ASZ16 v Minister for Immigration and Border Protection

[2017] FCCA 1617

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASZ16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1617

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the applicant was informed of a decision in the prescribed way under s.66(1) of the Migration Act 1958 (Cth) – whether the Tribunal erred by finding that it had no jurisdiction to review the delegate’s decision – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 66(1), 411(1C), 412, 414, 494B, 494C, Pt.7

Migration Regulations 1994 (Cth), reg.4.31(2)

Cases cited:

Minster for Immigration & Border Protection v Singh (2016) 244 FCR 305; [2016] FCAFC 183
Minister for Immigration & Citizenship v SZMTR (2009) 180 FCR 586; [2009] FCAFC 186

SZOBI v Minister for Immigration & Citizenship (No.2) (2010) 119 ALD 233, [2010] FCAFC 151

Applicant: ASZ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 758 of 2016

Judgment of: Judge Smith

Hearing date: 30 May 2017

Date of Last Submission: 30 May 2017

Delivered at: Sydney

Delivered on: 30 May 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms N Blake, Clayton Utz

ORDERS

1. The application is dismissed. 

2. The applicant is to pay the first respondent’s costs set in the amount of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 758 of 2016

ASZ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The Administrative Appeals Tribunal (Tribunal) has the jurisdiction and duty to review a Pt.7-reviewable decision only if a valid application is made under s.412 of the Migration Act 1958 (Cth) (Act) for review of that decision: s.414 of the Act.

2. In order to be a valid application, an application for review of a Pt.7-reviewable decision must comply with s.412 of the Act. Relevantly, sub-s.412(1)(b) requires an application “to be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision”:. Where an applicant for review is not in immigration detention on the day he or she is notified of a Pt.7-reviewable decision, as was the case here, the period in which an application for review of that decision must be given to the Tribunal is 28 days, commencing on the day the applicant is notified of the decision: see reg.4.31(2) of the Migration Regulations 1994 (Cth) (Regulations). 

3. An applicant must be notified of the decision in the prescribed way: s.66(1) of the Act. There are two aspects of that notification. First, the substance of the notice and secondly, the means by which the notice is given. Notification of decision to refuse an application for a visa because of the failure to satisfy a criterion must specify the criterion which was not satisfied and give written reasons why the criterion was not satisfied: s.66(2) of the Act.

4. The notice must be given in one of the methods specified in s.494B of the Act. Relevantly s.494B(4) provides:

   Dispatch by prepaid post or 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

   …

5. If the method prescribed by s.494B(4) is adopted and the applicant’s address is in Australia, as it was here, the applicant is taken to have received the document seven working days in the place of his or her address after the date of the document: s.494C(4).

6. In Minister for Immigration & Citizenship v SZMTR (2009) 180 FCR 586; [2009] FCAFC 186, the Full Court of the Federal Court referred to the scheme of notification in the Act and said at [29] that “the purpose of that scheme is to cater for and to avoid the particular circumstances and difficulties that may occur in determining when and how a document can be taken to have been served”. These provisions are intended to achieve certainty in respect of the manner and timing of service for the purposes of the Act, including s.66. The scheme avoids potential difficulties of language, or in locating an applicant for a visa, who may have changed addresses without notifying their new one and the like.

7. If the Minister follows one of the prescribed methods of giving notice, the applicant for a visa will be taken to have been notified, in order that other mechanisms and procedures in the Act can take effect.

8. In this case, the applicant’s application for a protection visa was refused by a delegate of the Minister. The delegate was not satisfied that the applicant satisfied the criteria in s.36(2) of the Act. That was a Pt.7-reviewable decision: see s.411(1C) of the Act.

9. By letter dated 24 September 2015, the delegate wrote to the applicant, stating that a visa had been refused because of his failure to satisfy s.36(2) of the Act and enclosing a statement of reasons for that conclusion. That notice satisfied the requirements of s.66(2) of the Act.

10. The letter was dated 24 September 2015, and was addressed to the applicant at his residential address, which had been provided by the applicant in his visa application both as his residential address and his current postal address in Australia.  The letter was sent by registered post, which is a prepaid means of sending documents, on 25 September 2015. 

11. In those circumstances, notice of the decision was given to the applicant by the means prescribed by s.494B(4) of the Act. By operation of s.494C(4) of the Act, the applicant was taken to have received notice of the decision seven working days after 24 September 2015. That is 5 October 2015.

12. A valid application for the review of the delegate’s decision had to be made by 3 November 2015. The applicant lodged an application for review of the delegate’s decision on 22 January 2016, well outside the time prescribed by the Act.

13. By letter dated 2 February 2016, the Tribunal informed the applicant that it was of the view that the application was not valid because it had been filed out of time and inviting comment from the applicant.  The applicant did not reply to that invitation.  On 29 February 2016, the Tribunal decided that it did not have jurisdiction and so did not continue to review the decision of the delegate. 

14. The applicant now seeks judicial review of the Tribunal’s decision. 

15. Although there are three grounds in the application, they all amount to the assertion that the delegate failed to inform the applicant in the way required by s.66(1) of the Act because the delegate did not send the notification to his new address. The applicant relies upon the fact that, by email dated 26 September 2015, the applicant sent to the Department of Immigration (Department) a change of address form. On that form the applicant indicated that, while his residential address remained the same as it had been in his visa application, his address for correspondence was now a post office box in Campsie.  The effective date for the new contact details was said to be 28 September 2015. 

16. The difficulty for the applicant is that the delegate had already sent notice of the decision prior to the applicant informing the Department of his change of address. The requirement in s.494B(4) of the Act is to “dispatch” the notice. In this context the word “dispatch” means “to send”. See SZOBI v Minister for Immigration & Citizenship (No.2) (2010) 119 ALD 233, [2010] FCAFC 151 at [19], per Stone and Jagot JJ.

17. As I have said, the delegate dated the notice 24 September 2015 and sent it on 25 September 2015. On those days, the last address for service provided to the Minister by the recipient for the purposes of receiving documents was the applicant’s residential address. The fact that that changed later does not affect the fact that the method prescribed by s.494B(4) of the Act was complied with, and the deeming provisions in s.494C(4) operated so that the applicant was taken to have received the notice on 5 October 2015. I note in any event, that the applicant did not change his residential address and that even if he had sent the notice of change of address prior to 25 September 2015, the delegate would have complied with s.494B(4) .

18. For those reasons, the Tribunal was correct to find that an application lodged after 3 November 2015 was not a valid application and that it had no jurisdiction to review the delegate’s decision.  The ground in the application fails for that reason. 

19. In submissions the Minister pointed out that there was a certificate before the Tribunal that purported to have been made under s.438 of the Act. Evidence of that certificate and the documents to which it purported to relate was admitted. If there was a possibility that the documents the subject of the certificate might have affected the Tribunal’s decision, there would have been a failure to afford procedural fairness. See Minster for Immigration & Border Protection v Singh (2016) 244 FCR 305; [2016] FCAFC 183. However, there was no such possibility.

20. The question, whether the Tribunal had jurisdiction, is a matter for the Court.  As I have decided that there was no jurisdiction, there was no power for the Tribunal to exercise and as such, none that could be affected by the certificate of the documents to which it related.  The application must be dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       12 July 2017