Xue v MIAC
[2009] FMCA 421
•28 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| XUE v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 421 |
| MIGRATION – Review of the decision of Migration Review Tribunal – applicant did not meet the requirements of cl.572.222 – application for an extension of time received out of time – application dismissed. |
| Migration Act 1958 (Cth), ss.359, 359(2), 359A, 359B, 359C, 360(3), 363A, 379A, 379A(4), 379C(4)(a), 379F Migration Regulations 1994 (Cth), cl.572.222 of sch.2, reg.4.17(4) |
| M v Minister for Immigration & Multicultural Affairs [2006] FCA 1247 Usman & Anor v Minister for Immigration & Immigration Affairs [2005] FMCA 966 Minister for Immigration & Multicultural & Indigenous Affairs v Sun [2005] FCAFC 201 |
| Applicant: | NAN XIAO XUE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 493 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing date: | 28 April 2009 |
| Date of Last Submission: | 28 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 28 April 2009 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Appearance for the Respondents: | Ms E Warner Knight |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application made on 4 March 2009 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 493 of 2009
| NAN XIAO XUE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
I have before me today an application made on 4 March 2009 under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) which affirmed the decision of a delegate of the respondent Minister to refuse a student visa to the applicant. The Tribunal’s decision was made on
2 February 2009, and notified to the applicant by letter dated
3 February 2009.
Background
The Minister has put a bundle of relevant documents before the Court (Court Book – “CB”) and the following relevant background may be drawn from this bundle of documents:
(1)On 8 March 2007 the applicant applied for a student (temporary) visa (CB 1 to CB 6).
(2)This application was ultimately, and relevant to the proceedings today, refused on 31 October 2008 (CB 31). The reason provided was that the applicant did not satisfy the requirements of cl.572.222 of sch.2 to the Migration Regulations 1994 (Cth) (“the Regulations”). In essence, this was because there was “no evidence” before the Minister’s delegate that the applicant was enrolled in an acceptable course of study. (See in particular CB 33).
On 28 November 2008 the applicant applied for review of this decision by the Migration Review Tribunal (CB 36 to CB 42).
On 18 December 2008 the Tribunal wrote to the applicant by letter, (which it would appear from the evidence before the Court was sent by registered post) pursuant to s.359(2) and s.359A of the Act (CB 44 to CB 45).
This letter did a number of things:
(a)It invited the applicant to comment on information available to the Tribunal that he had not given to the Minister a certificate of enrolment relating to his course of study in what is described as an acceptable course.
(b)It invited the applicant to provide additional information, being in the form of a certificate of enrolment in such a course.
(c)Told the applicant that his response, that is, the comments and the additional information, should be received at the Tribunal by 28 January 2009.
(d)The letter advised that if he was unable to provide comments and information by that time he could ask for an extension of time. But the letter also put the applicant on notice that such a request for an extension of time must be received by the Tribunal by 28 January 2009.
(e)Importantly, the letter also advised the applicant that the consequence of not receiving comments or additional information within the period “allowed” or, as the Tribunal said, as “extended,” that in those circumstances the Tribunal may make a decision without taking any further action to obtain the applicant’s views and that the applicant may lose his entitlement to a hearing before the Tribunal.
Request for an Extension of Time
The applicant did write to the Tribunal seeking an extension of time.
A copy of this letter is set out at CB 48. It would appear from date stamps placed on this document that this was received by the Tribunal on 30 January 2009. The applicant explained that he had been unable to obtain “the formal documents in time” and the applicant sought an extension of time within which to respond (CB 48).
A Tribunal officer wrote to the applicant by letter dated 2 February 2009 acknowledging the applicant’s letter (CB 49). The letter advised that the applicant’s letter seeking an extension had not been received by the “due date of 28 January 2009”. The letter said:
The Tribunal has decided not to grant an extension of time.
The Tribunal will now proceed to make a decision in this case on the information currently before it.
Tribunal Decision
On 2 February 2009 the Tribunal made its decision to refuse the application (CB 52 to CB 58).
In its decision record the Tribunal identified the relevant issue as being whether the applicant met the requirements of cl.572.222 in the relevant schedule to the Regulations (CB 56).
The Tribunal made a number of relevant findings in its decision:
1)It had written to the applicant pursuant to s.359(2) and s.359A;
2)The date by which comments were to be provided by the applicant was 28 January 2009;
3)The applicant had applied for an extension of time after this period had passed;
4)The Tribunal had informed the applicant that the extension had not been granted;
5)The applicant had not provided comments or information within the relevant time. That in these circumstances s.359C applied, that is, that the Tribunal may proceed to a decision. Pursuant to s.360(3) of the Act the applicant was not entitled to appear at a hearing. The Tribunal noted the effect of s.363A of the Act, that is, the Tribunal had no discretion to allow the applicant to appear at a hearing.
6)The Tribunal reasoned that the applicant had not provided the relevant certificate of enrolment; therefore it could not be satisfied that the applicant met the relevant criterion.
7)As there was “no evidence” before it that he met any other criterion for a student visa, it affirmed the delegate’s decision to refuse a student visa to the applicant.
Application before the Court
In his application to this Court the applicant has not pleaded what could be described as proper grounds in his application. In a statement attached to his application headed: “Grounds of Application”, which, with respect to the applicant, look to be in the nature of submissions, the applicant makes the following points. These appear to some extent to mirror the matters that he has raised in his affidavit that accompanied his application to this Court:
1)The applicant appears to take issue with the Tribunal stating that his application for an extension was received after the relevant time had passed.
2)
That he sent the application, that is, the application for an extension of time, “through the post office” on 23 January 2009.
I understand the applicant to submit that this should have been sufficient time for the post office to process the letter and deliver his letter to the Tribunal within time.
3)Further, that the Tribunal had not advised him of any “extra” internal processing time within the Tribunal. That in the applicant’s belief, and on the basis of what he had set out, the date for providing the application for an extension should have been 30 January 2009, not 28 January 2009. Although I note in the application the applicant has transposed these two dates. I give the applicant the benefit and read his statement in the most advantageous way to him.
In his submission the applicant seeks to explain his inability to obtain the necessary certificate of enrolment and outlines difficulties that he said he encountered in early December 2008 when he sought to enrol in an “acceptable course”. That “the application for this enrolment could not be done in time due to the leave of some important staff.”
He states that at that time he was unsure whether to pursue another education provider.
The applicant also submitted that by 22 January 2009 he had still not received a response from the education provider. He then decided to apply for an extension to extend the time by which he could respond to the Tribunal. He claims he wrote the letter, and I understood him to say that he posted this letter, on 23 January. This letter was “supposed” to arrive at the Tribunal by at least 27 or 28 January, that is, within time.
In relation to the Tribunal decision the applicant takes issue with the following:
1)The Tribunal’s failure to grant an extension, which the applicant saw was done as a result of the Tribunal’s statement that the request for an extension was “a delayed document.”
2)He subsequently contacted a new education provider but was unable to provide the “formal document”, that is, as I understood it to be, the enrolment document, within the prescribed period.
3)
Notwithstanding that, what he described as, the “evidences” were not provided, it was in fact “true” that his application for an extension was sent before the deadline set by the Tribunal.
The Tribunal therefore should have considered this application as a “valid” response to the Tribunal’s letter.
4)He also claims that supporting documentation regarding a new education provider had been prepared.
Before the Court
The applicant was unrepresented before the Court today. He was assisted by an interpreter in the Mandarin language. Although some way during the course of the hearing I understood that the applicant’s command of English was good. Ms Warner-Knight appeared for the first respondent.
Before the Court the applicant pressed the matters that were raised in the document that I am describing as his written submissions.
The applicant repeated that the Tribunal’s decision was unreasonable because he had in fact posted his letter to it before the time limit had expired. The applicant referred the Court to CB 46, which appears to be a photocopy of part of the envelope within which I understand the applicant’s letter was dispatched to the Tribunal. The applicant made reference to date stamps on the face of this document, namely, “27” and “29 January”. The applicant told the Court that the Tribunal did not make the right decision because he responded to it as instructed by the Tribunal. He confirmed for the Court that he had made some attempt to read relevant “Regulations” and had read the Minister’s submissions.
Consideration
The Minister’s position as expressed in both written submissions and orally today by Ms Warner-Knight is that the application to the Court does not identify jurisdictional error in the Tribunal’s decision.
The Minister describes the applicant’s claim that he allowed enough time in posting his “s.359A response”, and by that I understand this to be the application for an extension of time, as being misconceived.
I must note that the applicant was provided with the opportunity at the first Court date of this matter before this Court, which was on
25 March 2009, to file an amended application pleading grounds with particulars, and to provide evidence in support of his claim. Up until today the applicant had not taken any such action. So what the Court is left with is, in essence, the submissions made by the applicant both in writing, and to the extent that they were mirrored, orally today.
Even taking those submissions at their face value, I can only say that I agree with the Minister that the applicant’s complaint is unfortunately (for him) misconceived.
Section 359B of the Act provides that if the Tribunal gives an invitation under s.359, or s.359A, then if the invitation is to give information other than at an interview, which is the circumstance in the case before the Court, the comments or responses must be given within the period specified in the invitation, or the prescribed period.
Regulation 4.17(4) of the Regulations provides, relevantly, that the prescribed period for the purposes of s.359B(2), that is, for the giving of information or comments, starts when the person receives the invitation, and ends at the end of 28 days thereafter.
The Tribunal wrote to the applicant pursuant to s.359A, and s.359, by letter dated 18 December 2008 (CB 44). It was addressed to the applicant at his home address, which was the address provided by the applicant for the purpose of receiving correspondence. I say that with reference to what is set out (at CB 40), being that relevant part of the applicant’s application for review to the Tribunal. The evidence before the Court is that this letter was sent by registered post. There is no evidence provided by the applicant, or otherwise, to show that it was in any event not sent on that date.
The letter was sent by one of the methods set out in s.379A, and I say this with reference to s.359A(2)(a) and 359(3)(a), and in particular with reference to s.379A(4) was sent by prepaid post to the last address for service.
Pursuant to s.379C(4)(a) the person, that is, in effect, the recipient and in this case the applicant, is taken to have received the document seven working days after the date of the document. I agree with Ms Warner-Knight’s calculations noting that in the current case the date of this letter is 18 December 2008. Seven “working days after” ends on 31 December 2008, taking into account Christmas holidays and the weekend. The 28-day prescribed period ends therefore on 28 January 2009. I note for the applicant’s benefit that this latter period is not restricted to working days only. I cannot see error on the part of the Tribunal in the despatch of the letter and, relevantly, in its calculation of 28 January 2009 as being the relevant date.
Bearing in mind the thrust of the applicant’s complaint before the Court today, the relevant statutory and regulatory scheme does not, as the Minister in my view correctly submits, rely on the date of posting of the response, but on the date on which the response is received by the Tribunal.
Section 379F provides for the giving of documents to the Tribunal. Regulation 4.17(6) provides that a response pursuant to s.359B(2):
“Is taken to be given to the Tribunal when a registry of the Tribunal receives the response.”
In the current case the evidence before the Court is that the applicant’s response, (the request for the extension of time) was received by the registry of the Tribunal on 30 January 2009. I say this in particular with reference to the two Tribunal date stamps that appear on the relevant document reproduced at CB 48.
I should also note, and in particular given that the applicant took me to what appears at CB 46 and CB 47, that these appear to be reproductions of the front and the back of the envelope in which, was the envelope in which the applicant’s response was enclosed. This can be inferred given the relevant dates and the address of the applicant. The front of this document bears two date stamps which I understand to be date stamps, not placed by the Tribunal, but by the postal service and which appear to be 27 January '09 and 29 January '09 (CB 46). [“SWLF 27 Jan 09” and “SWLF 29 Jan 09” – CB 46]. [There was no dispute by the applicant that this was the case].
I draw the inference from this, an inference which is also consistent with the Tribunal date stamps appearing on the document (at CB 48), that at least as at sometime on 29 January 2009 the applicant’s letter requesting the extension was not at the Tribunal's registry, therefore it was not at the Tribunal’s registry on or at 28 January 2009. This, of course, being the last date by which the response should have been given to the Tribunal’s registry.
In all the circumstances therefore, as I explained to the applicant today that even if there had been some delay in the post office, and I must say that there has been no evidence provided to the Court that there was such delay, but in any event, even if the applicant’s submissions were to be accepted and some delay had occurred, that this would still not assist the applicant. What the applicant cannot overcome is that the state of the evidence before the Court reveals that his letter was received by the Tribunal after the date of the prescribed period had expired. In these circumstances therefore the Tribunal was entitled to proceed in the way that it did.
The fact that the applicant now says that he has the relevant documents relating to a new education provider also do not assist in showing jurisdictional error on the part of the Tribunal. As submitted by the Minister, the critical issue, of course, is whether these documents had been provided by the date prescribed for doing so.
Given that the applicant was unrepresented before the Court, I did raise with Ms Warner-Knight whether any error could be discerned in the way the Tribunal dealt with the applicant’s response, albeit the response that was received out of time.
The applicant applied for an extension of time. The extension was received by the Tribunal after the time for the making of such applications. How the Tribunal appears to have dealt with the application can be discerned from the following.
A Tribunal officer wrote to the applicant by letter dated 2 February 2009 (CB 49). The letter reads:
“Request for extension of period to provide information.
The Tribunal acknowledges your correspondence received at the Tribunal on 30 January 2009. The Tribunal advises that your request for an extension of time to respond to the Tribunal's letter of 18 December 2008 was not received by the due date of 28 January 2009. The Tribunal has decided not to grant an extension of time. The Tribunal will now proceed to make a decision in this case on the information currently before it.”
On its face, this may, or could, give rise to an issue as to whether the Tribunal purported to exercise its discretion to extend the time even though the application for an extension was received out of time. If it did so, then whether it acted reasonably and had not acted capriciously or arbitrarily. The words that, initially in my view, may cause concern from the Tribunal’s letter are the words:
“The Tribunal has decided not to grant an extension of time.”
This may give rise to an inference that the Tribunal sought to consider the applicant’s request and as to whether the discretion should be exercised, even though the time for the making of such requests had passed.
Section 359B(4) of the Act relevantly provides that the Tribunal “may extend” the period within which the applicant may respond.
Relevantly, the time within which an applicant is to respond is within the prescribed period as notified to the applicant. I note that in its decision record the Tribunal stated:
The Tribunal wrote to the applicant on 2 February 2009 and informed him that his request for an extension of time was not received by the Tribunal by 28 January 2009 and the Tribunal had decided not to grant an extension of time. (CB 55.10 [22])
In M v Minister for Immigration & Multicultural Affairs [2006] FCA 1247, per Tracey J, (“M v Minister”) the Court was presented with circumstances where a Tribunal wrote to an applicant purportedly granting an extension of time even though it was granted after the original time allowed had passed.
At [52] his Honour said:
“In any event, it may be doubted that there was scope for the Tribunal, even if it had been minded to do so, to extend time to comply with the request made on 28 February 2005, after the period stipulated for compliance in that letter had passed. Section 359B(4) of the Act is cast in the present tense ('If a person is to respond ...’ ‘and 'the response is to be made ...’). This, as the Full Court noted in Sun ... suggests that any application for an enlargement of time must be made while the time stipulated in the original letter of request is still running. The Full Court did not find it necessary to determine the question ... but, in Usman v Minister for Immigration & Multicultural Affairs [2005] FMCA 966 at [44], Pascoe CFM held that the power granted by
s 359B(4) of the Act could only be exercised within the period allowed when the original request was made. Had it been necessary to do so I would have held that the Tribunal could not have enlarged time pursuant to s 359B(4) of the Act after, at the latest, 6 April 2005.” [This case that is the relevant date by which the applicant could have made this request].
In Usman & Anor v Minister for Immigration & Immigration Affair [2005] FMCA 966 at [44], per Pascoe CFM (“Usman”) the Court stated as follows:
“The term “if a person is to respond” indicates that the period has not yet expired”
Further, with reference to what appears in s.359B(4), his Honour continues -
“and so the Tribunal has power to extend time whilst the person is within the time period allowed for response to the original request. Once that period has passed the precondition is no longer available. The person is no longer invited to respond “within a prescribed period”. The prescribed period had lapsed and with it the power to extend the time had lapsed.”
On this reasoning therefore, which I respectfully follow, the Tribunal had no power to consider whether or not an extension should be granted once the period allowed for the response had elapsed, that is, after 28 January 2009.
What could be said to be the Tribunal’s purported attempt to exercise that power, if indeed that is what it sought to do, was in any event, of no effect. In the circumstances I cannot see that if that is what the Tribunal did, then that would reveal jurisdictional error on its part.
As was submitted by Ms Warner-Knight the purported exercise of a discretionary power to refuse an extension of time in circumstances where no extension of time in any event could be granted has no consequence on the conduct of the review. Drawing on the authorities that I have cited therefore, the applicant’s response was not given to the Tribunal by the due date and, as follows, the applicant therefore no longer had an entitlement to appear before the Tribunal. The Tribunal’s subsequent reasoning therefore reveals no error.
In my view, notwithstanding the above ([34]-[35]) the Tribunal’s decision record and the relevant material may be read fairly in a way consistent with the proposition that the Tribunal has no power to extend the time for the making of the response when such an application is received after the due date.
I accept submissions from Ms Warner-Knight that a fair reading of the Tribunal’s letter to the applicant (the letter reproduced at CB 49, see [34] above), is that because the application for an extension was not received within time, that is, the due date, the Tribunal in those circumstances “decided” not to grant any extension of time. That is, that it could not grant the extension. When this letter is read with what is set out in the Tribunal’s decision record, I am satisfied that this is a fair reading. This course of action was open to the Tribunal, and could not be described as being arbitrary or unreasonable.
In its decision record the Tribunal plainly noted the applicant’s reasons for seeking an extension of time (see [21] at CB 55). When read fairly, the Tribunal’s reasoning is that, given that the applicant was on notice of the date by which he had to respond, and I should note that this is a period which is otherwise a reasonable period, and given that he did not respond within that period by making his application for an extension of time within that period of time, then in those circumstances an extension of time was not available and was refused.
But whichever reading is given to the Tribunal’s decision, that is, the fair reading to which I have just referred or to a reading that may suggest that the Tribunal did purport to exercise the power, it is in my view the case that neither situation reveals error on the part of the Tribunal.
If the Tribunal purported to exercise a power it did not have, that is, to exercise the discretion, then, as I have already said, it is of no consequence in the circumstances of this case.
On my preferred view, that is on a fair reading of its decision record and letter the Tribunal did not purport to exercise the discretion, but advised the applicant that an extension of time was not available to him. In these circumstances the Tribunal was empowered to proceed to make a decision without taking further action to enable the applicant to appear. With reference to M v Minister and see also Minister for Immigration & Multicultural & Indigenous AffairsSun [2005] FCAFC 201 (the Tribunal’s decision record see at [25] at CB 56).
Conclusion
Ultimately, given that no extension of time had been granted, the applicant had to respond within the time as originally notified. He did not do so. The Tribunal was therefore correct to proceed as it did.
In the absence of the relevant evidence of the enrolment with an appropriate education provider, the Tribunal could not be satisfied that the relevant and necessary criterion for the grant of the visa could be met. In these circumstances the visa could not be granted.
I cannot discern jurisdictional error in the Tribunal’s decision. As I explained to the applicant for him to succeed before the Court today the Court would have to find jurisdictional error. As I cannot find jurisdictional error, the application before the Court is therefore dismissed.
Costs
I also have before me an application that the applicant pay the Minister’s costs set in the amount of $5,000.00. First of all, it is appropriate that an order for costs be made in this matter. As best as I can relate the applicant’s submissions on this issue, I understood the applicant to say that he did not know that the Tribunal had received his letter out of time, and that in that sense he did not see himself as being at fault in what had occurred. As he described it, he did not know that he had “broken the rule”. Putting to one side that this may be, in one sense construed as a further attempt for the applicant to press the application before this Court, an application with which I have already dealt, but if put squarely as a submission as to why this Court should not make an order as to costs, then in my view, such a submission does not assist the applicant. As I said to the applicant, it is his right to come to this Court but, as with the exercise of rights, there are consequences. In this case I cannot see that there is anything before the Court that would argue against the making of a costs order in the normal course of events.
As to the amount, the amount must be reasonable in all the circumstances. I note that the amount sought is generally consistent with the amount set out in the relevant schedule to the Rules of this Court for matters of this type. But beyond that, I note that this is a matter which has come to final hearing. While I note that the applicant said that he did make attempts to obtain legal advice, it is the case that he has come to this Court to a final hearing, and with ultimately a complaint that in the face of clear law had little, if any, prospect of success.
I have regard to the work done by the Minister’s legal representatives.
I note the preparation of multiple copies of the Court Book, the filing and serving of a Response and written submissions, appearances at Court, and the perusal of relevant law, although not specifically raised by the applicant’s application, as has been demonstrated there was an issue beyond what was raised by the application, that the Minister’s representatives properly would have needed to have considered in responding to the application. I am satisfied that the amount sought is a reasonable amount in all the circumstances. I will make the order in that amount.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: S.Polley
Date: 15 May 2009
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