Yuan v Minister for Immigration
[2013] FCCA 988
•30 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| YUAN v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 988 |
| Catchwords: MIGRATION – Application for review of decision of Migration Review Tribunal – no arguable case for relief raised – application dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a) |
| Hao v Minister for Immigration [2008] FMCA 1059 |
| Applicant: | BO YUAN |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1490 of 2013 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 30 July 2013 |
| Date of Last Submission: | 30 July 2013 |
| Delivered at: | Sydney |
| Delivered on: | 30 July 2013 |
REPRESENTATION
| The Applicant: | The Applicant appeared in person with the assistance of a Mandarin interpreter |
| Solicitor for the First Respondent: | A. Wong of DLA Piper |
| The Second Respondent: | The Second Respondent filed a submitting notice of appearance |
ORDERS
The name of the first respondent be amended to “Minister for Immigration, Multicultural Affairs and Citizenship”.
The application is set down for an immediate show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth).
The application filed 2 July 2013 is dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application fixed in the amount of $1,331.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1490 of 2013
| BO YUAN |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 2 July 2013 by the applicant, Bo Yuan, seeking review of a decision of the Migration Review Tribunal (the “Tribunal”), dated 14 June 2013, where the Tribunal found that it did not have jurisdiction to hear the applicant’s application for review of the decision of a delegate of the Minister for Immigration, Multicultural Affairs and Citizenship (the “Minister”) to refuse to grant the applicant a Student (Temporary) (Class TU) visa. The Tribunal’s basis for its decision that it did not have jurisdiction was that the application for review in the Tribunal was filed out of time and, therefore, not made in accordance with the relevant legislation (which will be addressed below) and the Tribunal had no jurisdiction in the matter.
The Application filed on 2 July 2013 attached a document that stated:
Attachment
Orders sought by Applicant
1. I disagree with MRT’s decision. They did not consider that I am totally innocent with delaying review application with MRT. I left my email address in my application form with DIAC and never received their refusal notice.
2. I personally approached DIAC twice to enquire my visa application progress, and I was told to wait. Finally when I call DIAC customer service and I was told that my visa application was refused long time ago.
3. I never received DIAC refusal notice either via email or correspondence as I have provided them my correct contact details. I loose the chance for MRT review which lead to the failure of my review application. I feel it is very unfair for me, MRT did not give my explanation a well consideration. I hope the court can provide me with the justice and fairness.
The Grounds of the Application are:
1. I am a genuine oversea student from P.R. China. I never breach the visa condition since I arrived in Australia.
2. I wish I could continue my further study in Australia. It is not fair for me to lose the chance for MRT review as DIAC has never informed me correctly with their decision.
3. I hope the court can investigate my review application as I never received the refusal notice from DIAC, I believe DIAC has made serious legal error in informing the client for notification.
The Minister’s representatives filed a response on 17 July 2013 that stated the following under “Grounds of opposition”:
1. The application filed on 2 July 2013 seeks judicial review of a decision of the Migration Review Tribunal (MRT) dated 14 June 2013. The MRT found that it did not have jurisdiction to review a decision of a delegate of the first respondent as the application to the MRT was not filed within the prescribed time limit.
2. The application pleads three grounds. The first respondent understands the applicant’s complaint to be that she did not receive notification of the delegate’s decision.
3. The first respondent contends that, as was found by the MRT, the applicant was notified of the delegate’s decision by email sent to the email address provided by the applicant to the delegate’s Department. The applicant was therefore deemed to have received the notification on the date it was sent, being 7 June 2012, and was required to lodge her application to the MRT by 28 June 2012. The application lodged on 14 February 2013 was filed out of time and the MRT did not have jurisdiction. The MRT did not have any discretion to accept the application in circumstances where it was filed out of time.
4. The first respondent accordingly opposes all orders sought by the application (which he understands to be relief in the form of constitutional writs) on the basis that no arguable case for the relief sought is raised.
Consideration
The matter was first set down for a First Court Date directions hearing on 30 July 2013. I indicated that I agreed with the Minister’s response that no arguable case for relief had been pleaded.
The Application, in effect, takes issue with the alleged failure of the Minister to notify the applicant of its decision refusing to grant her a Student visa on 7 June 2012. The applicant claims that she never received the email sent by the Minister attaching the refusal notice which led to her filing her application for review with the Tribunal out of time.
The Tribunal’s Decision Record states the following at [2] – [5]:
2. The review application was lodged with the Tribunal on 14 February 2013. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.
3. Pursuant to s.347(1)(b) of the [Migration Act 1958 (Cth)] and r.4.10 of the Migration Regulations 1994 an application for review of this decision had to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements.
4. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 7 June 2012 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
5. In response to the Tribunal’s invitation to comment on the validity of the application for review, the applicant stated, in a letter dated 1 June 2013, that she left the email address on her application and she never received the decision letter. She had gone to the Department twice and she did not know what to do and she never intended to overstay her visa.
6. The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 7 June 2012. Therefore the prescribed period within which the review application could be made ended on 28 June 2012. As the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.
In Hao v Minister for Immigration [2008] FMCA 1059 his Honour O’Dwyer FM (as he then was) discussed the legislative framework in a proceedings of a similar nature. At [7] – [15] of his Honour’s reasons it states:
LEGISLATIVE FRAMEWORK
7. Subsection 66(1) of the Act relevantly provides that, when the first respondent or his delegate refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.
8. Subregulation 2.16(3) of the Regulations relevantly provides that the first respondent or his delegate must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act.
9. Subsection 494B(5) of the Act states that:
Another method consists of the Minister transmitting the document:
(a) fax; or
(b) email; or
(c) other electronic means.
to the last fax number, email address or other electronic address, as the case may be, provided to the Minister by the recipient for the purposes of receiving documents.
10. Subsection 494C(1) states that:
If the minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of day on which the document is transmitted.
…
12. Section 347 of the Act relevantly requires that an application for review must be lodged with the Tribunal within the prescribed period.
13. Paragraph 4.10(1)(a) of the Regulations relevantly states that the period in which a review application must be given to the Tribunal:
… starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received.
14. Subsection 36(1) of the Acts Interpretation Act 1901 states that
Where in an act any period of time, dating from a given day, act, or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or of the day of such act or event.
15. Subsection 348(1) of the Act relevantly states that:
… if an application is properly made under section 347 for review of an MRT — reviewable decision, the Tribunal must review the decision.
His Honour then continued at [16] – [21]:
16. On reviewing the decision of the Tribunal there appears to be no error of law, yet alone any jurisdictional error.
17. The time limitation for the lodgement of reviews are mandatory and the deeming provision as to when time should run after notification is deemed to have been effected on the applicant was properly applied by the Tribunal.
18. Suffice to say, the notification of the delegate’s decision was properly effected by the method employed in this instance; that is by email to the authorised recipient and in accordance with the legislative framework set out above. The application for review to the Tribunal was clearly out of time and there is no discretion in the Tribunal to extend time or accept an application lodged out of time (see Murphy v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 657).
19. The Tribunal was correct in refusing to entertain the application for review because of a lack of jurisdiction. (See Tabet v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 446; Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99; Peng v Minister for Immigration and Multicultural Affairs (2000) 102 283; Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364).
20. The applicant alleged, as I understand his submission, that he was invited to file an amended application and proffered this as an explanation for delay. He also, in correspondence to the first respondent, advised that he believed he had 28 days in which to lodge his review application (as opposed to the actual 21 days allowed). He also provided medical certification to the first respondent indicating he was, at the time, suffering from depression and anxiety which had affected his capacity to study. He also indicated that he could not, at the time, afford the review application fee.
21. There was no evidence supportive of his assertion that he was invited to lodge an amended application. In any event, because of the mandatory nature of the time limitation, the matters raised by the applicant by way of explanation and in support of a more favourable consideration of his position, unfortunately do not assist him. Neither the Act nor the Regulations confer any power on the Tribunal to conduct a review unless that review application has been properly lodged with it. To be properly before the Tribunal, the applicant must have complied with the mandatory time limitation. Accordingly, the application filed on 27 February 2008 must be dismissed.
In the proceedings before his Honour O’Dwyer FM a notable difference is that before the delegate, the applicant in those proceedings had nominated an authorised recipient. However, the principles discussed by his Honour remain the same.
I have had the benefit of access to the Court Book (“CB”) prepared by the Minister. At page 2 of the CB under Question 21 the applicant has checked, in response to the question “Do you agree to the department communicating with you by fax, email or other electronic means?” the box adjacent to “Yes” and nominated her email address as [email]@hotmail.com (the original version of the email address has been redacted for the applicant’s privacy). At page 44 of the CB the words “SENT BY EMAIL: [email]@hotmail.com” appear beneath the date at the top of the page. This is an email notification from the Department of Immigration and Citizenship (as it then was) to the applicant notifying her of the delegate’s refusal to grant her a Student visa and attaching the delegate’s decision record. The email address is the same in both references.
Accordingly, I adopt the reasoning in Hao (supra) and find that the Application raises no arguable case for relief. Further, on a fair reading of the Tribunal’s Decision Record there is no jurisdictional error apparent. Consequently, the application should be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) with costs awarded to the first respondent.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 30 July 2013
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