FEDERAL COURT OF AUSTRALIA

Ngo v Minister for Immigration & Multicultural &

Indigenous Affairs [2002] FCA 1594

NGO NGUYEN PHUC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W291 OF 2002

CARR J

18 DECEMBER 2002

PERTH

THE COURT ORDERS THAT:

1.         The respondent’s objection to competency, filed on 30 October 2002, is upheld.

2.         The application be dismissed.

3.         The applicant pay the respondent’s costs of the application. 

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

REASONS FOR JUDGMENT

introduction

1                     The Court has before it a notice of objection by the respondent to the competency of the application.  By his application the applicant applies for an extension of time in which to “appeal” (which has been taken to be a reference to applying for an order of review) from the decision of the respondent to cancel the applicant’s Class BF Subclass 205 Transitional (permanent) visa pursuant to s 501(2) of the Migration Act 1958 (Cth) (“the Act”), on the ground that the applicant did not pass what is known as “the character test”. 

2                     The respondent contends that the Court has no jurisdiction under the Act to review the respondent’s decision, as an application for review was not lodged with the Court within 28 days of the applicant being notified of that decision as required by s 477(1) of the Act.  On the present state of the authorities relating to extension of time, the only question is whether there is sufficient proof in the evidence before the Court to establish when the applicant was so notified, or is to be taken to have received, the document which is said to have notified him of the respondent’s decision. 

factual background

3                     The applicant is an unmarried citizen of Vietnam who first entered Australia on 25 September 1990, shortly before his 21^st birthday.  Between 11 March 1992 and 27 September 2001 the applicant was convicted for some 42 offences.  The more serious of those convictions include:

·          29 July 1994 – one charge of robbery whilst armed in company for which the applicant was sentenced to imprisonment for 4 years and 4 months;

·          6 February 1997 – burglary and “commit offence” for which the applicant was imprisoned for 12 months;

·          20 June 1997 – two charges of burglary and “commit offence” and one charge of robbery whilst armed in company – the applicant was sentenced to a total of 7 years imprisonment; and

·          27 September 2001 – burglary and “commit offence” for which the applicant was sentenced to 18 months imprisonment.

4                     Section 501(2) of the Act relevantly provides that the respondent may cancel a visa if he reasonably suspects that the visa holder does not pass the character test and that person does not satisfy the respondent that he or she passes the character test.  Section 501(6)(a) relevantly provides that a person does not pass the character test if he or she has a substantial criminal record within the meaning of s 501(7).  Under s 501(7)(c) a person is deemed to have a substantial criminal record if he or she has been sentenced to a term of imprisonment of 12 months or more. 

5                     The evidence shows that the respondent’s decision to cancel the applicant’s visa was made on 11 May 2002.  I now turn to the evidence of the steps taken to notify the applicant of that decision. 

6                     On 28 June 2002, by letter of that date, sent by registered mail and addressed to the superintendent at Acacia Prison, the respondent wrote in the following terms: 

“The attached notice is for your file on Nguyen Pho NGO, alias Nguyen Phuc NGO, who has received a NOTICE OF VISA CANCELLATION UNDER SUBSECTION 501(2) OF THE MIGRATION ACT 1958 from the Minister for Immigration and Multicultural and Indigenous Affairs. 

It would be appreciated if you would pass on the enclosed envelope containing Nguyen Pho NGO, alias Nguyen Phuc NGO’s copy of the notice and have him sign the extra copy (enclosed) for receipt and return it to me in the enclosed envelope.”

7                     The signatory of that letter was Ms Alexandra Hunter from the respondent’s Visa Cancellation Unit. 

8                     Ms Hunter swears that, in accordance with the usual practice, there was enclosed in that letter an envelope addressed to the applicant which contained a letter (a copy of which is in evidence) notifying him that the respondent had decided to cancel his visa pursuant to s 501(2) of the Act, together with a copy of the Departmental submission to the respondent (in the preparation of which Ms Hunter was involved) and a further notice addressed to the applicant and also dated 28 June 2002 advising him, among other things, that an order had been made to deport him.  Annexed to Ms Hunter’s affidavit is a photocopy of a Registered Post lodgement document which Ms Hunter swears is dated 1 July 2002 (the figure looks somewhat like a 4, but I am prepared to accept that it is a 1, partly on the basis that a similar figure appears on the document in respect of Locked Bag 1 which forms part of the postal address for Acacia Prison).  Also annexed to Ms Hunter’s affidavit is a photocopy of her letter dated 28 June 2002 on which is endorsed “Forwarded to Mr Ngo 3/7/02” (by which notation there is an initial) which the management of the prison forwarded to Ms Hunter on 22 November 2002. 

9                     Ms Hunter swears that as at July 2002, Acacia Prison, Locked Bag 1, Wooroloo, WA 6558 was the last known address for the applicant.  From prison records annexed to an affidavit of Mr Timothy John Carey, filed on 10 December 2002, I am satisfied that the applicant was in Acacia Prison between 22 November 2001 and 1 October 2002. 

10                  Section 501G(1)(b) relevantly required the respondent to give the applicant notice of his decision to cancel the applicant’s visa.  Section 501G(3) required that notice of the respondent’s decision be given in the prescribed manner.  The relevant prescription is provided by Regulation 2.55(4).  That regulation relevantly provided that the notice had to be given in ways which include dating it and despatching it within 3 working days of the date of the document by pre-paid post to the person’s last residential address. 

11                  Regulation 2.55(7) provides that if a document is given by that means, the person is taken to have received the document (if despatched from a place in Australia to an address in Australia) 7 working days after the date of the document. 

12                  On the evidence before me, I find that the respondent’s notification was despatched within 3 days of its date by pre-paid registered post to the applicant’s last residential address, being Acacia Prison.  In those circumstances the applicant is taken to have received the document on 9 July 2002 (being 7 working days from its date of 28 June 2002). 

13                  I should add that the applicant has not put any evidence before the Court to suggest that he was not served with notice of the respondent’s decision by 9 July 2002.  On the contrary, the reasons which he advances for an extension of time relate to his poor knowledge of the English language and lack of knowledge about his appeal rights. 

14                  There is no evidence of any application to review the respondent’s decision having been made within 28 days of 9 July 2002. 

15                  The application for an extension of time was lodged on 9 October 2002.

16                  Section 477 of the Act provides that an application to review a decision of the type made by the respondent in this case must be made to the Court within 28 days of notification of the decision and that this Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside that period. 

17                  There are numerous decided cases, binding on me, to the effect that this Court has no power to extend the time in which the applicant may seek review of the respondent’s decision, and that the legislation which so provides is within Constitutional power – see, for example, the authorities cited, in relation to the relevantly identical provisions of the former s 478(2) in W281 v Minister for Immigration and Multicultural Affairs [2002] FCA 419 at paragraphs [36] to [39]. 

18                  When the matter came before me for directions on 16 October 2002, there was some doubt about precisely which decision the applicant sought to have reviewed.  I made an order granting the applicant leave to amend his application and deeming it to have been amended forthwith so as to include an application to review any judicially-reviewable decision made by the respondent or his delegate in relation to the removal or deportation of the applicant, being a decision made or notified to him within the period of 28 days preceding the making of that order.  There is no evidence before the Court of any such decision.  In fact the evidence shows that the decision to deport the applicant was made on or about 28 June 2002. 

19                  For the foregoing reasons I must uphold the objection to competency and dismiss the application.  There will be orders accordingly. 

Associate:

Dated:              18 December 2002