FEDERAL COURT OF AUSTRALIA

Yu v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 912

YONG JIA YU v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 349 OF 2002

EMMETT J

16 JULY 2002

SYDNEY

THE COURT ORDERS THAT:

1.                  the application be dismissed; and

2.                  the applicant pay the respondent’s costs of the proceeding.

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

REASONS FOR JUDGMENT

1                     The applicant is a national of the People's Republic of China.  He first came to Australia on a student’s visa on 4 November 1999.  On 5 August 2001 the applicant left Australia and returned to China to visit his mother who was ill.  His mother died on 24 December 2001 and the applicant returned to Australia on 13 January 2002.  On 15 March 2002 the applicant lodged an application for a protection visa under the Migration Act 1958 (Cth)(“the Act”).  On 16 March 2002 he was granted a bridging visa under the Act.

2                     On 19 March 2002, at about 8.30 pm, officers of the Department of Immigration and Multicultural Affairs (“the Department”) came to the house that he then shared with his then fiancée.  The officers searched the house.  In the course of that search one of the officers found a business registration document of the applicant.  He was then asked some questions and was subsequently was taken to the Villawood Detention Centre.

3                     Shortly before midnight on 19/20 March 2002, the applicant was given a form 1099.  Form 1099 contains several parts.  Part A is Notice of Intention to Consider Cancelling a Visa.  Part B is Record of Decision to Cancel a Visa.  Part C is Notification of a Decision.  The form, relevantly, said as follows:

“The Department notified you on 19/3/2002 of its intention to cancel your visa.

 The Department has cancelled your visa under subsection 116(1) and, if applicable regulation 2.4(3).

 See part B - Record of decision to cancel visa, for the reasons your visa has been cancelled.

………………………

Review Rights

You are eligible for review of this decision by the Migration Review Tribunal (MRT).  Information on how to apply for review, and addresses and contact numbers of the MRT is on the reverse.  If you had a visa cancelled and you decide to make an application for review, you must apply within:

            two (2) working days after the day on which you received this notice if you had a bridging visa cancelled, ie by close of business on 21/3/2002.

………………………”

The applicant’s knowledge of English is limited and he was given no interpretation of the document, extracts from which I have just quoted. 

4                     On 22 March 2002 an application for review of the decision to cancel the applicant's visa was lodged with the Migration Review Tribunal (“the Tribunal”).  Subsequently, the applicant received a letter from the Tribunal dated 25 March 2002.  The letter relevantly said:

“Your application for a review of a decision to cancel your visa was received at this office on 22 March 2002.

 You were notified by a Departmental review officer of their decision on 19 March 2002, but did not make an application with the Tribunal until 22 March 2002.  A preliminary assessment of your eligibility to seek a review has been undertaken, but a final decision cannot be made until all the relevant papers relating to your cases have been received from the Department of Immigration and Multicultural and Indigenous Affairs.

 I have asked the Department for a copy of its documents and I would appreciate it if you could also forward any documents or written arguments you wish the Tribunal to consider which you have not already given to the Tribunal or the Department.

 In particular you may wish to put forward your arguments concerning the reasons why your application was not lodged within the prescribed time period allowed.

………”

5                     By letter of 26 March 2002 the applicant responded giving reasons for the failure to lodge an application with the Tribunal before 22 March.  The applicant subsequently received a letter from the Tribunal dated 5 April 2002 relevantly saying as follows:

“I am sorry to advise you that we cannot accept your application to the Tribunal for the review of the decision to refuse you a sub class WA visa.

 Your application to the Tribunal should have been lodged within a 2 day working [sic] time limit.

 The letter from the Department of Immigration informing you of the decision is dated 19 March 2002 and on this basis I have calculated that the last day on which you could have lodged a valid application for review was 21 March 2002.

 However, your application for review was not received at the Tribunal until 22 March 2002.

 The Tribunal has no power to extend or waive time limits, and in the absence of any argument to the contrary, I have determined that the Department properly notified you of the visa refusal.

 As such your application for review is ineligible for consideration and will be finalised accordingly.

……”

6                     On 26 April 2002 the applicant lodged an application to the Court seeking relief pursuant to s 39B of the Judiciary Act 1903 (Cth).  When the matter came on for hearing today an amended application was lodged without objection from the respondent, the Minister for Immigration, Multicultural and Indigenous Affairs (“the Minister”).  In the amended application the applicant seeks relief in respect of two decisions as follows:

(a)   The decision of the Migration Review Tribunal notified by the letter of 5 April 2002……

(b)   The decision of the Minister for Immigration and Multiculural Affairs made on or before 19 March 2002 which cancelled [the applicant's] visa under section 116(1) of the Migration Act 1958”

7                     In the course of argument counsel for the applicant conceded that the Court has no jurisdiction in respect of the decision of the Minister referred to in (b) above and, accordingly, the application was not pressed in so far as relief was claimed in respect of that decision.  The relief claimed in respect of the decision referred to in (a) above is as follows:

“1.       Declaration that the decision of the Migration Review Tribunal to reject the Applicant's application for review is invalid.

………………………

3.         Order that the Migration Review Tribunal hear and determine the applicant's application for review lodged 22 March 2002.”

Other incidental relief was also claimed as well as interlocutory relief.  No question arose in relation to those matters in the hearing before me today.

8                     It is common ground that the decision of the Minister’s delegate was an “MRT reviewable decision” within the meaning of the Act.  By reason of the operation of s 338(4) of the Act the Tribunal, therefore, was obliged to review that decision, so long as the requirements of the Act were satisfied.  Section 338(4) provides that the following decisions are MRT reviewable decisions, namely:

“(a)  a decision to refuse to grant a bridging visa to a non-citizen who is in immigration detention because of that refusal;

  (b)  a decision to cancel a bridging visa held by a non-citizen who is in immigration detention because of that cancellation.”

9                     Section 347(1)(b)(i) of the Act relevantly provides as follows:

“An application for review of an MRT-reviewable decision must be given to the Tribunal within the prescribed period being a period ending not later than if the MRT-reviewable decision is covered by subsection 338…(4) - 28 days after the notification of the decision.”

10                  Regulation 4.10(2)(a) provided as follows:

“…the period in which an application by a detainee for review of an MRT-reviewable decision must be given to the Tribunal…in the case of an application for review of a decision of a kind mentioned in section 338(4) of the Act - starts when the detainee receives notice of the decision and ends at the end of 2 working days after the day on which the notice is received…”

11                  The applicant advanced a number of arguments in support of the contention that the effect of regulation 4.10(2)(a) would be to permit the giving of an application for review in the circumstances of this case on 22 March 2002 because the office hours of the Tribunal should be taken to have involved something less than twenty-four hours of the day.  First, I was referred to s 36 of the Acts Interpretation Act 1901 (Cth) dealing with the reckoning of time.  Section 36(2) deals with the extension of the time “where the time for doing of anything falls on a Saturday, on a Sunday or on a day which is a public holiday or bank holiday.”  I do not regard that provision as having any relevance or giving any assistance in the present case.

12                  The applicant also referred to a Regulation 4.11, which provides that an application for review must be given to the Tribunal, in the case of a primary decision relating to an applicant who is in immigration detention, at a registry of the Tribunal by one of five specified means, or by giving it to an officer of immigration at least one working day before the expiry of the period in which the application for review must be given to the Tribunal under regulation 4.10.

13                  The five means of giving an application to the Tribunal at a registry are as follows:

“(a)     by posting it to that registry; or

  (b)     by leaving it at that registry in a box designated for receiving applications; or

  (c)      by leaving it with an officer of the Tribunal at that registry; or

  (d)     by sending it to that registry by fax; or

  (e)      by transmitting it to that registry by other electronic means specified in a direction given by the principal member under s 353A of the Act.”

14                  The applicant observed that it was not possible to give an application to the registry by each of those means after the time when the registry was closed.  It was also contended that Regulation 4.11 requires that an applicant must be able, for a full two days of forty-eight hours, to give an application by each of those means.  Accordingly, as I understand the contention, the regulations had the effect, in the present case, that the application could have been lodged on 22 March 2002.

15                  I do not see any justification for such an effect to be given to the regulation.  If it were established that there was no way for the applicant to have given an application to the Tribunal during the two day period by any of the means referred to in Regulation 4.11(a)(i) that could possibly have given rise to some contention.  I express no view about that.  However, it was open to the applicant at any time on 20 or 21 March 2002 to have given an application to the Tribunal at a registry of the Tribunal by sending it to that registry by fax.  There is no evidence that the applicant did not have access to a facsimile device, notwithstanding that he was in detention.  I am not persuaded that the effect of the regulations would be to have permitted the applicant to have lodged an application after the expiration of two working days after the day on which he received notice of the relevant decision. 

16                  The applicant also advanced a separate contention that Regulation 4.10(2)(a) should be construed as referring to notification that complies with s 127 of the Act.  Section 127 relevantly provides as follows:

“(1)     When the Minister decides to cancel a visa, he or she is to notify the visa holder of the decision in the prescribed way.

 (2)      Notification of a decision to cancel a visa must:

(a)       specify the ground for the cancellation; and

(b)       state whether the decision is reviewable under Part 5 or 7; and

(c)        if the former visa holder has a right to have the decision reviewed under Part 5 or 7 - state:

(i)        that the decision can be reviewed; and

(ii)       the time in which the application for review may be made; and

(iii)      who can apply for the review; and

(iv)      where the application for review can be made.

 (3)      Failure to give notification of a decision does not affect the validity of the decision.”

17                  The applicant contended that the document furnished to the applicant late in the evening of 19 March 2002 did not satisfy the requirements of s 127 in that, although it stated that the applicant was eligible for review of the decision, it did not state, in terms, that the decision was reviewable under Part 5 or under Part 7 of the Act.  Secondly, it did not state accurately the time in which the application for review may be made, because it said that the application must be made by close of business on 22 March 2002.

18                  Regulation 4.10(2)(a) does not speak in terms of notifications.  It makes no reference to s 127.  There is a distinction, in my view, between the receipt of notice of a decision and the contents of a document whereby such notice is given.  That distinction appears to me to be recognised by the terms of s 127 itself.  Thus, s 127 requires that the Minister must notify a visa holder of a decision to cancel. Secondly, it requires that notification must be given in the prescribed way.  Section 127(2) requires that the notification must also furnish additional information beyond mere notice of the decision.

19                  Even if the document that was handed to the applicant on the evening of 19 March 2002 did not strictly comply with the requirements of s 127, there can be no doubt that the applicant received notice of the decision at that time.  I am not persuaded by the reasoning of the Tribunal in reference N9301742 of 7 April 1995, that failure to comply with s 127 rendered void any notification to the applicant of the decision to cancel his visa. 

20                  The applicant also contended that, by reason of his limited comprehension of English, he did not effectively receive notice of the decision by the handing to him of the document on the evening of 19 March 2002.  It may well be that the applicant was unable to comprehend the full detail of the document that was handed to him.  He does not say, however, that he did not understand that a decision has been made to cancel his visa

21                  I do not consider that the expression “receive notice” in s 410(2)(a) imposes an obligation on a decision maker to ensure that a notice in English is translated into a language familiar to a recipient (see Nguyen v Refugee Review Tribunal (1997) 74 FCR 311 at 321 and 326-7).

22                  The reasoning of the Tribunal in its letter of 5 April 2002 is curious in one sense.  It says:

“Your application to the Tribunal should have been lodged within a two day working time limit.”

That language does not reflect the language of the provisions.  It may be that it contains a mere typing mistake by the reversal of the order of the words “day” and “working”.  If the expression used was “within a two working day time limit”, that would accord with the language of the regulation.  In any event, even if the Tribunal misapprehended the effect of the regulation, I am not satisfied that there would be any utility in referring the matter back to the Tribunal, since the application would be dismissed.  It would be unfortunate if a decision that had real prospects of success is excluded by a failure to comply with very short time limits.  If that were so, one must feel sympathy for an applicant who loses the right of review in such circumstances.  Nevertheless, it is not for the Court to express any view about the policy underlying these provisions.  In my view the application fails and should be dismissed.

Associate:

Dated:              23 July 2002