Durrani v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 629 (20 May 2005)

Last Updated: 23 May 2005

FEDERAL COURT OF AUSTRALIA

Durrani v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 629

MIGRATION – Migration Review Tribunal holds that it has no jurisdiction because an application for review was lodged out of time – whether Tribunal erred - Migration Act 1958 (Cth) ss 347, 494D – Migration Regulations 1994 (Cth) reg 4.10


Migration Act 1958 (Cth) ss 66, 338, 347, 348, 494B, 494C, 494D
Migration Regulations 1994 (Cth) regs 2.16, 4.10























ADIL IQBAL DURRANI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 538 of 2005





SACKVILLE J
20 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 538 of 2005

BETWEEN:	ADIL IQBAL DURRANI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	20 MAY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. There be no order as to costs.















Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 538 of 2005

BETWEEN:	ADIL IQBAL DURRANI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	20 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE PROCEEDINGS

1 By an amended application, the applicant seeks review of a decision of the Migration Review Tribunal (‘MRT’). According to the amended application, the MRT’s decision was made on 2 November 2004, but it appears that the relevant decision was in fact made on 24 February 2005.

2 The MRT decided that the applicant’s application for review of a decision of a delegate of the respondent (‘the Minister’) was ‘ineligible’. The MRT’s decision record gave the following reasons for its decision:

‘[Section 347(1)(b) of the Migration Act 1958 (Cth)] requires that an application for review is given to the Tribunal within the prescribed period, being the period stated in [Migration Regulations, reg] 4.10.

The prescribed period for applying for review was 21 calendar days from the date of notification of the Department’s decision. You are taken to have been notified of the Department’s decision on 24 September 2004. The last date for lodgement of the application for review was 15 October 2004.

As the review application was lodged with the Tribunal on 19 October 2004, the review application was not lodged within the prescribed period for applying for review.’

3 The applicant has not filed any written submissions in this Court in support of his application for review of the MRT’s decision. The amended application, however, acknowledges that the application to the MRT was lodged outside the relevant time limit, but asserts that this was because the applicant was under severe stress at the time.

4 The hearing of the application was listed for 17 May 2005. At that time, the Minister’s representative, Ms Nanson, acknowledged that she did not have evidence of the date on which the letter notifying the applicant of the delegate’s decision, which was dated 15 September 2004, was sent to the applicant’s agent. She asked for an adjournment to obtain the evidence. With some reluctance, I granted the adjournment.

5 The hearing resumed on 20 May 2005. On that date, Ms Nanson read an affidavit from an officer establishing that the letter was posted two days after the date it bears - that is, it was posted on 17 September 2004. The applicant also read an affidavit which asserted that someone had tampered with the letter notifying his migration agent of the decision. (The substance of the affidavit was plainly inadmissible in form, but no objection was taken.)

THE FACTS

6 The applicant is a citizen of Pakistan. He arrived in Australia on 9 February 2003 on a Prospective Marriage (Temporary) (Subclass 300) visa. On 7 April 2003, the applicant applied for a Spouse (Subclass 801) visa or a Spouse (Subclass 820) visa. On 3 May 2003, the applicant was granted a Partner (Temporary) (Subclass 820) visa. The letter informing the applicant of the grant of the temporary visa advised him that, in general, permanent residence would not be granted earlier than two years from the date of lodgement of the original application.

7 On 24 March 2004, the Department of Immigration and Multicultural and Indigenous Affairs (‘DIMIA’) wrote to the applicant advising him that it had received information indicating that he and his sponsor were no longer living together in a spouse/partner relationship. The letter invited him to comment.

8 It appears that DIMIA’s letter was returned unclaimed. On 24 May 2004, DIMIA received notice that the applicant had appointed a migration agent to represent him. On 1 June 2004, DIMIA sent a copy of the letter of 24 March 2004 to the applicant’s migration agent. No response was received to that letter.

9 By a letter dated 15 September 2004, the delegate wrote to applicant advising him that his application for Partner (Residence) (Subclass 801) visa had been refused. That letter was posted on 17 September 2004. In the letter, the delegate stated that she had assessed the application against Subclass 801 (Spouse) and Subclass 814 (Interdependency). The decision record explains why, in the delegate’s view, the applicant had failed to meet the criteria for either of the relevant subclasses.

10 On 19 October 2004, the MRT received an application for review of the delegate’s decision. The application was lodged by the migration agent on the applicant’s behalf. As I have noted, the MRT considered the application for review to be ‘ineligible’.

11 I record that I do not accept the applicant’s assertion that the letter of 15 September 2004 was ‘tampered with’. This is not a matter within his knowledge. Moreover, it is perfectly plain that the applicant’s agent had received the letter, since a copy is attached to the application to the MRT prepared on the applicant’s behalf and received by the MRT on 19 October 2004.

THE LEGISLATION

12 Section 348 of the Migration Act 1958 (Cth) (‘Migration Act’) provides that if an application is properly made under s 347 for review of an ‘MRT-reviewable decision’, the MRT must review the decision. The delegate’s decision to refuse to grant the applicant the visa he sought was an ‘MRT-reviewable decision’ since the visa he sought could be granted while he was in the migration zone (s 338(2)(a)) and he made the application while in the zone (s 338(2)(b)). (Neither s 338(2)(c) nor s 338(2)(d) was applicable.)

13 Section 347(1)(b) of the Migration Act provides that an application for review of an MRT-reviewable decision must:

‘be given to the [MRT] within the prescribed period, being a period ending not later than:

(i) if the MRT-reviewable decision is covered by subsection 338(2) ... – 28 days after the notification of the decision; or

(ii) ...’

The Migration Regulations 1994 (Cth) (‘Migration Regulations’), reg 4.10, provide that for the purposes of s 347(1)(b) of the Migration Act, the period in which an application for review of an MRT-reviewable decision must be given to the MRT is:

‘(a) if the MRT-reviewable decision is mentioned in subsection 338(2) ... of the Act – 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; or

(b) ...’

14 Section 66(1) of the Migration Act provides that when the Minister refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way. The Migration Regulations, reg 2.16(3), provide that the Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in s 494B of the Migration Act.

15 Section 494B(4) of the Migration Act provides as follows:

‘Another method consists of the Minister 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 Minister by the recipient for the purposes of receiving documents; or

(ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents.’

16 Section 494D of the Migration Act deals with the case where an applicant specifies an authorised recipient for the purposes of receiving documents. Section 494D relevantly provides as follows:

‘(1) If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to do things on behalf of the first person that consist of, or include, receiving documents in connection with matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents that the Minister would otherwise have given to the first person.

(2) If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. However, this does not prevent the Minister giving the first person a copy of the document.’

17 Section 494C of the Migration Act applies if the Minister gives a document to a person by one of the methods specified in s 494B: s 494C(1). Section 494C(4) provides as follows:

‘If the Minister gives a document to a person by the method in subsection 494B(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) ...’

REASONING

18 Section 347(1)(b) of the Migration Act requires an application for review of an MRT-reviewable decision to be given to the MRT within the prescribed period. In the circumstances of the present case, that period was 21 days from notification of the delegate’s decision.

19 The delegate sent a letter dated 15 September 2004 to the applicant’s agent, informing the agent of the decision to refuse the application for a Partner (Residence) visa. The copy letter in the file has a sticker on it indicating that the letter was sent by pre-paid post. The application to the MRT lodged on the applicant’s behalf states that the letter of 15 September 2004 was posted and attaches a copy of that letter. Clearly enough, the letter was sent by pre-paid post to the agent’s address and was duly received by the agent.

20 Section 494D(1) of the Migration Act provides that if an applicant gives the Minister written notice of the name and address of a person authorised to receive documents in connection with matters arising under the Migration Act, the Minister must give the authorised person the relevant documents. If the Minister does so, he or she is taken to have given the documents to the applicant: s 494D(2).

21 In this case, on or about 28 May 2004, the applicant appointed the migration agent as his authorised representative to receive all communications from DIMIA. The letter of 15 September 2004 was duly addressed to the applicant’s authorised representative at the addressed notified by the applicant.

22 The effect of the Migration Regulations, reg 2.16(3), and s 494B(4) of the Migration Act is that the applicant is duly notified of the delegate’s decision if the document is dated and dispatched:

(a) within three working days of the date of the document;

(b) by pre-paid post;
(c) to the applicant’s last address for service.

If an applicant is duly notified of a matter in accordance with s 494B(4) he or she is taken to have received the document 7 working days after the date the document bears: s 494C(4).

23 The letter of 15 September 2004 was sent by pre-paid post to the applicant’s last address for service. I am satisfied by the evidence adduced on behalf of the Minister that the letter was dispatched within three days of 15 September 2004. On that basis, the effect of s 494B(4) is that the applicant is taken to have received the letter no later than 24 September 2004.

24 The application to the MRT for review of the delegate’s decision in order to be effective, had to be given to the MRT on or before 15 October 2004: Migration Act s 347(2)(b); Migration Regulations, reg 4.10. Since the application for review was not given to the MRT until 19 October 2004, the application was not made within the prescribed period. It follows that the MRT did not make any error of law when it concluded that it had no jurisdiction to determine the application for review of the delegate’s decision of 15 September 2004.

CONCLUSION

25 The application must be dismissed. Since the Minister required the indulgence of an adjournment in order to overcome an evidentiary difficulty that should have been overcome at or before the hearing on 17 May 2005, there should be no order as to costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:






The applicant appeared in person.

Solicitor for the respondent:	Angela Nanson, Australian Government Solicitor
Date of hearing:	17 May 2005
Date of judgment:	20 May 2005