Islam v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 Before the Court is an appeal from orders made by the Federal Magistrates Court on 6 October 2011. The federal magistrate dismissed an application for review of a decision of the Migration Review Tribunal. The first appellant is a citizen of Bangladesh. He appeared in person and on behalf of his partner, the second appellant. 2 In a decision dated 4 April 2011, the Tribunal determined that it had no jurisdiction to hear an application for review of a refusal by a delegate of the first respondent to grant the appellants Student (Temporary)(Class TU) visas because their application for review was lodged out of time. 3 The Tribunal explained that the decision of the delegate refusing the visas was posted to the appellants on 16 July 2010. By operation of the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth), the appellants were deemed to have received the decision on 26 July 2010. As a consequence, the last date for lodgement of any application for review was 16 August 2010. In fact, the appellants lodged the applications on 20 August 2010. The appellants explained to the Tribunal that they were not home on 20 July 2010 when the decision was apparently delivered by the postman. They claimed that, on 9 August 2010, the Department of Immigration and Citizenship sent an email to them about the need for a response. This caused the appellants to collect the decision from the post office. The appellants argued that the date they received the decision was 9 August 2010, not 26 July 2010, and consequently, their application lodged on 20 August 2010 was within time. 4 The appellants sought review of the decision of the Tribunal on the ground that the Tribunal "constructively failed to uphold [their] natural justice". Before the federal magistrate, the appellants repeated the argument that their application was lodged in time and also complained that their migration agent had indicated to them that, in view of the email of 9 August 2010 from the Department, they were entitled to lodge their application by 20 August 2010. 5 In her reasons for judgment, the federal magistrate dealt with both issues, namely, whether the application was lodged in time and whether the wrong advice of the migration agent had any consequence on the date of lodgement of the application. 6 The federal magistrate held that the Tribunal was correct to determine that the appellants were deemed to have been notified of the decision on 26 July 2010. In particular, this flowed from the operation of s 494C(4)(a), which provides that a document sent by the Minister to an address in Australia by pre-paid post or other prepaid means in accordance with s 494B(4) is deemed to have been received at that address seven working days after the date of the document, even if it has not actually been received. 7 The federal magistrate concluded at [20]: Insofar as the applicant takes issue with the Tribunal's conclusion that the application was lodged out of time and that it did not have jurisdiction, no jurisdictional error has been identified in that regard. The applicant submitted that his application was a valid application. However s.347(1)(b) of the Act requires that an application for review be given to the Tribunal within a prescribed period (see reg.4.10). As the decision was an MRT-reviewable decision and the applicant was not in immigration detention, the prescribed period under reg.4.10(1)(a) was 21 days after the day on which notice of the delegate's decision was received. This is a reference to the date of deemed notification of the delegate's decision (see s.494C(4)). As calculated by the Tribunal, the 21 day period ended on 16 August 2010. The application was lodged out of time. As the Tribunal correctly stated, it does not have a discretion to accept applications lodged outside the prescribed period. The Tribunal's decision that it did not have jurisdiction was correct. 8 In relation to the conduct of the migration agent, the federal magistrate considered that as no fraud had been alleged against the migration agent which induced or affected the Tribunal decision, there was no basis upon which the decision of the Tribunal could be impugned for jurisdictional error arising from the migration agent's alleged misconduct. The federal magistrate concluded at [24] and [25] as follows: There is no suggestion of any motive for the migration agent to commit fraud by advising the applicant that he had additional time within which to file an application for review. There is nothing in the circumstances of the case to suggest that making a review application within time would in any way have exposed the involvement of the migration agent in something untoward. In fact, it is apparent from the material before the court that the application that was lodged with the Tribunal was lodged by the migration agent who was appointed authorised recipient in the review form. The complaint that the applicant makes about incorrect advice from his migration agent is not such as to establish any jurisdictional error on the part of the Tribunal. If the applicant has a complaint about the conduct of his migration agent, this may be something he can raise with the Migration Agents Registration Authority, but it does not establish jurisdictional error. 9 In relation to the last date for lodgement, I agree with her Honour's conclusion, and also with the reasons upon which it is based. Those reasons follow the clear statutory provisions, which were dealt with in the same way by the Tribunal. It would be unnecessarily repetitive for me to restate the contents of that statutory scheme in these reasons. 10 In relation to the federal magistrate's conclusion and reasoning concerning the misconduct of the appellant's migration agent, I also agree with her Honour's conclusions and the reasoning which she adopted. If, as the appellants claim, they were misled into thinking that the last date for lodgement was as late as 20 August 2010, and they paid money for an application which could never have been valid, then in addition to a complaint to the Migration Agents Registration Authority, the appellants may have a civil claim against their agent. However, as found by the federal magistrate correctly, the existence of any rights against the agent does not, in the circumstances of this case, impugn the decision of the Tribunal that it had no jurisdiction to entertain the application for review of the visa rejection. 11 Consequently, the appeal must be dismissed. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.