APZ15 & Anor v Minister for Immigration & Anor
[2017] FCCA 1473
•3 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| APZ15 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1473 |
| Catchwords: MIGRATION – Judicial review – decision of former Refugee Review Tribunal – decision of the Minister’s delegate – refusal to grant Protection (Class XA) visa – no jurisdiction to review “primary” decision – whether the Minister’s delegate complied with notification requirements – whether the Tribunal had jurisdiction – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.66, 362B, 412, 476, 494B, 494C Migration Regulations1994 (Cth), regs. 2.16, 4.31 |
| Cases cited: Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 |
| First Applicant: | APZ15 |
| Second Applicant: | AQA15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1177 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 16 February 2017 and 2 March 2017 |
| Date of Last Submission: | 2 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 3 July 2017 |
REPRESENTATION
| First and Second Applicants: | In person |
| Solicitors for the Respondents: | Mr L Leerdam of DLA Piper Australia |
ORDERS
The application made on 29 April 2015 and amended on 17 July 2015 is dismissed.
The applicants to pay the first respondent’s costs as agreed or assessed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1177 of 2015
| APZ15 |
First Applicant
| AQA15 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 29 April 2015, and amended on 17 July 2015. The amended application seeks judicial review of the decision of the Minister’s delegate (“the delegate”) made on 9 February 2015 which refused the grant of protection (Class XA) visas to the applicants. The application also seeks review of the decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), which subsequently found it did not have jurisdiction to review the delegate’s decision.
The following is in evidence before the Court:
a)A bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
b)The affidavits of the first and second applicants each made on 28 April 2015.
c)The affidavits of the first and second applicants each made on 16 July 2015.
d)The affidavit of Clyde Ernest Hungerford, Manager, made on 22 February 2017.
Background
The applicants are wife and husband. The first applicant is a national of Pakistan. She arrived in Australia on 28 February 2008 as the holder of a student visa (CB 135).
The second applicant is a citizen of India. He arrived in Australia on 23 June 2009 also as the holder of a student visa (CB 135).
The applicants married in Australia on 25 August 2013 (CB 13 and CB 29). They applied for protection visas on 23 July 2014. Their claims to protection were that they would be harmed on return to India because the second applicant had converted to Islam and married the first applicant who was a Muslim.
In that application, the first applicant indicated at part “B” of the application form, that all written communications in relation to the application should be sent to her (see question 21 at CB 9). Only the first applicant completed part “B” as part of the application.
The first applicant provided both a residential address, which was also the relevant postal address, and an email address at part “C” of the application (see question 17 at CB 29 and question 20 at CB 30). The first applicant agreed to the Minister’s department communicating with her by email at the address she had provided. In his part “C” form, the second applicant provided the same residential and postal address (see question 17 at CB 13). The second applicant also provided an email address (see question 20 at CB 14).
The delegate acknowledged the validity of the application by letter dated 18 August 2014 and sent to the residential/postal address specified by the first applicant in her application (see above at [7]). There is no evidence this letter was sent as an email attachment. The letter also requested both applicants to provide certain information (CB 93 to CB 103).
By two letters, both dated 20 January 2015, the delegate invited each applicant to attend the same scheduled interview before the delegate. The evidence before the Court reveals that the letters were sent by registered post to the residential/postal address provided by both applicants in their part “C” forms (CB 104 and CB 113). The evidence reveals that both letters were returned to the Minister’s department on 13 February 2015. The words “not at address” were written on the envelopes (CB 143 to CB 151 and CB 152 to CB 160).
The applicants did not attend the interview before the delegate. The delegate refused the application for the visas. The Minister submits that the delegate sent notification of the decision by registered post to the same residential address as provided by the applicants in their protection visa application (see [7] above )(CB 124 to CB 142).
The evidence indicates that the first applicant contacted the Minister’s department on 20 March 2015. A departmental officer advised her that the notification of the delegate’s decision had already been sent to the applicants (CB 181). By email sent on 23 March 2015, the second applicant advised the Minister’s department that the applicants had not received either the letters inviting them to an interview, nor the notification of the visa refusal (CB 203 to CB 204).
In the meantime, on 20 March 2015, the applicants had also lodged an application for review of the delegate’s decision with the Tribunal (CB 215 to CB 234). They provided the same address for service as they had provided in their protection visa application, and to which the correspondence from the Minister’s department had purportedly been directed. They also provided the first applicant’s email address.
On 27 March 2015, the Tribunal wrote to the applicants by letter sent by email to the first applicant’s email address, inviting their comment on the validity of the application for review. The Tribunal noted that it was of the view that the application for review had not been lodged within the relevant time limit (CB 247).
The applicants responded by email on the same date. The email contained a number of attachments. In essence, the applicants’ position was that they had not received the letter of notification of the delegate’s decision, and had been first advised of the delegate’s decision by email on 20 March 2015 (CB 249 to CB 257).
The Tribunal found that it did not have jurisdiction to review the delegate’s decision (CB 307 to CB 308). The Tribunal noted that pursuant to s.412(1)(b) of the Act, and reg.4.31 of the Migration Regulations 1994 (Cth) (“the Regulations”), an application for review of the relevant decision had to have been made “within 28 days after the applicants were notified of the [delegate’s] decision in accordance with the statutory requirements” ([2] at CB 308).
The Tribunal stated that the “material before [it] indicate[d] that the applicants were notified of the [delegate’s] decision by letter dated 9 February 2015” and that this letter had been “dispatched by post” ([3] at CB 308). The Tribunal was satisfied that notification had been effected in accordance with the statutory requirements.
The Tribunal found that in accordance with s.494C of the Act, the applicants were taken to have been notified of the delegate’s decision on 18 February 2015. The prescribed period within which to make their application for review therefore ended on 18 March 2015. As the Tribunal did not receive the application for review until after that date, it had no jurisdiction in this matter ([4] at CB 308).
The applicants applied for judicial review to this Court on 29 April 2015. That application was prepared by a lawyer. The applicants filed, and now rely on, an amended application made on 17 July 2015, also prepared by a lawyer.
That application seeks orders that both the decision of the delegate and the decision of the Tribunal be quashed, and an order directed to both to determine the application according to law.
There are 10 grounds of the amended application. They are in the following terms:
“1. The decision maker and/or the Department of Immigration failed to adequately and properly notify the applicants of an invitation to a protection visa interview. The Department of Immigration claimed to have sent an invitation letter to [the second applicant] on 20 January 2015 by a registered post with the tracking number: 492812033015. However this mail according to Australia Post investigation was returned to the sender on 11 February 2015 ‘as it appears the article may have been addressed incorrectly.’
2. The fact that the invitation to protection visa interview was returned to the Department of Immigration undelivered and the decision maker still went ahead to make a decision on the application without contacting the applicants by email means that the Department of Immigration failed to grant the applicants an interview to substantiate the claims they made in their written protection visa application.
3. The Department of Immigration failed to make reasonable enquiries as to the non-response and absence of the applicants to the supposed interview even after the mails were returned undelivered.
4. The Department of Immigration breached their duty of procedural fairness by refusing the applicant’s application even when the invitation to interview sent by registered mail was returned undelivered. Their failure to notify the applicants of both the interview and the refusal decision by email which is the applicant’s preferred method of correspondence is a breach of procedural fairness.
5. It was unreasonable for the Department of Immigration to refuse the applicant’s application without granting them a hearing and not using an alternative mode of communication to contact the applicants after the mails were returned undelivered.
6. The Department of Immigration acted unreasonably when it continued to send its decision of refusal notification even after the invitation for protection visa interview sent by postal mail was previously returned undelivered.
7. The Department of Immigration failed in its duty to take account of relevant considerations and ignore irrelevant ones by its refusal of the applicant’s application because of the applicant’s absence at the interview.
8. The Refugee Review Tribunal misinterpreted section 494B of the Migration Act 1958. Registered post is not the only means of communication identified in this provision. After the applicants lodged their application the Department sent both the acknowledgment and invitation to provide personal identifiers by email to which the applicants responded. There is a reasonable expectation that the Department of Immigration would send subsequent correspondence by email.
9. The Refugee Review Tribunal failed to properly apply section 494C of the Migration Act 1958 to the applicants’ case. An applicant would not be taken to have received a document from the Minister if the documents were returned undelivered.
10. The refusal decision by the Department of Immigration and the Refugee Review Tribunal amounts to a breach of the duty to take account of relevant considerations and ignore irrelevant ones as the decision were not for lack of UN Convention reason.”
[Errors in original.]
Both parties filed written submissions before the hearing (the applicants’ submissions were filed on 13 February 2017). At the hearing on 16 February 2017, the applicants were represented by counsel, instructed by a solicitor. The Minister was represented by a solicitor. With great respect to the applicants’ legal representatives, it became apparent that it was appropriate to adjourn the hearing for a reasonable period to enable them to properly acquaint themselves with the relevant law, and for the applicants to give further instructions.
The applicants’ legal representatives subsequently withdrew. At the resumption of the hearing on 2 March 2017, the applicants appeared in person. They had also filed further written submissions on 23 February 2017 and 28 February 2017, which also appear to have been drafted, at least initially, by counsel.
The applicants sought to rely on the written submissions prepared by them and dated 28 February 2017. Although it is of assistance to also address the “first” written submissions filed on 13 February 2017.
To a large extent, the written submissions of 28 February 2017 repeated arguments set out in written submissions filed previously (that is, 23 February 2017) and prepared by their counsel. These submissions are dealt with below in the consideration of the applicants’ grounds which were prepared by their legal representatives. They suffer from the same difficulties as discussed with counsel at the first occasion of the hearing on 16 February 2017.
In oral submissions, the applicants did raise one additional point concerning the notification of the delegate’s decision that is also addressed below. However, as the applicants did not formally abandon the grounds of their amended application, it is therefore appropriate to consider those grounds, even though their oral submissions did not address them.
The applicants’ “first” written submissions filed on 13 February 2017 identify three complaints, or issues, which arise from the grounds of their amended application.
First, a denial of procedural fairness by the delegate who proceeded to determine the application without affording the applicants the opportunity to be heard at an interview. Second, that the delegate was unreasonable in the circumstances, in proceeding to determine the matter in the absence of the applicants. The complaint, in large part, stems from what is said to be the failure of the delegate to then send the invitation to interview by email, instead of by post, in circumstances where the invitation that was sent by post, was returned to the Minister’s department. The applicants claim this was also in circumstances where email was their preferred method of correspondence. This complaint is reflected in grounds 1 to 7 of the amended application. Third, the Tribunal fell into jurisdictional error because it failed to properly apply s.494C(7) of the Act.
The applicants, initially through their counsel, have filed lengthy written submissions and made further oral submissions. The applicants have not addressed or explained the operation of ss.476(2), 476(4)(a) or 476(4)(b) of the Act.
In short, this Court has no jurisdiction to review the delegate’s decision. That decision is a “primary decision”, because even if the application for review to the Tribunal had been made within time, it was a decision reviewable by the Tribunal, and therefore caught by s.476(4)(a) of the Act. If the application for review was not made within time to the Tribunal, it is still caught by s.476(4)(b) of the Act.
Grounds 1 to 7 of the amended application cannot be made out.
The complaint, as pleaded in grounds 8, 9 and 10 of the amended application, take issue with the Tribunal’s determination that it did not have jurisdiction to review the delegate’s decision.
It must be said at the outset that in part (that prepared by their previous counsel), the applicants’ argument here proceeds from a proposition that may, historically, have been arguable, but has not been available for some time. The position now is that the time for the making of the application for review to the Tribunal commences from the date the applicants are taken to have received notification of the delegate’s decision, not actual notice, so long as the Minister has complied with all the relevant statutory and regulatory requirements for the giving of such notice.
The issue before the Court is whether the Tribunal was correct in its determination that it did not have jurisdiction to review the delegate’s decision. This is a jurisdictional fact for the Court to determine (Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172).
As is clear from the above, the grounds of the amended application and the applicants’ arguments in support, direct attention to the relevant statutory scheme. The relevant provisions of the Act and the Regulations are as follows.
Section 66(1) and (2) of the Act at the relevant time were in the following terms:
“Section 66
Notification of decision
| (1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way. |
| (2) Notification of a decision to refuse an application for a visa must: |
| (a) | if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa--specify that criterion; and |
| (b) | if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa--specify that provision; and |
| (c) | unless subsection (3) applies to the application--give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and |
| (d) | if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500--state: (i) that the decision can be reviewed; and (ii) the time in which the application for review can be made; and (iii) who can apply for the review; and (iv) where the application for review can be made.” |
Regulation 2.16(1) and (3) of the Regulations at the relevant time were in the following terms:
“Regulation 2.16
Notification of decision on visa application
(1) For subsections 66(1) and 501G(3) of the Act (which deal with giving notice of decisions), this regulation sets out the way of notifying a person of a decision to grant or refuse to grant a visa.
…
(3) The Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act.
Note: If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.”
Section 494B(1) and (4) of the Act at the relevant time were in the following terms:
“Section 494B
Methods by which Minister gives documents to a person
(1) Coverage of section
For the purposes of provisions of this Act or the regulations that:
(a) require or permit the Minister to give a document to a person (the recipient); and
(b) state that the Minister must do so by one of the methods specified in this section;
the methods are as follows:
…
(4) Dispatch by prepaid post or by other prepaid means
Another method consists of the Minister dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or other prepaid means; and
(c) to:
(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; or
(iii) if the recipient is a minor -- the last address for a carer of the minor that is known by the Minister.”
Section 494C(1) and (4) of the Act at the relevant time were in the following terms:
“Section 494C
When a person is taken to have received a document from the Minister
(1) This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A).
…
(4) Dispatch by prepaid post or by other prepaid means
If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in Australia -- 7 working days (in the place of that address) after the date of the document; or
(b) in any other case -- 21 days after the date of the document.”
The Tribunal’s decision record only makes specific reference to some parts of the relevant statutory scheme. It is silent on the others. This requires the Court to consider the entirety of the relevant evidence to determine whether any of those parts of the statutory scheme, not referenced by the Tribunal, may nonetheless reveal that its determination by omission contained some legal error.
As the Tribunal set out at [2] (at CB 308) of its decision record, s.412(1)(b) of the Act and reg.4.31 of the Regulations (relevantly, reg.4.31(2) of the Regulations), provide that an application for review of the delegate’s decision must be made within 28 days of when the applicant received notification of the delegate’s decision. However, the Tribunal’s findings at [3] (at CB 308) that “the applicant[s] [were] notified of the [delegate’s] decision in accordance with the statutory requirements”, is directed to only some parts of the statutory and regulatory scheme.
Section 66(1) of the Act is the starting point of such requirements, there stating that notification of a refusal to grant a visa must be done in the “prescribed way”. This prescription is set out in reg.2.16(3) of the Regulations. Regulation 2.16(3) of the Regulations sets out that notification must be undertaken by “one of the methods specified in section 494B of the Act”.
There is no reference in the Tribunal’s decision record to ss.66 or 494B of the Act. Section 66(2) of the Act states that a notification letter must contain certain information. There is no mention of this requirement in the Tribunal’s decision record.
As to the letter itself, having regard to the evidence before the Court, I note that the delegate’s letter of 9 February 2015, notifying the applicants of the delegate’s decision, complied with the relevant statutory and regulatory requirements (CB 124 to CB 127). The letter specified the relevant criteria that the applicants did not satisfy (see CB 124), gave written reasons for this (CB 134 to CB 142), and set out the applicants’ review rights, and told the applicants where to apply for review (CB 125).
It must also be said that the Tribunal’s decision record is brief. Obviously, that in itself does not reveal legal error. However, what can also be said, and I take judicial note of Tribunal decision records concerning “no jurisdiction” cases often before this Court, is that the Tribunal’s approach to the question of its jurisdiction, as revealed in its decision record, is formulaic.
Given the concerns raised orally by the applicants before the Court (which are addressed specifically below), the question arises whether the Tribunal gave proper consideration to the material before it, and in particular, to all of the relevant material before it, in reaching the determination that it did not have jurisdiction to review the delegate’s decision.
The applicants drew attention to annexure “A” to the affidavit of Mr Hungerford. Mr Hungerford’s evidence is that, as the manager of the postal service provider (“Converga”) engaged by the Minister’s department, the relevant correspondence dispatch records, that is, a “spreadsheet”, or as described by the Minister before the Court, a “log”, including the date and address details of the recipient, reveals a registered post entry on 10 February 2015. This is said to be evidence that correspondence was sent to the applicants on that date.
The context for this is that the delegate’s decision was made on 9 February 2015. The applicants did not dispute this. As was made clear, the Minister sought to rely on Mr Hungerford’s evidence to submit that the letter notifying the applicants of the delegate’s decision was sent by registered post on 10 February 2015.
A copy of that letter of notification is at annexure “B” to the affidavit of Mr Hungerford. Mr Hungerford’s evidence with reference to the “barcode number” appearing on the face of the letter, and the same barcode number correspondingly found in the “spreadsheet”, was that the letter of notification was sent to the applicants.
To further support that evidence, Mr Hungerford’s affidavit also annexes a copy of a “Contract Mailing Statement” at annexure “C” issued by Australia Post on 10 February 2015, which relates to all correspondence sent by the Minister’s department on that date.
The applicants’ submission is that annexure “A”, which Mr Hungerford says contains information relevant to them, contained the “wrong spelling” of the first applicant’s name.
It is the case that the “spreadsheet” at annexure “A” to the affidavit of Mr Hungerford reveals that the surname of the first applicant is incorrectly spelt. The first applicant’s surname contains six letters. The name in the spreadsheet contains a surname with six letters, however, there is a “b” as the third letter, whereas the first applicant’s surname is spelt with an “r” as the third letter.
The applicants submitted that the incorrect spelling was “recorded from the actual content of the envelope on Court Book [page] 161”. That envelope has no addressee name or address on it. It contains an envelope “window”. I ultimately understood the argument to be that the copy of the envelope reproduced to the Court at Court Book page 161 (which the Minister says contained the letter of notification of the delegate’s decision), should be compared with a copy of the envelope at Court Book page 104 which did have the name and address of the addressee (the first applicant, correctly spelt) on it. The applicants also referred to the envelope at Court Book page 113, which contains a similar envelope to that at Court Book page 104, but addressed to the second applicant.
In this circumstance, the applicants argued that the Court should not be satisfied that this envelope actually contained the letter of notification.
The applicants further argued that they interrogated an Australia Post website which revealed that in the case of a registered post item, Australia Post “always” leaves a “collection slip” at the relevant address, and “holds the registered post in the nearest post office for collection for up to 10 business days”. Further, the applicants submitted that they were told by an Australia Post “manager” that some “error” may have occurred. The applicants pointed to an email the second applicant received from a “Customer Sales & Service” representative from Australia Post on 8 July 2015 which indicated that “the article may have been addressed incorrectly” (see the affidavit of the second applicant made on 16 July 2015 at annexure “A”, the affidavit of the first applicant made on 16 July 2015 at annexure “A” and see also [21](b) of the applicants’ written submissions filed on 28 February 2017).
The envelope was, given the relevant stamp on its face, returned to the Minister’s department on 13 February 2015. That is, the applicants submit that it was returned within three days of posting and therefore could not have been held at the post office for 10 days. On this basis, the Court could not be satisfied that the envelope reproduced at Court Book page 161 actually contained the letter of notification of the delegate’s decision.
A number of matters emerge. First, whatever may be said to be on an Australia Post website (which is not, in any event, in evidence before the Court), can only go so far as to say what Australia Post practices may have been. It does not provide a basis to establish what relevantly occurred in the applicants’ case. Second, it is clear, and it was accepted by the Minister before the Court, that the first applicant’s name was, by one letter, incorrectly spelt in the “log” provided by Mr Hungerford (see the affidavit of Mr Hungerford at annexure “A”).
However, the incorrect spelling of the first applicant’s name (by one letter) on the Converga “log” (see the affidavit of Mr Hungerford at annexure “A”), does not, in the circumstances, necessarily mean that the letter of notification was misdirected because of any such misspelling.
On the evidence of Mr Hungerford, the Converga “log” was created by a “Converga employee” ([4] of the affidavit of Mr Hungerford). The letter of notification was drafted by, and signed by, the delegate (see the signature block at CB 127). The name of the addressee, as it appears on the face of that letter, was the name of the first applicant with the correct spelling (CB 124).
On a reasonable view of the evidence before the Court, that letter was placed in the envelope of which the “front” aspect is reproduced at Court Book page 161. That envelope contained a “window”. It is reasonable to assume, given the use to which such envelopes are put, that the letter of notification folded in the appropriate way, would show the name and address of the applicant on the letter through the window.
The hand written notation appearing on the face of the envelope, “not at address”, would appear to indicate that the name and address were visible through the “window”.
Third, the relevant postal log entry has a postal number entered on it, (“997951002455487010”) (see the affidavit of Mr Hungerford at annexure “A”). The Minister submitted that that number, absent the first four numbers (that is, “9979”) corresponded with the number on the registered post label which appears on the copy of the letter of notification reproduced at Court Book page 124 (that is, “51002455487010”).
The Minister also drew attention to the copy of the envelope at CB 161, and highlighted that the same registered post number appears there as appears on the letter of notification at Court Book page 124. The last page of that letter (at CB 142) reveals that this page is part of the letter of notification of the delegate’s decision. This is the same letter as reproduced at Court Book page 162 to 180.
The Minister’s submission was that a reasonable inference can be drawn that the notification letter reproduced at Court Book page 124, which contains a registered post label, was a copy of the letter of notification retained on the Minister’s departmental file. The original letter of notification had been placed in the envelope reproduced at Court Book page 161 (with the same registered post number but no label) and that the letter reproduced at Court Book page 162 (without a registered post label) was therefore the original letter of notification that was sent to the applicants and returned to the Minister’s department.
The evidence of Mr Hungerford is problematic in two ways. One, the spelling of the first applicant’s name on the Converga “log” is incorrect, in the way set out above (at [51]). However, the address recorded there is the address given by the applicants as their address for service.
Nonetheless, I agree with the Minister that on the evidence, the Converga “log” is not necessarily evidence of what was written on the notification letter, as the name and address of the first applicant. The “log” is a business record which was created, on the evidence, by a “Converga employee”, and not the delegate of the Minister.
The incorrect spelling of the first applicant’s name is reflective of what occurred in relation to the creation of that particular business record. Of greater weight is the correct spelling with the correct address on the letter of notification, as reproduced at Court Book page 124 and Court Book page 162.
In the circumstances presented, and on the evidence before the Court, it is reasonable to infer that the letter of notification of the delegate’s decision was sent to the applicants at their nominated address for service, and subsequently returned as not having been received by them.
Therefore, Mr Hungerford’s evidence is limited to supporting a factual finding that a letter was posted to the applicants’ nominated address on 10 February 2015. That the letter of notification was addressed to the first applicant, is to be reasonably inferred by who appears as the addressee at Court Book page 124 and Court Book page 162, and in the context that the same registered post number appears at Court Book page 124 and Court Book page 161.
The second problem with Mr Hungerford’s evidence is that the number in the Converga “log” contains 18 digits. The Minister’s argument was that this series of numbers provides the link with the registered post number, as it appears on the registered post label on the face of the letter of notification (CB 124), and the envelope in which the letter was said to have been sent to the applicants (CB 161).
The difficulty however, is that the registered post number as it appears on the letter of notification and the envelope (at CB 124 and CB 161 respectively) has 14 not 18 digits. The first four digits in the Converga “log” do not derive from the registered post label. There is nothing in Mr Hungerford’s evidence to explain this. Nor was any explanation proffered in submissions.
However, the sequence of digits from the fifth to eighteenth digits as they appear in the Converga “log”, are identical to what appears on the registered post label. On balance, this is sufficient to find that there is a link between the Converga “log” entry, and the envelope with the letter of notification sent to the applicant.
In resolving this issue, regard must be had to other relevant evidence before the Court. As set out above, the delegate had previously invited the applicants to an interview. The applicants say they also did not receive this invitation.
A copy of a letter of invitation to the interview is reproduced at Court Book page 105 to 112 (with annexures). It is addressed to the first applicant at the address provided for receiving correspondence (CB 29). It is dated 20 January 2015, and the “[t]ransmission [m]ethod” is noted as “[p]ost” (CB 105). An identical letter is reproduced at CB 114 to CB 121. It is addressed to the second applicant.
Reproduced at Court Book page 104 is an envelope with postal details dated 20 January 2015, with the first applicant’s name and address. The details include a registered post label with a particular identity number of 12 digits.
Reproduced at Court Book page 143 is an envelope with a registered post label on it which contains a number corresponding to the registered post number at Court Book page 104.
It is important to note a number of features of the envelopes reproduced at Court Book page 143 (with reference to the letter of invitation to the interview), and Court Book page 161 (with reference to the letter of notification of the delegate’s decision).
The first envelope (at CB 143), contains a postal stamp dated 21 January 2015. This can be said to provide a consistent sequence given the date of the letter of invitation to the interview (20 January 2015), to reasonably say that the letter was sent in that envelope.
The second envelope (at CB 161) contains a postal stamp dated 10 February 2015. This can be said to correspond with the date of the letter of notification of the decision (9 February 2015), and as set out in the Converga “log” (10 February 2015).
Both envelopes contain a handwritten notation “not at address”, with what appears to be a handwritten set of initials. Both have an “immigration received” stamp dated 13 February 2015.
In light of this evidence, it is reasonable to assume, given that there is evidence that the letter of notification was returned to the Minister’s department, that the letter was sent on 10 February 2015.
While the circumstances are not entirely clear, what can be said, on balance, is that on the evidence, although the letter of invitation to interview was sent earlier than the letter of notification, it was returned to the Minister’s department on the same day as the letter of notification of the delegate’s decision.
Before the Court, the applicants raised a number of submissions in light of this evidence.
First, the applicants pointed to Court Book page 161 and submitted that the registered post label appears to have been placed over the immigration receipt date stamp. At first glance, and on one perspective, it is possible to understand the basis of the applicants’ submission. The receipt stamp is circular and the circle appears to “break” at the two points it “abuts” the registration label.
However, a more reasonable chronology is presented when regard is had to the various dates actually found on the envelope at Court Book page 161. The postal stamp (“SWLF NSW FM[unclear] 10 FEB 15 2[unclear]”) clearly dated 10 February 2015, would reasonably indicate that the envelope (containing the letter of notification), was received at the relevant postal office on that date.
The handwritten notation would necessarily indicate that the letter was delivered to the address on the letter, and consistent with the Converga “log”, being the applicants’ address for service, at least on 11 February 2015. It was then returned (as was the letter of invitation to the interview) to the Minister’s department on 13 February 2015.
In this light, on balance, and on closer examination, given that a part of the circumference of the immigration receipt stamp appears to be on top of the registered post label (notwithstanding what appears at first glance), the applicants’ submission in relation to the receipt stamp does not assist their case.
Second, the applicants referred the Court to their response to the Tribunal’s invitation of 29 March 2015, to comment on the validity of their application for review. The relevant part of that response is at Court Book page 250 to 251.
The applicants stated (at CB 250):
“On [address] [sic] we were living in a granny flat which is situated in back yard of the main property and we believe that post man must had knocked on main house and no one was home or maybe he had left a slip to collect the post from post office. Which we never received. Due to our residential condition we had faced non-delivery of post before hence we prefer to be contacted via email.”
[Errors in original.]
There appeared to be two limbs to the applicants’ argument before the Court. First, the applicants submitted that they did not actually receive the letter of notification of the delegate’s decision. In their submissions to the Tribunal, the applicants relied on a number of authorities in support of the proposition that actual receipt is required (Kaur v Minister for Immigration and Border Protection [2014] FCA 915; (2014) 236 FCR 393 (“Kaur”), Wilson v Minister for Immigration and Citizenship [2012] FCA 1421; (2012) 133 ALD 60, Yelaswarapu v Minister for Immigration & Anor [2012] FMCA 849 and WZAPN v Minister for Immigration and Border Protection [2014] FCA 947; (2014) 229 FCR 477 (“WZAPN”)).
That proposition, as set out further below, cannot be accepted. The authorities on which the applicants rely do not assist them. Wilson v Minister for Immigration and Citizenship [2012] FCA 1421 is concerned with a different statutory context. The circumstances in Yelaswarapu v Minister for Immigration & Anor [2012] FMCA 849 do not exist in the current case, as the applicants did provide a residential address to which correspondence could be sent. WZAPN was the subject of consideration on appeal by the High Court (Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection [2015] HCA 22; (2015) 254 CLR 610). In any event, it is difficult to see how that case (even at the Federal Court level) assists them now.
The second limb of their argument can be seen to draw some support from Kaur, the other case referred to in the applicants’ submissions to the Tribunal. However, the factual scenario in the current case can be clearly distinguished.
In that case, the Tribunal’s exercise of its power pursuant to s.362B(1) of the Act was found to be legally unreasonable in circumstances where the history of dealings between the applicant and the Tribunal was such that the applicant’s non-response to a second invitation to a hearing, was inconsistent with the applicant’s and the Tribunal’s previous dealings. In that case, the applicant’s non-response was “unusual behaviour” in the context that there had been an “established pattern” over a considerable period of time (see Kaur at [50] – [51]).
The circumstances of this case are distinguishable. On the evidence, the letters inviting the applicants to an interview were returned to the Minister’s department on the same day as the letter of notification of the delegate’s decision (13 February 2015). The delegate therefore could not have reasonably known that the letter of invitation to the interview had not been received by the applicants, as at the time of the dispatch of the letter of notification of the delegate’s decision to the same address.
The applicants have provided evidence that some of the Minister’s departmental dealings with them have been by email. Both applicants’ affidavits of 16 July 2015, reveal that some communication by email was made by administrative officers within the Minister’s department.
However, the acknowledgement of the application for the visas was addressed to the applicants’ residential address (CB 93), as was the invitation to the interview. The distinguishing feature between the acknowledgement letter, the interview invitation, the notification letters and the emails from the administrative officers, was that letters sent by post appear to have been used during the time of the processing of the application for the visas.
This was consistent with the advice provided by the applicants that receiving communication from the Minister’s department was to be directed to them (CB 9), and both applicants provided the residential address for that purpose. The communications by email all occurred after the delegate had made the decision.
In his submissions before the Court, the Minister also sought to explain the reference in an email dated 20 March 2015 from a departmental administrative officer, to the first applicant, that states that the letter of notification of the delegate’s decision was sent to the applicant on “24 February 2015” (CB 181). The Minister submitted before the Court that this was a “typographical error”.
The reference to “24 February 2015” is not supported, and is in fact contradicted by all the other evidence, as to when the letter of notification of decision was dispatched. Further, the letter makes reference to attaching “a copy of the original notification letter”. That correspondence contains the date of 9 February 2015, and not 24 February 2015.
Nor, given what is set out below in relation to s.494C of the Act, can this email, and a copy of the letter of notification, be said to constitute some later notification that “extends” the time within which the applicants could have made an application to the Tribunal.
While no explicit reference is made to s.494B of the Act in the Tribunal’s reasons for decision, relevantly, the evidence that was before the Tribunal shows that the applicants were notified of the decision by a method that was set out in s.494B of the Act. In particular, “dispatch by prepaid post”. Section 494B(4) of the Act provides that the document must be dated and dispatched within three working days, to the last address for service provided to the Minister, by the applicants, for the purpose of receiving documents.
The evidence before the Tribunal was that the letter was dated 9 February 2015, and dispatched by registered post to the applicants at their residential address the next day, which was provided by the applicant to the Minister on 23 July 2014 for the purpose of receiving correspondence.
While the Tribunal’s decision record does not set out the requirements under s.494B of the Act, I find, on balance, that the references to the notification letter of 9 February 2015, and to the prescribed period pursuant to s.494C of the Act, are sufficient to say the Tribunal implicitly included this section (s.494B of the Act) in its consideration. That is, it is part of the rationale for its finding under s.494C the Act, that the letter was sent “in accordance with the statutory requirements” ([3] at CB 308).
The evidence before the Tribunal, and now the Court, reveals that the notification of the delegate’s decision was sent by registered post. The registered post label and relevant number are reproduced on the face of the letter (CB 124). Registered post has been held to be a form of prepaid post (Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 377; (2000) 98 FCR 77 at [29] and SZOBI v Minister for Immigration and Citizenship (No 2) [2010] FCAFC 151; (2010) 119 ALD 233 at [13]).
I find that the letter of notification was posted to the applicants at the residential address they provided on 10 February 2015. The delegate therefore complied with s.494B(4)(a) of the Act which requires such a document to be dispatched within three working days of the date of the letter.
Section 494C(4) of the Act is not specifically mentioned in its decision record, but the Tribunal clearly relied on this subsection as it has referred to the letter of 9 February 2015, which had been sent by post on 10 February 2015. As stated above, the applicants were taken to have been notified of the decision in accordance with s.494C(4)(a) of the Act, seven working days after the date of the letter, that is, 18 February 2015. I agree with the Minister’s submission that it is not relevant whether or not the applicants actually received the letter (MZZDJ v Minister for Immigration and Border Protection [2013] FCAFC 156; (2013) 216 FCR 153 and SZNZL v Minister for Immigration and Citizenship [2010] FCA 621; (2010) 186 FCR 271).
As the Tribunal identified, s.412(1)(b) of the Act, and reg.4.31 of the Regulations govern the prescribed period within which the applicants should have made the application for review. There is no legal or factual error in the Tribunal’s calculation that the 28 day period ended on 18 March 2015, and the subsequent finding that it did not have jurisdiction to review the delegate’s decision in circumstances where no application for review had been made to it within the prescribed period.
Further, I note the Minister’s written submissions at [17.1] – [17.2] as follows:
“[17.1] It was open to the delegate to use any one of the methods provided for in section 494B of the Act to notify the applicants of its decision to refuse their visa applications.[1] Further, even though the applicants provided an email address, there was no requirement on the delegate to send any of the correspondence electronically.[2] Consequently, the delegate was entitled to send communication by mail and, for the purpose of section 494B(4)(c)(i), the last address provided by the applicants was the address at Narwee.[3]
[17.2] Therefore, the first respondent submits that the delegate was not required to notify the applicants of the decision to refuse the visa applications by email and accordingly, the RRT did not misapply section 494B.”
[Footnotes renumbered.]
[1] Haque v Minister for Immigration and Citizenship (2010) 114 ALD 547 at [64] per Gilmore J.
[2] Ibid; See also Minister for Immigration & Border Protection v Kim [2014] FCA 390 (Kim) at [43] per Buchanan J.
[3] Kim at [46].
I agree with the Minister’s submissions. The evidence before the Court reveals that on the material that was before the Tribunal, there is no legal error in the Tribunal’s consideration of the relevant date by which an application for review needed to have been made. It was open to the Tribunal to find that the application was not made within the prescribed period.
The Tribunal had no discretion to extend time. Therefore, the Tribunal had no jurisdiction to review the delegate’s decision (SZRLH v Minister for Immigration and Citizenship [2013] FCA 384, NACG v Minister for Immigration and Multicultural Affairs [2002] FCAFC 173 and Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324; (2000) 97 FCR 407).
Section 494C(7) of the Act at the relevant time was in the following terms:
“Section 494C
When a person is taken to have received a document from the Minister
…
(7) If:
(a) the Minister purports to give a document to a person in accordance with a method specified in section 494B (including in a case covered by section 494A) but makes an error in doing so; and
(b) the person nonetheless receives the document or a copy of it;
then the person is taken to have received the document at the times mentioned in this section as if the Minister had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.”
Although not entirely clear, the argument before the Court appeared to be that s.494C(7) of the Act refers to an “error” in the giving of a document by the Minister to a person, and in this case, the delegate therefore made an error.
The applicants have misconceived the operation of s.494C(7) of the Act. Plainly, that section seeks to cure the situation where an “error” has occurred in the giving of a document by the Minister, but the person in any event receives the letter. In essence, the subsection operates in favour of the Minister to preserve the situation of a successful giving of the document by the Minister to the person even though there has been some “error” in the giving (see Cheng v Minister for Immigration and Citizenship [2011] FCA 1290; (2011) 198 FCR 559 at [26] and Rana v Minister for Immigration and Border Protection [2014] FCA 1233).
In any event, for the reasons already set out above, there was no error in the delegate’s “giving” of the notification letter to the applicants. In the circumstances, I agree with the Minister that s.494C(7) of the Act is of no assistance to the applicants. Ground two therefore is not made out.
Conclusion
The Tribunal found that it did not have jurisdiction to review the delegate’s decision. For the reasons that are set out above, there is no error in the Tribunal’s determination in this regard. The application made to the Court should be dismissed. I will make the appropriate order.
I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 3 July 2017
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