ASE15 v Minister for Immigration
[2015] FCCA 2581
•17 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ASE15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2581 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – whether the Tribunal had jurisdiction to hear the matter – whether the Tribunal erred in finding it did not have jurisdiction – prescribed period in which application for review can be made – whether applicant had notified Department of change of address – Tribunal mistaken in holding it had no jurisdiction – application allowed. |
| Legislation: Migration Act 1958 (Cth), ss.66(1), 412, 476, 494A, 494B, 494C. Migration Regulations 1994, reg.431. |
| H v the Minister for Immigration and Multicultural Affairs (2002) 118 FCR 153 Minister for Immigration and Citizenship v Manaf (2009) 111 ALD 437 MZZDJ v Minister for Immigration [2013] FCAFC 156 |
| Applicant: | ASE15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 197 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 17 September 2015 |
| Date of Last Submission: | 17 September 2015 |
| Delivered at: | Sydney |
| Delivered on: | 17 September 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Mr T Savu |
| Counsel for the Respondents: | Mr R J S French |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The third applicant is removed as party to these proceedings.
A writ of certiorari shall issue removing the record of the Refugee Review Tribunal decision made on 2 April 2015 and that decision is quashed.
A writ of mandamus shall issue requiring the Administrative Appeals Tribunal to review application of the first, second and fourth applicants of the decision of the delegate made on 14 January 2015 before it according to law.
The first respondent pay the applicants’ costs fixed in the sum of $6825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 197 of 2015
| ASE15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 2 April 2015, holding that the Tribunal did not have jurisdiction in the matter. At the commencement of the proceedings, the solicitor for the applicants confirmed that there were separate proceedings on foot for the third applicant relating to the same decision. It was in those circumstances that the Court made an order removing the third applicant as a party to the proceedings.
The Tribunal noted, pursuant to s.412(1)(b) of the Act and reg.431 of the Migration Regulations 1994, an application for review of the decision of the delegate had to be made within 28 days after the applicant was notified of the decision in accordance with the statutory requirements. The Tribunal held that the material date in relation to notification of the first, second and fourth applicants was the dispatch of a letter dated 14 January 2015. The Tribunal wrote to the applicants on 11 March 2015 informing them that the application appeared to be out of time.
The Tribunal noted that the first applicant said that on 4 February, she had received a phone call from the Department who advised her that the Department had sent the decision to her previous address and had been returned, and that the applicant told the officer that she had changed her address. The officer informed the applicant they had no record that she had notified of the change of address. After that phone call the first applicant said she received the decision on 16 February 2015 with the covering letter dated 14 January 2105.
The Tribunal made a finding that the decision was sent to the last address provided by the applicant on 14 January 2015. It was in those circumstances the Tribunal found that, in accordance with s.494C of the Act, the applicant had been notified of the decision on 23 February 2015and, accordingly, the prescribed period in which the review could be made ended on 20 February 2015.
The issue of whether the Tribunal had jurisdiction under s.412 involves a jurisdictional fact that this Court can determine.
SECT 412
Application for review of Part 7-reviewable decisions
(1) An application for review of a Part 7-reviewable decision must:
(a) be made in the approved form; and
(b) be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and
(c) be accompanied by the prescribed fee (if any).
There is also an obligation under s.66(1) as follows:
SECT 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
The Act provides a regime in relation to notification relevantly as follows:
SECT 494A
Giving documents by Minister where no requirement to do so by section 494B method
(1) If:
(a) a provision of this Act or the regulations requires or permits the Minister to give a document to a person; and
(b) the provision does not state that the document must be given:
(i) by one of the methods specified in section 494B; or
(ii) by a method prescribed for the purposes of giving documents to a person in immigration detention;
the Minister may give the document to the person by any method that he or she considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section).
Note: Section 494D deals with giving documents to a person's authorised recipient.
(2) If a person is a minor, the Minister may give a document to an individual who is at least 18 years of age if the Minister reasonably believes that:
(a) the individual has day-to-day care and responsibility for the minor; or
(b) the individual works in or for an organisation that has day-to-day care and responsibility for the minor and the individual's duties, whether alone or jointly with another person, involve care and responsibility for the minor.
(3) However, subsection (2) does not apply if subsection 52(3C) (which relates to giving notifications in the case of combined applications) applies in relation to the minor.
(4) If the Minister gives a document to an individual, as mentioned in subsection (2), the Minister is taken to have given the document to the minor. However, this does not prevent the Minister giving the minor a copy of the document.
SECT 494B
Methods by which Minister gives documents to a person
Coverage of section
(1) 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.
(1A) If a person is a minor, the Minister may use the methods mentioned in subsections (4) and (5) to dispatch or transmit, as the case may be, a document to an individual (a carer of the minor ):
(a) who is at least 18 years of age; and
(b) who the Minister reasonably believes:
(i) has day-to-day care and responsibility for the minor; or
(ii) works in or for an organisation that has day-to-day care and responsibility for the minor and whose duties, whether alone or jointly with another person, involve care and responsibility for the minor.
Note: If the Minister gives an individual a document by the method mentioned in subsection (4) or (5), the individual is taken to have received the document at the time specified in section 494C in respect of that method.
(1B) However, subsection (1A) does not apply if subsection 52(3C) (which relates to giving notifications in the case of combined applications) applies in relation to the minor.
Giving by hand
(2) One method consists of the Minister (including by way of an authorised officer) handing the document to the recipient.
Handing to a person at last residential or business address
(3) Another method consists of the Minister (including by way of an authorised officer) handing the document to another person who:
(a) is at the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; and
(b) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(c) appears to be at least 16 years of age.
Dispatch by prepaid post or by other prepaid means
(4) 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 by 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.
Transmission by fax, email or other electronic means
(5) Another method consists of the Minister transmitting the document by:
(a) fax; or
(b) email; or
(c) other electronic means;
to:
(d) the last fax number, email address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents; or
(e) if the recipient is a minor--the last fax number, email address or other electronic address, as the case may be, for a carer of the minor that is known by the Minister.
When the Minister hands a document by way of an authorised officer
(6) For the purposes of sections 494C and 494D, a reference in those sections to an act of the Minister includes, if the act is of a kind referred to in subsection (2) or (3) of this section, a reference to an act of the Minister by way of an authorised officer.
Documents given to a carer
(7) If the Minister gives a document to a carer of a minor, the Minister is taken to have given the document to the minor. However, this does not prevent the Minister giving the minor a copy of the document.
SECT 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).
Giving by hand
(2) If the Minister gives a document to a person by the method in subsection 494B(2) (which involves handing the document to the person), the person is taken to have received the document when it is handed to the person.
Handing to a person at last residential or business address
(3) If the Minister gives a document to a person by the method in subsection 494B(3) (which involves handing the document to another person at a residential or business address), the person is taken to have received the document when it is handed to the other person.
Dispatch by prepaid post or by other prepaid means
(4) 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.
Transmission by fax, email or other electronic means
(5) If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.
Document not given effectively
(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.
I accept that the Tribunal did on 14 January 2015 forward a letter purportedly in compliance with the notification obligation to the then-existing address for the first and second applicants. Prior to the time expiring for the first and second applicants to seek review, the first and second applicants notified the Department on 2 February 2015 of the change of address. It appears thereafter on 4 February 2015, an officer of the Department contacted the first applicant because the Department had received back the letter dated 14 January 2015 purportedly sent to the first and second applicants enclosing the notification.
The first applicant was apparently told that the Department did not have any record of the new address and it was communicated again by phone in that conversation on 4 February 2014. There is also a Department record that confirms the notification of change of address by the first and second applicants on 2 February 2105. There is no record of the conversation of 4 February 2015 on the Department records. The inference that I draw is that the letter dated 14 January 2015 was sent out again by the Department to the first and second applicants. That inference is consistent with the evidence of the first applicant that about a week after the telephone call on 4 February 2015, the first and second applicants received a letter dated 14 January 2015 enclosing the decision.
This is not a case where there was any communication from the Department in re-sending out the letter dated 14 January 2015 again, after the conversation on 4 February 2015, conveying that notification had already taken place consistent with the Act and that this was a courtesy letter or in any way drawing the applicants’ attention to the significance of the time that had already elapsed in relation to the communication sent out again, bearing the same date of 14 January 2015.
I find that the Department re-sent the letter dated 14 January 2015 shortly after the telephone call on 4 February 2015 to the first and second applicants. I find that this was a second notification by the Department of the decision of the delegate. I find that there was nothing conveyed with that second notification to inform the first and second applicants that there had already been an effective notification by operation of the terms of the statute and the earlier letter sent on 14 January 2015.
Mr French counsel on behalf of the first respondent drew attention to the notification provisions and the running of time in the document annexed to the letter dated 14 January 2015. In my opinion, that notification did not address the circumstances that existed as a result of the notification of change of address on 2 February 2015 or the conversation on 4 February 2015 in relation to the first and second applicants when the Department came to send out the second notification. It would have easily been open to the Department to identify in a covering letter that it relied upon that first notification and that time was running and that this was not a second notification under the Act.
Mr French of counsel drew attention to the statutory regime and submitted that there can only be one notification and that that is consistent with the requirements under s.494B(4) to dispatch the notification if by mail within three working days in respect of pre-paid post. Mr French of counsel, however, properly drew the Court’s attention to a decision of the Full Court of the Federal Court in H v the Minister for Immigration and Multicultural Affairs (2002) 118 FCR 153 at [9] as follows:
9. When the case came on for hearing before the tribunal, it decided that it could not determine the application, taking the view that it had been commenced out of time. The tribunal acted on the assumption that the only relevant dates were, first, the day on which the appellant was personally handed notification of the delegate's decision (26 or 27 October) and, second, the date on which the application for review was lodged (8 November). If these were the relevant dates, the tribunal correctly declined jurisdiction. But the tribunal fell into error because it paid no regard to the notification sent to the migration agent.
10. On the basis of this notification, there are two alternative bases for concluding that the application for review was within time. The first is that the notification to the migration agent was the only relevant notification of the decision, so that the application for review could be lodged at any time before 14 November. This approach assumes that once the Minister first notified the appellant of the decision, that exhausted the Minister's obligation under s66. If that be correct, any further "notifications" (for example, by personally serving the appellant with a copy of the decision), would not be notifications under the statute and would have no legal consequence. The second basis for holding the application to be within time assumes that the second notification cannot be ignored, and that it brought into operation a second timetable within which the applicant could file a notice of review. In that event the applicant has been given two inconsistent timetables within which to make application for review and, in the absence of any statutory basis for giving one priority over the other, the appellant was entitled to choose the timetable that best suited him. That is what occurred in this case, albeit the appellant did not know he was making a choice. ( emphasis added)
Mr French drew attention to the proposition that the alternative basis referred to by the Full Court was one that might be treated as an approach that was not determined by the Full Court, and he referred to what was said by Sundberg J in Minister for Immigration and Citizenship v Manaf (2009) 111 ALD 437 at 51. In essence, Mr French of counsel sought to argue that only one notification was possible under the statute, and that only one of the alternative bases identified by the Full Court in H v The Minister for Immigration could be correct.
The difficulty with this contention is that the opening sentence in the passage identified in H v The Minister says:
On the basis of this notification there are two alternative bases for concluding that the application for review was within time.
In my opinion, the Full Court approved in that regard both alternative bases as being open. In the present case, I have found that there was a second notification given to the first and second applicants. In my opinion, that squarely falls within the second alternative identified by the Full Court.
Mr French of counsel properly conceded that in the decision of the Minister v Manaf, supra, the issue of the alternative basis did not arise for determination. In these circumstances, the contention that there can only be one correct approach does not appear to me to be a binding ratio and the passage cited from the Full Court is in my opinion binding.
Accordingly, in the circumstances of this case, where the application for review was lodged on 4 March 2015, this would have been within the 28-day period required under s.412(1). In those circumstances, the Tribunal had jurisdiction in respect of the application for review by the first and second applicants.
Further, even if it were the position that only one correct approach is available in respect of notification, the notification procedure does not in my opinion exclude the principles of procedural fairness. in the present case, where the first and second applicants had notified a change of address prior to expiry of the review period and also engaged in a communication relating to the delegate’s decision within that period, in which the Department conveyed that it was forwarding the delegate’s decision again to the applicants, without identifying any covering letter, or without explaining the consequences of the time that was running in respect of the earlier date on the letter, there would be a denial of procedural fairness of a kind that would in this case give rise to a jurisdictional error in terms of the requirements under s.412(1), and the obligations under s.66(1). For those further reasons, the Tribunal, in my opinion, was wrong in holding that it did not have jurisdiction in respect of the application made by the first and second applicants.
In relation to the fourth applicant, a change of address form was formally completed and signed by the fourth applicant, dated 19 October 2014. That change of address form properly identified an address under the heading:
Applicant’s new contact details
It also provided an email notification address. The form provides a paragraph headed:
10. Effective dates for new contact details
Under that paragraph heading there was completed by the fourth applicant an insertion of the dates 15 October 2013 to 19 October 2014. In my opinion, the Department had received a proper notification within the statutory regime of a notification of change of address by the fourth applicant. There is no dispute that the notification was not sent to the correct address as identified in that notification but for the period of effective dates. The Department contended that the period of effective dates as operative notification of change if address was that which had expired on the very date of the lodgement of the change of address form.
Whilst I accept the first respondent’s submission that there can be circumstances in which there is a temporary change of address, it will not be one in which a time machine is needed for the relevant applicant. The effective dates identified could not possibly have been correct. I do not regard anything said in MZZDJ v Minister for Immigration [2013] FCAFC 156 at 31 to 33 as having any application in the present case. I find the fourth applicant had given the first respondent notification of a change of address.
There is nothing within the statutory regime that refers to the concept of effective dates for new contact details. On no view could the effective dates be retrospective. In those circumstances, there was not proper notification given in accordance with s.66(1) or s.412(1)(b) to the fourth applicant. Accordingly the Tribunal had jurisdiction in respect of the application for review in respect of the fourth applicant.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 23 September 2015
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