:
(1)The MRT held the prescribed period for review as 21 calendar days from the date of notification of the department's decision. The MRT erred in its finding in that section 347(1) read with section 338(2) of the Immigration [sic] Act, provides for a period of 28 days from the date of notification of decision (35 days in total).
(2)The MRT made a jurisdictional error in applying the period of 21 days after notification of the visa refusal decision as specified in Migration Regulation 4(10) instead of the 28 days as specified in section 347(1) of the Migration Act.
(3)The MRT erred in not finding that the provisions of the Act takes precedence over the provisions of the Migration Regulations.
(4)The MRT erred in not taking into consideration that the applicant lodged his review within the prescribed period, in that the applicant received notification of its decision to refuse his visa application on 1 September 2004 and lodged his review on 8 September.
(5)The MRT erred in not finding that the review application was lodged within the specified time limit.”
I have today had the benefit of brief oral argument supplementing written submissions filed and served by the parties. I have considered those submissions.
Background
The applicant is a national of the Peoples Republic of China and entered Australia on 4 October 2001 on a student visa. Whilst there may have been some previous issues with the applicant's student visa, those matters were resolved. However, on 11 March 2003, the applicant applied for another student visa. The basis of the visa application at that time stated an intention of the applicant to study a Diploma of International Business, which was to commence in March 2004 and finish by March 2005.
The application gave an address for service and indicated that all correspondence in relation to the visa application should be directed to him personally. When it became apparent to the Minister that there were some difficulties in the applicant having failed to sit for his exams in semester 1, that being apparently reported to the Department, on
4 August 2004, a Delegate of the Minister refused to grant to the applicant a student visa. The decision record was posted to the applicant's last address for service set out in his application filed
11 March 2004. I am satisfied it was sent by registered mail under cover of the Department's letter bearing the same date. Certainly the applicant says that he did not collect the letter from Australia Post until 1 September 2004. I deal with that allegation shortly.
On 8 September 2004, the applicant lodged with the Migration Review Tribunal an application for review seeking review of the Delegate's decision, and by decision made 9 December 2004, the MRT decided the applicant's application for review to the Tribunal was ineligible because it was lodged out of time.
The actual decision of the MRT was in the following terms:
“As the review application was lodged with the Tribunal on 8 September 2004, the review application was not lodged within the prescribed period for applying for review.”
In determining what was the prescribed period to reply, it is necessary, it seems to me, to consider the following chronology.
On 4 August 2004, a Delegate of the Minister refuses to grant a student visa, and a letter of refusal is sent on that day to the last known address as given to the Department by the applicant. The letter was also dated 4 August 2004.
By operation of s.494C(4)(a) of the Migration Act, the applicant is "taken to have received" the document "seven working days after the date of the document." I am satisfied the date of deemed receipt was 13 August 2004. The fact that the applicant did not collect the document until 1 September 2004 is irrelevant to the deeming provision as identified in decisions such as that of Spender J, Murphy v Minister of Immigration, Multicultural and Indigenous Affairs (2004) FCA 657.
Regulation 4.10(1)(a) of the Regulations provides that for the purposes of s.347(1)(b), in respect of a MRT reviewable decision under s.338(2) of the Act, the application must be lodged with the MRT within 21 calendar days after the day on which the notice is received. I am satisfied the last day for lodgement of the application to the MRT was therefore 6 September 2004 (see section 6.4.5 of the Act).
It is, of course, the submission put strongly by the advocate for the applicant that:
“In view of the different time periods in the regulation of the Act, strict adherence to the requirements of a valid notice must be given.”
Further that, in effect, the applicant had 28 days after the notification of the decision to lodge the review to the MRT. I do not accept that submission. The review application was lodged two days late on
8 September 2004. As I say, the applicant says there is a "contradiction" between s.347(1) of the Act (which provides a maximum of 28 days, and regulation 4.1(a) which specifies only 21 days).
In the initial submissions, the applicant had failed to consider the effect of section 347(5) of the Act which states that:
“Regulations may, for the purpose of paragraph 1(b) specify different periods in relation to different classes of MRT reviewable decisions.”
I am satisfied that the Act permits the regulations to specify a period less than 28 days. The argument advanced by the applicant has, in my view, no merit. Whilst I have some sympathy for the applicant, I am bound by the authorities which make it clear that the time limits must be strictly applied (see MXNAX v The Minister (2004) FCA 1126, which, although applying to an RRT Review application, "out of time" adopts the same analysis referring, as it does, to Fernando v The Minister (2000) 97 FCA 407, followed by French J in VOAL v The Minister (2003) FCA 397, and VOAM v The Minister (2003) FCA 396.) The legislation does not make any provision for extensions of time.
As a result, in my view, the decision of the MRT was correct and no jurisdictional error is detected by me. As a result, the decision is a privative clause decision, and this court has no jurisdiction to entertain any review. The current application before me must be therefore dismissed.
I propose to fix costs. I will order that the applicant pay a contribution to the respondent's costs fixed in the sum of $4,700 within 60 days.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
Date:
0
1
0