FEDERAL COURT OF AUSTRALIA Liu v Minister for Immigration and Border Protection [2014] FCA 469 Citation: Liu v Minister for Immigration and Border Protection [2014] FCA 469 Appeal from: Liu & Ors v Minister for Immigration & Anor [2013] FCCA 2208 Parties: DESHENG LIU, QI GUAN and XUANCHEN LIU v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number: NSD 2599 of 2013 Judge: MARSHALL J Date of judgment: 12 May 2014 Legislation: Migration Act 1958 (Cth) s 347(1)(b) Migration Regulations 1994 (Cth) regs 4.10, 4.11(1)(d) Date of hearing: 12 May 2014 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 11 Counsel for the appellants: The first appellant appeared for the appellants. Counsel for the respondents: Ms SA Given Solicitor for the respondents: Sparke Helmore IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2599 of 2013 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: DESHENG LIU First Appellant QI GUAN Second Appellant XUANCHEN LIU Third Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: MARSHALL J DATE OF ORDER: 12 MAY 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellants pay the first respondent Minister's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2599 of 2013 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: DESHENG LIU First Appellant QI GUAN Second Appellant XUANCHEN LIU Third Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: MARSHALL J DATE: 12 MAY 2014 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The appellants appeal from a judgment of Judge Cameron of the Federal Circuit Court ("the primary judge"). The appellants are citizens of China. The first appellant applied, without success, for a Business Skills (Residence) (Class DF) subclass 890 visa on 22 December 2011. A delegate of the first respondent Minister refused the application on 3 September 2012. 2 The first appellant (on behalf of himself and the other appellants as members of his family group) attempted to review the delegate's decision before the Migration Review Tribunal ("the Tribunal"). The Tribunal held that it was unable to consider the review application as it had not been received by it within the mandatory statutory time frame. 3 Under s 347(1)(b) of the Migration Act 1958 (Cth) ("the Act"), an application to the Tribunal must be given to it within specified time periods. Pursuant to reg 4.10 of the Migration Regulations 1994 (Cth) ("the Regulations"), the relevant period for an application of the current type is 21 days. This meant that the appellants were required to give their review application to the Tribunal by 24 September 2012. 4 The appellants' migration agent claimed that he sent the review application to the Tribunal by facsimile transmission on 18 September 2012. The Tribunal found that it did not receive facsimile transmissions containing the review application in this matter in that timeframe. It found that a relevant review application was received, out of time, on 5 November 2012. 5 The primary judge had evidence before him dealing with whether the review application was received by the Tribunal on 18 September 2012. His Honour found that two facsimile transmissions sent to the Tribunal on 18 September 2012 related to requests to withdraw applications before the Tribunal and did not relate to the current appellants. 6 The Court considered that as the review application had not been received by the Tribunal within the 21 day time limit, the Tribunal was correct to hold that it had no jurisdiction to deal with the review application. 7 By their notice of appeal, the appellants contend that the Court erred in failing to find that the Tribunal wrongly declined jurisdiction by failing to take into account relevant considerations. 8 The first alleged relevant consideration was an alleged attempt to give the review application to the Tribunal by facsimile transmission on 18 September 2012. There is no evidence of any such attempt. In any event, a mere attempt to give does not constitute actual giving. 9 In his oral submissions this morning, the first appellant appeared to acknowledge that his migration agent had not given the application to the Tribunal within the 21 day time limit. He complained about the consequent unfairness visited on him. However, the matter before the Court is a jurisdictional one. The Tribunal had no jurisdiction to deal with an application filed out of time. 10 The second consideration raised in the notice of appeal concerned a statutory provision that was not in effect at the relevant time. The appellants claim that the Tribunal should have considered reg 4.11(1)(d) of the Regulations, however, that provision did not come into operation until March 2013. 11 For the above reasons, the appellants have not demonstrated that the Tribunal wrongly declined jurisdiction or that the Court below made an appealable error in failing to find that the Tribunal had wrongly declined jurisdiction. The appeal must be dismissed, with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 12 May 2014