Zhu v Minister for Immigration, Multicultural Affairs & Citizenship

[2013] FCCA 1333

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZHU v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP & ANOR [2013] FCCA 1333

Catchwords:
MIGRATION – Review of decision by Migration Review Tribunal – whether applicant validly notified of decision of the Delegate of the Department of Immigration and Citizenship – whether applicant’s application for review of decision of Delegate of the Department of Immigration and Citizenship lodged within prescribed time – applicant validly notified – whether Migration Review Tribunal had jurisdiction to review the decision of Delegate of the Department of Immigration and Citizenship – no jurisdictional error.

Legislation:
Migration Act 1958 (Cth), ss.347(1)(b), 494C
Migration Regulations 1994,  r.4.10
Federal Circuit Court Rules, r.44.12

Applicant: MINQI ZHU

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: MIGRATIONREVIEW TRIBUNAL

File Number: SYG 1578 of 2013

Judgment of: Judge Emmett

Hearing date: 4 September 2013

Date of Last Submission: 4 September 2013

Delivered at: Sydney

Delivered on: 4 September 2013

REPRESENTATION

The Applicant appeared in person with the assistance of an interpreter

Solicitors for the Respondents: Sparke Helmore

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1578 of 2013

MINQI ZHU

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The first respondent seeks an order that the proceeding before this court, commenced by way of application filed on 11 July 2013, be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules, on the basis that the application has not raised an arguable case for the relief sought. 

2. In support of that application, the solicitor for the first respondent, Ms Lal, read the affidavit of the applicant, affirmed 14 June 2013, which annexed a decision of the Migration Review Tribunal (“the MRT”), dated 14 June 2013.

3. I explained the nature of the first respondent’s application to the applicant and that if the court was not persuaded that his application for judicial review had raised an arguable case, his application may be dismissed forthwith.  I invited the applicant to say whatever he wished in support of his application for judicial review. 

4. The applicant responded that his application had been completed by a friend, that he was studying and that he had relied on his migration agent to get him a new student visa. The applicant also stated that his migration agent had cheated him and that his problems had been caused by his migration agent.

5. Whilst that information was not given as sworn evidence by the applicant, I accept that it was the substance of evidence that would have been given by the applicant if under oath.  In those circumstances, I asked Ms Lal if there was any evidence that the she wished to tender in response.  Ms Lal tendered the bundle of documents identified as ‘Court Book’, filed on 16 August 2013.  Those documents collectively were marked Exhibit 1R.

6. Contained in Exhibit 1R is a copy of the applicant’s original application to the Department of Immigration and Citizenship (“the Department”) for a Student (Temporary) visa.  That application does not identify any migration agent as acting for the applicant.  Similarly, the applicant’s application for review by the MRT of the Department’s refusal to grant his visa application, also does not identify any migration agent as acting for the applicant.  In the circumstances I am not satisfied that the applicant had a migration agent who was representing him either before the Department or the MRT.

7. The decision of the MRT, dated 14 June 2013, found that the MRT had no jurisdiction to consider the applicant’s review application on the basis that the application for review had been made outside the statutory time after the applicant was notified of the Department’s decision.

8. The MRT noted that it wrote to the applicant seeking his comments in light of the fact that the applicant’s review application was lodged outside the required time.  The MRT noted the applicant’s response that he had never received notification of the refusal decision from the Department. 

9. The MRT then noted that material before it indicated that the applicant had been notified of the Department’s decision by letter, dated 8 June 2011, and dispatched by registered post. The MRT noted that the Department’s notification letter was addressed to the applicant at the address provided by the applicant with his student visa application. The address was also his last notified address at the time of the refusal decision and the address was the same as the address specified in the applicant’s recent submission to the MRT. 

10. The MRT noted that the Department’s notification letter was sent by registered post and dispatched prior to 10 June 2011. That letter was returned to the Department unclaimed on 20 July 2011. The MRT also noted entries on the Department’s systems indicating that a previous letter sent to the same address requesting information, had also been returned unclaimed. Further entries detailed other unsuccessful attempts to contact the applicant at the email address and telephone number.

11. The MRT was satisfied, on the basis of the material before it, that the applicant was notified of the decision in accordance with the statutory requirements. The consequence of the statutory requirements is that the notification has effect whether or not the applicant actually physically received it. Based on those findings, the MRT further found that, pursuant to s. 494C of the Act, the applicant was taken to have been notified of the Department’s decision on 20 June 2011 and that the prescribed period within which the applicant’s review application could be made ended on 11 July 2011.

12. The MRT noted that the application for review was not lodged until 16 April 2013, well after the applicant was taken to have been notified of the Department’s decision. In the circumstances the MRT concluded that the application for review was not made in accordance with the statutory regime and that the MRT therefore had no jurisdiction to consider the applicant’s review application.

13. There is no error apparent on the face of the MRT’s decision record and none has been further identified by the applicant either in his written application or in his oral submissions today. 

14. In the circumstances, I am satisfied that the application, filed on 11 July 2013, has not raised an arguable case for the relief claimed and that the applicant’s application should be dismissed.

15. The applicant sought an adjournment in order to get legal advice. However, in light of the matters referred to above, there would be no utility in granting such an adjournment and accordingly that application was refused. 

16. Accordingly, the proceeding before this court, commenced by way of application filed on 11 July 2013, should be dismissed with costs pursuant to r.44.12 of the Federal Circuit Court Rules on the basis that the applicant has not demonstrated an arguable case for the relief sought.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:    

Date:  12 September 2013