ZHANG v Minister for Immigration

[2017] FCCA 3052

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZHANG v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3052

Catchwords:
MIGRATION – Child visa – refusal – review of Migration Review Tribunal decision – application for extension of time to bring proceeding.

Legislation:

Migration Act 1958, ss.338, 347, 359A, 379A, 379C, 474, 477

Migration Regulations 1994, reg.4.10

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: YUFANG ZHANG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3615 of 2014

Judgment of: Judge Cameron

Hearing date: 24 October 2017

Date of Last Submission: 26 October 2017

Delivered at: Sydney

Delivered on: 12 December 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms S. Sangha of Mills Oakley

ORDERS

1. The applicant’s application for an extension of time within which to bring this proceeding be dismissed. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 3615 of 2014

YUFANG ZHANG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of China who arrived in Australia on 14 September 2007. On 2 December 2013 she lodged an application for a Child (Residence) (Class BT) (Subclass 802) visa with what is now the Department of Immigration and Border Protection on the basis that she was a dependent child of the sponsor, her mother. On 26 August 2014 the applicant’s application was refused by a delegate of the first respondent (“Minister”). 

2. On 24 September 2014 the applicant applied to the Migration Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of the delegate’s decision.  The Tribunal found that it did not have jurisdiction to hear the matter because the application for review had not been made within the prescribed period.

3. On 23 December 2014 the applicant applied to this Court for judicial review of the Tribunal’s decision. That application was filed outside the limitation period prescribed by s.477 of the Migration Act 1958 (“Act”) and so she has applied for an extension of that limitation period.

4. For the reasons which follow, the application for an extension of time within which to bring this proceeding will be dismissed.

APPLICATION FOR AN EXTENSION OF TIME

1. Section 477 of the Act provides the time limit which applies to proceedings for judicial review of Tribunal decisions in respect of which this Court has jurisdiction. At the time the applicant commenced this proceeding, it relevantly provided:

   477 Time limits on applications to the Federal Circuit Court

   (1) An application to the Federal Circuit 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 35 days of the date of the migration decision.

   (2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

   (a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

   (3)     In this section:

   date of the migration decision means:

   …

   (b) in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal—the date of the written statement under subsection 368(1) or 430(1); …

2. The Tribunal’s decision was dated 13 November 2014 and accordingly, the applicant was required to file her application with the Court on or before 18 December 2014. As the application was not filed until 23 December 2014, it was filed outside the time limit prescribed under s.477(1) of the Act.

Application in writing citing reasons

1. The consequence of the application having been filed late is that the Court must consider the two questions posed by s.477(2). The first of these is whether an application has been made to the Court for an extension of time. The application commencing this proceeding contained an application for an extension of time and set out the basis on which the applicant said that an extension of time would be in the interests of the administration of justice. The initial criteria for the granting of an extension of time have therefore been satisfied.

Interests of the administration of justice

1. The second question posed by s.477(2) is whether it is in the interests of the administration of justice to extend the time. In the circumstances of this case, that question will be determined by whether the applicant has provided a satisfactory explanation for her delay in commencing the proceeding and whether the allegations made in the substantive application for judicial review have sufficient merit that the Court should consider them at a trial.

Satisfactory explanation for delay

1. In her application commencing this proceeding the applicant stated as follows:

   1.The MRT has taken them more than a month to refund me, I am waiting for the fund to lodge the review application.

   2.I am a full time student and my mother is on centrelink’s special benefit, I don’t have money to lodge the appeal.

2. In her address to the Court the applicant said that the late lodgement of her application commencing this proceeding arose out of her lack of funds.  Noting that, it seems, no filing fee was paid when the application was filed, the significance of a lack of funds is far from clear.  However, as the applicant was not cross-examined on her affidavit or required to give evidence on this point, I am willing to accept for present purposes that financial difficulties did delay the filing of the application commencing this proceeding.

3. Consequently, I conclude that the applicant has demonstrated a satisfactory explanation for the delay in commencing the proceeding.

Merits of substantive application

1. In relation to the question of the merits of the substantive application, it should be noted that in proceedings for judicial review of a Tribunal decision, the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the relevant Tribunal decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, before the Court would find it to be in the interests of the administration of justice to extend the time within which to bring a proceeding, it is necessary that an applicant demonstrate that his or her case has sufficient merit that the Court should consider it at a trial. I have concluded that the present applicant has not done that.

Background facts

1. Relevant background facts were summarised by the Minister in his written submissions in the following terms which I adopt:

   10.On 26 August 2014, the delegate made a decision refusing to grant the Child (Residence) (Class BT) (Subclass 802) visa. The delegate found that the applicant’s chosen timeframe for completion of her Certificate Ill in Children’s Services did not amount to full time study and concluded that the applicant had not been undertaking a full-time course of study at an educational institution leading to the award of a processional, trade or vocational qualification as required by cl 802.214(1)(c) and cl 802.221(2)(b) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

   11.The applicant was notified of the delegate’s decision by an email sent to her migration agent at the nominated email address on 26 August 2014.

   …

   13.On 24 September 2014, the applicant lodged an online application to the Tribunal for review of the delegate’s decision. She appointed the same registered migration agent to assist her in connection with her review application. The migration agent listed his postal address and email address in the application for review.

   …

   15.On 13 October 2014, the Tribunal sent the applicant a letter through her migration agent, to the postal address nominated in the application for review, inviting her to comment on the validity of her application for review given that it appeared to have been lodged outside the time limit of 21 days from the date the applicant was deemed to have been notified of the delegate’s decision. The Tribunal invited a response by 5 November 2014. The Tribunal did not receive a response.

   …

   17.On 13 November 2014, the Tribunal made a decision and found it did not have jurisdiction as the application for review was not lodged within the prescribed time period. (References omitted)

2. The Tribunal’s findings and reasons were also summarised by the Minister in his written submissions as follows:

   20.Pursuant to s 347(1)(b) of the Act and reg 4.10 of the Regulations, the Tribunal … found that an application for review to it must be made within 21 days after the applicant was notified of the delegate's decision. The Tribunal found that the material before it indicated that the applicant was notified of the decision by a letter dated 26 August 2014 and dispatched by email. The delegate’s decision was sent to the applicant’s authorised recipient by email dated 26 August 2014.  …

   21.The Tribunal noted that the applicant’s migration agent sent an email to the Department on 28 August 2014 referring to the notification letter and decision record and complaining that he did not agree with the decision and would file an official complaint against the delegate.  The Tribunal was satisfied that the applicant was notified of the decision and that the applicant, through her migration agent, received the decision. The Tribunal also expressly noted the events described in paragraph 15 above.

   22.… the Tribunal found that the applicant was … taken to have been notified of the delegate's decision at the end of the date on which the document was transmitted (namely, on 26 August 2014) pursuant to s 494C(5) of the Act. Accordingly, the prescribed period within which the review application could be made ended on 16 September 2014. As the application to the Tribunal was not made until 24 September 2014, the Tribunal correctly concluded that it had no jurisdiction to review the matter. The Tribunal had no discretion to waive this requirement. (References omitted)

   Although expressed in somewhat argumentative terms, I adopt that summary.

Grounds of judicial review application

1. In her application commencing this proceeding the applicant alleged:

   1.The DIBP visa had looked at the wrong school and wrong course as evidence to reject my claim being a full time student.

   2.MRT asked my migration agent to sign and accept electronic communication after sening [sic] a surface mail letter to my migration agent, the letter was lost by the post office. I did not have a chance to respond to the MRT. And it’s no fault of mine (us).

2. Neither of the grounds advanced by the applicant, which were supported to some extent by her address to the Court, dealt with the basis for the Tribunal’s decision, which was that it did not have jurisdiction in her matter because her application for review of the delegate’s decision had been lodged late. Indeed, the first ground is concerned with the delegate’s decision, in respect of which this Court has no jurisdiction. The second ground referred to the Tribunal’s letter of 13 October 2014 pursuant to s.359A(1) inviting the applicant to comment on the apparent fact that her review application had been filed out of time. The applicant complained that that letter had been posted rather than emailed, as a result of which it was misplaced until it was too late for a response to it to be made. However, the address to which the letter was sent had been supplied in the application for Tribunal review. Consequently, by reason of ss.359A(2)(a) and 379A(4) of the Act, there is no reason to suppose that any error attached to the Tribunal despatching the letter as it did. At the time those provisions stated:

   359A  Information and invitation given in writing by Tribunal

   …

   (2)  The information and invitation must be given to the applicant:

   (a)  except where paragraph (b) applies—by one of the methods specified in section 379A; …

   …

   379A  Methods by which Tribunal gives documents to a person other than the Secretary

   …

   Dispatch by prepaid post or by other prepaid means

   (4)  Another method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, dating the document, and then dispatching it:

   (a)  within 3 working days (in the place of dispatch) of the date of the document; and

   (b)  by prepaid post or by other prepaid means; and

   (c)  to:

   (i)      the last address for service provided to the Tribunal by the recipient in connection with the review; or

   (ii)     the last residential or business address provided to the Tribunal by the recipient in connection with the review; or

   (iii)  if the recipient is a minor—the last address for a carer of the minor that is known by the member, Registrar, Deputy Registrar or other officer.

   The fact that the applicant may not have received the Tribunal’s letter in good time was of no consequence given the deeming effect of s.379C(4):

   379C  When a person other than the Secretary is taken to have received a document from the Tribunal

   …

   Dispatch by prepaid post or by other prepaid means

   (4)  If the Tribunal gives a document to a person by the method in subsection 379A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:

   (a)if the document was dispatched from a place in Australia to an address in Australia —7 working days (in the place of that address) after the date of the document; or

   (b) in any other case—21 days after the date of the document.

3. Neither of the allegations made in the initiating application discloses an arguable case of jurisdictional error on the part of the Tribunal.

4. Turning briefly to the issue which is in fact presented by the Tribunal’s decision, I note that the delegate’s decision was an “MRT-reviewable decision” by virtue of s.338(2) of the Act. Section 347(1) of the Act provided that applications to review s.338(2) MRT-reviewable decisions were to be lodged with the Tribunal no later than twenty-eight days after the delegate’s decision was notified to the applicant in question, unless a regulation made under s.347(5) prescribed a different time. In this case a period of twenty-one days was so prescribed by reg.4.10(1)(a) of the Migration Regulations 1994.

5. The Court Book, which was Exhibit A, satisfies me that the applicant’s migration agent received a copy of the delegate’s decision by email on 26 August 2014 and indeed that he responded the next day.  The applicant had twenty-one days from 26 August 2014 to file with the Tribunal but she did not do so until 24 September 2014.  It seems clear enough that the Tribunal was right to conclude that it did not have jurisdiction. 

6. It does not seem to me that the applicant has any real prospect of proving otherwise or that her case has sufficient merit in any other respect such that the Court should consider it at a trial. 

CONCLUSION

1. Although I have been willing to find that the applicant has provided a satisfactory explanation for her delay in bringing this proceeding, as I have also found that her application for judicial review has insufficient merit to justify its consideration at a trial, I conclude that it would not be in the interests of the administration of justice for time to be extended to permit the filing of this matter.

2. Consequently, the application to do so will be dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  12 December 2017