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Cao v Minister for Immigration & Anor [2009] FMCA 70 (10 February 2009)

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Cao v Minister for Immigration & Anor [2009] FMCA 70 (10 February 2009)

Last Updated: 11 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CAO v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Review of Migration Review Tribunal decision – student visa – refusal – application to Tribunal filed out of time – Tribunal had no jurisdiction to entertain the application – in his notification of visa refusal and review rights the Minister is not required to qualify his advice concerning the time period within which an appeal can be lodged with the Tribunal to account for the possibility that, if sent by prepaid post, the notification might not have been posted within three working days of the date of the document and thus the notification might not be deemed to have been received on the relevant date prescribed by s.494C(4) – Tribunal bound by common law rules of procedural fairness when considering whether it has jurisdiction in a matter.


Khan v Minister for Immigration & Citizenship [2007] FMCA 419
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369

Applicant:
ZHANG LIANG CAO

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
MIGRATION REVIEW TRIBUNAL

File Number:
SYG 2544 of 2008

Judgment of:
Cameron FM

Hearing date:
15 December 2008

Date of Last Submission:
15 December 2008

Delivered at:
Sydney

Delivered on:
10 February 2009

REPRESENTATION

Counsel for the Applicant:
Mr R. Killalea

Solicitors for the Applicant:
City Law

Counsel for the Respondents:
Mr T. Reilly

Solicitors for the Respondents:
Sparke Helmore

ORDERS

(1) The application be dismissed.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2544 of 2008

ZHANG LIANG CAO

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

Introduction

  1. The applicant applied for a Student (Temporary) (Class TU) visa on 27 March 2007. On 6 October 2007 the application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Migration Review Tribunal (“Tribunal”) for a review of that departmental decision. He was unsuccessful as the Tribunal concluded that the review application had been made out of time with the consequence that it had no jurisdiction in the matter. The applicant has applied to this Court for judicial review of the Tribunal’s decision.
  2. For the reasons which follow, the application will be dismissed.

Relevant law

Deemed receipt of notification to refuse visa

  1. Section 347 of the Migration Act 1958 (“Act”) sets out the requirements for an application for review to the Tribunal. Relevantly to this case, s.347(1)(b) provides:

(i) if the MRT-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A) – 28 days after the notification of the decision; ...

  1. The decision to refuse the applicant’s application for a student visa was, pursuant to s.338(2), an MRT-reviewable decision.
  2. For the purposes of s.347(1)(b), reg.4.10 of the Migration Regulations 1994 (“Regulations”) prescribes the periods within which applications for review can be lodged with the Tribunal. It relevantly provides:
  3. When the Minister grants or refuses to grant a visa, s.66(1) requires that he notify the applicant of the decision in the prescribed way. Regulation 2.16(3) prescribes that this must be by one of the methods specified in s.494B, which relevantly provides:

(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;...

  1. Section 494D(1) provides that if an applicant has appointed an authorised recipient to receive communications under the Act on his or her behalf, the Minister is to send notifications to that authorised recipient instead of the applicant. If notification is given in this way it is taken to have been given to the applicant: s.494D(2).
  2. Section 494C of the Act relevantly provides:

Required content of notification of decision to refuse visa

  1. Section 66(2) provides that a notification of a decision to refuse a visa must contain certain information about why the visa was refused and, if there is a right of review, how to apply for review of the decision.

Background facts

  1. On 6 October 2007 a delegate of the Minister refused the applicant’s application for a Student (Temporary) (Class TU) visa. The applicant was notified of the delegate’s decision and of his review rights by letter dated 6 October 2007, which was sent to the applicant’s migration agent, and authorised recipient, by prepaid registered post on 8 October 2007. Amongst other things, the notification stated:
  2. On 13 November 2007 the applicant lodged with the Tribunal an application for review of the delegate’s decision.
  3. By letter dated 15 August 2008 the Tribunal informed the applicant that his application for review appeared to have been filed out of time. The Tribunal invited the applicant to comment on the issue of when he was notified of the delegate’s decision, noting that:
    1. he was taken to have received that notification 7 working days after the date of the department’s letter, namely 17 October 2007;
    2. the application to the Tribunal had to be made within 21 calendar days of notification of the delegate’s decision so the last day on which the applicant could have applied for review was 7 November 2007; and
    1. the Tribunal did not receive the application for review until 13 November 2007.
  4. The applicant’s representative responded by letter dated 25 August 2008 submitting that:
    1. pursuant to s.347(1)(b)(i) of the Act, the applicant in fact had 28 days after notification of the delegate’s decision to file a review application, which meant that he had until 13 November 2007 to file his application;
    2. the delegate “clearly” had 28 days in mind because she referred, in her notification letter, to the applicant’s judicial review visa as being valid until 13 November 2007;
    1. if the 28 day time limit was incorrect, then the delegate’s statement that the “Judicial Review visa that is valid until 13 November 2007” was both incorrect and misleading and it was based on this misleading statement that the review application was filed out of time; and
    1. no question of eligibility was raised by the Tribunal for nine months. The applicant was under a reasonable impression that his application for review had been validly made and he organised his life based on this reasonable impression.

The Tribunal’s decision and reasons

  1. The Tribunal found that the application for review filed on 13 November 2007 was made outside the time limit prescribed by the Act and the Regulations, noting that:
    1. pursuant to sch.2 to the Regulations, the applicant’s bridging visa was valid for 28 days after notification of the delegate’s decision, not 21 days. In any event, that period was not related to the period in which an applicant can seek review of a departmental decision;
    2. the notification letter clearly set out the time frame for review;
    1. the department’s usual practice when a decision record is posted is to enclose a leaflet providing information about the review process. The letter accompanying the decision record referred to this leaflet and there was no evidence before the Tribunal to suggest that the leaflet was not enclosed. The Tribunal was therefore satisfied that the contents of the delegate’s decision notice complied with the requirements of s.66(2);
    1. the Tribunal was satisfied that the delegate’s notification letter had been dispatched to the correct person, the applicant’s authorised recipient, at the correct address;
    2. the decision notice dated 6 October 2007 was sent by prepaid registered post on 8 October 2007 from a place in Australia to the applicant’s authorised recipient at an address in Australia. The Tribunal found that the decision notice, having been dispatched within 3 working days of the date of the letter to the correct address, complied with the requirements set out in ss.66(1), 494B(4) and 494D and that the applicant was therefore taken to have received the notice on 17 October 2007, being 7 working days after the date of the notice; and
    3. although the applicant’s representative may have misunderstood the contents of the letter and the requirements of the Regulations and may have been under the impression that the Tribunal had jurisdiction, the Tribunal found that this did not affect the validity of the delegate’s decision notification and the prescribed period within which the application for review had to be lodged, nor did it alter the fact that the application for review was not received by the Tribunal within the prescribed period. Therefore the Tribunal did not accept that the submissions of the applicant’s representative on 25 August 2008 provided any basis for accepting the review application lodged on 13 November 2007.
  2. Having made these findings, the Tribunal concluded that the prescribed period of 21 days within which the application for review could have been lodged ended on 7 November 2007. As the application was filed on 13 November 2007 it was not a valid application and the Tribunal concluded that it did not have jurisdiction in the matter.

Proceedings in this Court

  1. The grounds in the second amended application were pleaded as follows:

Breach of s.66(2)(d)(ii)

  1. The first allegation was particularised as follows:
  2. The applicant identifies two issues as arising out of this allegation, the principal one being whether the application for review was properly made by the applicant and a subsidiary one being whether the notification of the delegate’s decision complied with s.66(2)(d)(ii) of the Act.

Principal issue

  1. Notwithstanding that it was submitted that the principal issue was whether the application for review was properly made by the applicant, and in particular made within 21 days of notification of the delegate’s decision, it was addressed only obliquely. Reference was made to the scheme of ss.494B and 494C.
  2. In connection with the scheme erected by ss.494B and 494C concerning when documents are taken to have been received and thus when the time periods under ss.494C, 347 and reg.4.10 are taken to have passed I find that:
    1. the delegate’s notification letter dated 6 October 2007 was sent by registered post to the applicant’s authorised recipient on 8 October 2007. Although the copy of that letter reproduced in the Court Book at CB 19 – 21 does not disclose the registered post number for that article, at CB 39 this detail does appear in an email from Sandra Muraro, a Tribunal officer, to the Business Centre of the Department of Immigration (“Department”) as RP35389342. In that email, Ms Muraro requests details of the despatch of the decision notification letter. The Department replied by enclosing a copy of its “Outgoing Registered Post – Report” which discloses that the article RP35389342 was despatched on 8 October 2007 to the applicant’s authorised representative (CB 41). Further, in his letter to the Tribunal of 25 August 2008 (CB 46), the applicant’s authorised representative appears to accept that the decision notification letter was despatched and taken to have been received in accordance with ss.494B and 494C. Certainly, he raised no issue concerning the applicability of that aspect of the statutory regime;
    2. it having been sent on 8 October 2007, the decision notification letter is taken to have been received seven working days after the date it bears. Thus it is taken to have been received on 16 October 2007: s.494C(4)(a). The Tribunal calculated that that period expired on 17 October 2007 but in doing so misinterpreted s.494C(4)(a) as prescribing a period expiring after seven working days after the notice was taken to be received, not seven days after that receipt. The paragraph does not refer to clear days;
    1. the applicant had until 6 November 2007 to file his review application with the Tribunal: reg.4.10; and
    1. the applicant filed his review application on 13 November 2007, as disclosed by the letter from his authorised recipient to the Tribunal dated 25 August 2008 (CB 46).
  3. That is to say, I find that ss.494B, 494C, 494D, 347 and reg.4.10 applied in the circumstances of this case with the effect that the applicant’s application to the Tribunal was filed out of time as it was not lodged until 13 November 2007.
  4. Consequently, unless the other matters raised by the applicant disclose jurisdictional error on the part of the Tribunal, it was correct to find that it had no jurisdiction to entertain the application which the applicant made to it.

Subsidiary issue

  1. The applicant submitted that the notification letter failed to comply with s.66(2)(d)(ii) because it failed to state that the time periods it specified depended on the notification letter being posted within three working days of the date of the letter. Relevantly, the letter said:
  2. The applicant submitted that the notification letter was expressed in absolute terms whereas it should have identified that the temporal requirement it specified depended on whether it had been sent within three working days of its date and should have been qualified so as to account for the possibility that it had not been despatched in accordance with the statutory scheme discussed above at [6]-[8]. It was submitted that at the time the notification letter was written, the delegate could not have known whether the notification would be despatched in accordance with the statutory scheme and, in such circumstances, s.66(2)(d)(ii) required the notification to be qualified by the addition of words such as:

It was suggested that an applicant would be able to know whether a letter had been posted in accordance with such a qualification by reference to the postmark on the envelope.

  1. One answer to this submission is that s.66(2)(d)(ii) requires an applicant, that it to say a particular applicant, be advised of:
  2. In these proceedings the Court is required to determine whether the notification of the delegate’s decision did this. The relevant passage from the notification is quoted above at [23]. That passage accurately stated the time periods under ss.494C and 347 and reg.4.10, which were the provisions applicable to this case. By doing so, the notification letter accurately stated the period within which the application for review could be made.
  3. In determining whether jurisdictional error affected the Tribunal’s decision, it is only necessary to determine whether the applicant was actually advised of the time periods applicable to any review he might wish to bring to the Tribunal. That he was not alerted to the potential inaccuracy of the time periods specified in the letter because of a possible failure by the delegate to meet the requirements of s.494B(4)(a) is of no consequence because they were not inaccurate.
  4. In this case, there was no need to suggest any qualification because the letter was objectively accurate. Therefore, the Tribunal did not err when it concluded, as a jurisdictional fact, that the contents of the delegate’s decision notice complied with the requirements of s.66(2).
  5. Further, the applicant’s submissions overlook the fact that if a notification sent by prepaid post is not sent within three working days of the date of the document, it has not been dispatched in accordance with s.494B with the result that it has not been notified in accordance with s.66(1) and reg.2.16. The consequence of that situation would be that, although the applicant receives notification, time would not have commenced to run under s.347. Notwithstanding the applicant’s submissions to the contrary, I conclude that this means that no unfairness would result to the applicant were the notification letter not sent within the period mandated by s.494B(4) because he would remain free to lodge an application with the Tribunal. That is to say, any such application would not be out of time or invalid on that account.
  6. A second answer to the applicant’s submissions is that to have qualified the notification in the way suggested by the applicant would lead to confusion: Khan v Minister for Immigration & Citizenship [2007] FMCA 419 at [15]; cf. CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 404-409.
  7. In CIC Insurance Ltd v Bankstown Football Club Ltd, the appellant insured argued that although the respondent insurer had sent a notice cancelling the relevant insurance policy with effect from a particular date, it should also have sent a statutory notice under s.58 of the Insurance Contracts Act 1984, amongst other things, advising that it did not intend to offer renewal. Any such notice under s.58 of the Insurance Contracts Act 1984 would also have required the respondent insurer to specify the expiry date of the policy which would, necessarily, have been a date different from the cancellation date specified in the cancellation notice. Although that case was concerned with apparent inconsistency between two statutory provisions and the proper approach to be taken when such a situation presents, it was nevertheless found that the insurer would not be required, in a second notice, to gainsay what it had said in the first (at 409).
  8. Similarly here, the applicant suggests that the delegate should state

in one part of the notification but, in another part, suggest that in certain circumstances this might be incorrect. An applicant receiving such a decision notification letter is entitled to certainty and the scheme erected in ss.494B and 494C provides for a certainty which can be relied upon by the Tribunal and by an applicant concerning the period in which an applicant may apply to the Tribunal.

  1. The particulars to this first allegation assert that the decision in Khan’s case was clearly wrong. As the above reasons disclose, I do not share this view but respectfully agree with the relevant conclusion of Scarlett FM.

Breach of common law rules of natural justice

  1. The second allegation was particularised as follows:
  2. The applicant submitted that the Tribunal should have notified to the applicant the existence, and presumably the substance, of the Tribunal’s “Outgoing Registered Post – Report” and other records associated with the despatch of the decision notification letter.
  3. The Tribunal may only undertake a review in circumstances where it has received an application properly made under s.347. Absent such an application, there can be no review by the Tribunal and thus those provisions of div.5 of Pt.5 of the Act, including s.357A, to the extent that they do not deal with proceedings before the Tribunal which are not reviews, do not apply. Thus, in determining whether it has jurisdiction, the Tribunal remains bound by common law rules of procedural fairness except to the extent they may still be excluded by the provisions of div.5 of Pt.5 of the Act. Relevantly to this case, the Tribunal was bound by the obligation to identify to the applicant information potentially adverse to his review application, in the sense of information which indicated that the Tribunal did not have jurisdiction.
  4. The relevant test has been expressed by Brennan J in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 in the following terms:
  5. Here, the letter from the Tribunal to the applicant’s authorised recipient dated 15 August 2008 states:

The Tribunal also said that the Tribunal had no power to consider late applications and it appeared that the applicant’s review application had been filed late. In essence, the Tribunal was saying that the statutory scheme set out in ss.494B, 494C, 347 and reg.4.10 applied to this review application.

  1. The applicant submits that he should have been notified of the “despatch” record because it was critical to proving that the decision notification letter had been despatched in accordance with s.494B(4) and, if he had been informed of the record, he may have undertaken inquiries which would have cast doubt upon or disproven the fact that the letter was posted on 8 October 2007.
  2. In my view, amongst other things the Tribunal was required to inform the applicant that the notification letter had been sent by prepaid post on 8 October 2007. This information was not contained in its letter of 15 August 2008 and therefore that letter was insufficient to satisfy the Tribunal’s common law procedural fairness obligations when determining whether it had jurisdiction to entertain the review application.
  3. Even so, and although the Tribunal has to turn its mind to whether it has jurisdiction in a particular matter, this is ultimately a question for the Court to determine: Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369 at 391. That being so, any procedural error by the Tribunal when considering the question of its jurisdiction, including a misstatement of the critical dates, is not determinative of the application in this Court. The Court must determine the question for itself.
  4. Consequently, the denial of procedural fairness of which the applicant complains will be of no significance unless the Tribunal’s error is repeated in these proceedings. In this connection, the contents of the “despatch” record were supplied to the applicant as part of the Court Book which was filed and served in these proceedings. Consequently, even though the applicant was denied procedural fairness by the Tribunal when it considered whether it had jurisdiction, he was not similarly denied it in these proceedings. And significantly, although the applicant submitted that he may have adduced evidence before the Tribunal to disprove the despatch of the letter on 8 October 2007, no such attempt was made in these proceedings where, as already observed, the issue of the Tribunal’s jurisdiction was ultimately to be decided.
  5. No challenge to the Tribunal’s decision was mounted by reference to the Tribunal’s misstatement of the critical dates in its letter of 15 August 2008, quoted above at [38].
  6. For the reasons set out above, I am satisfied that the notification letter was sent on 8 October 2007 and that the Tribunal had no jurisdiction to entertain the applicant’s review application.

Conclusion

  1. Consequently, jurisdictional error on the part of the Tribunal has not been made out and the application will be dismissed.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Cameron FM


Associate:


Date: 10 February 2009

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