BATAJU v Minister for Immigration

[2014] FCCA 2922

FEDERAL CIRCUIT COURT OF AUSTRALIA

BATAJU v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2922

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal – whether Tribunal incorrect to find it did not have jurisdiction – no error found – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116, 127, 338, 347, 476

Migration Regulations 1994 (Cth), regs.2.55, 4.10

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172
Maroun v Minister for Immigration and Citizenship [2009] FCA 1284; (2009) 112 ALD 424

Applicant: NIKUNJ BATAJU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1367 of 2013

Judgment of: Judge Nicholls

Hearing dates: 3 April 2014, 10 October 2014

Date of Last Submission: 10 October 2014

Delivered at: Sydney

Delivered on: 12 December 2014

REPRESENTATION

Solicitors for the Applicant: Mr M Newman of Newman & Associates

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Ms M Stone of DLA Piper

ORDERS

1. The application made on 18 June 2013 and amended on 22 April 2014 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $6825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1367 of 2013

NIKUNJ BATAJU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 18 June 2013 and amended on 22 April 2014 seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 27 May 2013 which found that it did not have jurisdiction to review the decision of the Minister’s delegate to cancel the applicant’s subclass 572 Vocational Education and Training Sector visa (“the visa”).

The Issue

1. While the applicant’s application, as amended, contains three grounds, the issue before the Court is, essentially, whether the Tribunal was correct to conclude that it did not have jurisdiction to review the delegate’s decision.

Background

1. The Court has in evidence before it a bundle of relevant documents filed by the Minister in this matter (“the Court Book” ‑ “the CB”). The following, derived from the Court Book, provides explanatory background.

2. The applicant is a citizen of Nepal. He was the holder of a visa which was cancelled by the Minster’s delegate on 9 May 2012 pursuant to s.116 of the Act. Notification of that decision was apparently sent (see further below) to the applicant by registered post to a street address in Mortdale, NSW (CB 43 to CB 61). A copy was sent to the applicant by email on that date (CB 120 to CB 127).

3. The applicant applied for review to the Tribunal on 28 March 2013 (CB 63 to CB 73). He was assisted by a registered migration agent (CB 62 and CB 69).

4. On 27 May 2013 the Tribunal found that it did not have jurisdiction to review the delegate’s decision. The Tribunal found that the application to the Tribunal was made out of time, as prescribed by the Act and the Migration Regulations 1994 (Cth) (“the Regulations”) (CB 141 to CB 143).

5. The Tribunal took into account various submissions made by the applicant’s then representative. Relevantly, it found that the applicant had been notified of the delegate’s decision by letter of 9 May 2012, sent by registered post on that date to the applicant’s last address known to the Minister. In essence, the Tribunal found that the letter complied with all the relevant statutory requirements ([4] at CB 142 and [14] – [16] at CB 143).

6. The Tribunal found that the letter, in the relevant statutory and regulatory circumstances, was deemed to have been received by the applicant on 18 May 2012. In these circumstances the time for the making of the application to the Tribunal ceased on 29 May 2012 ([16] at CB 143).

7. This was the basis for the Tribunal’s conclusion. The Tribunal did not rely on the notification sent by email, as it found that that notification did not comply with the relevant statutory requirements ([5] at CB 142).

Application to the Court

1. The application to the Court was in the following terms:

   “1. The applicant held a Student (Temporary)(Class TU)

   
   

   sub-class 572 [visa] and studied at an approved course. The applicant ceased his studies, married and applied for a Student dependent visa (ClassTU) sub-class 573, his wife commencing her studies at an approved course. This application failed. The applicant’s student visa TU 572 was cancelled by the Minister on 18 May 2012 and he was left without a visa.

   2. On 28 March 2013 the applicant sought a review of the decision to cancel the applicant’s Student (Temporary) (Class TU) 572 visa at the Migration Review Tribunal on the grounds [of] exceptional circumstances viz., poor psychological health interrupting his studies (about which he produced a medical report) but the Tribunal decided it did not have jurisdiction to review the decision for the reason that the review application was out of time, however it failed to consider the claim by the applicant that he did nor receive the decision until handed to him at a meeting with a Departmental officer on or about 22 March 2013.

Before the Court

1. The following provides some explanation as to how the matter developed before the Court and ultimately reached a final hearing.

2. Both parties were represented before the Court. The applicant’s original application was set down for final hearing on 3 April 2014. On that date the applicant sought to proceed with an argument not pleaded in the application.

3. In the application made on 17 June 2013, the thrust of the applicant’s two grounds (see above at [10]) was that the Tribunal was in error in failing to consider that the applicant had not been notified of the decision to cancel his visa until 22 March 2013. The Tribunal found that the notification took place at an earlier date. The applicant’s case was focussed on the date of actual notification.

4. Before the Court, the argument appeared to focus on what was said to be the absence of evidence that the delegate had despatched the notification of the decision to cancel the visa as found by the Tribunal.

5. Although the applicant had had time to file any amended application, I nonetheless adjourned the hearing to enable the applicant to file an amended application and any further written submissions (noting that the applicant’s written submissions had only been filed on the day of the hearing). The Minister also had leave to file any further evidence in light of the case, as now explained by the applicant, and further written submissions.

6. The applicant filed an amended application on 22 April 2014. The grounds are in the following terms:

   “1. The applicant sought a review of the decision to cancel the applicant’s Student (Temporary) (Class TU) 572 visa at the Migration Review Tribunal but the Tribunal decided it did not have jurisdiction to review the decision for the reason that the review application was out of time, but failed to consider the claim by the applicant that he did not receive the decision.

   2. The tribunal sought advice from the department as to the despatch of the decision adverse to his application for a student visa but obtained a partly redacted list headed up Converga and nothing else. The list did not purport to be anything more than a bare list and was not supplemented by statement from officers of the department stating what could be inferred from that bare list.

   3. In so doing the Tribunal failed to perform its duty imposed by s348 of the Migration Act 1958, that is to say it failed to examine in reasonably sufficient detail evidence to enable it to form a view that it did not have jurisdiction.

   Particulars

   The tribunal boldly stated that the departmental letter in question was addressed to the applicant at his correct address and despatched by registered mail. Although despatch was the critical issue the tribunal had no or insufficient evidence to support such a finding and in the circumstances acted unreasonably in the sense of Wednesbury unreasonableness.”

7. On 8 May 2014, the Minister filed the affidavit of Belinda Joy Williams, a departmental officer, made on 7 May 2014. Annexed to the affidavit were copies of departmental records said to be relevant to the despatch of the notification of the cancellation of the visa. The applicant filed supplementary written submissions on 20 June 2014 which sought to take issue with the contents of the affidavit and allege that the “best piece of probative evidence” was hearsay and inadmissible (see applicant’s supplementary written submissions at [5]). The Minister filed further written submissions on 23 June 2014.

8. At the resumed hearing, the Minister sought leave to read the affidavit of Ms Williams into evidence. Leave was granted, and there was no objection from the applicant, notwithstanding earlier indications to the contrary (see above). Ms Williams was cross-examined by the applicant.

9. The evidence of Ms Williams was that she was the delegate who made the decision to cancel the visa. She said she had “some limited recollection of this matter” and she had refreshed her memory by looking at the relevant departmental file (a copy was annexed to the affidavit).

10. Ms Williams referred to the copy of the letter of notification and her decision record dated 9 May 2012 (see annexure “A”, most of the pages to the annexure contain two different page numbers. In her affidavit Ms Williams refers to “folios 33 to 35” as being the copy of her letter and “folios 28 to 30” as being the decision record. These are not immediately identifiable. In any event, see page “28/35” to “page 24/33”. See also CB 46 to CB 50 for copies of the same documents).

11. Ms Williams gave evidence as to her “standard practice”, relevantly, in relation to the despatch of such letters, including the letter in question. She gave evidence that, to the best of her belief, she followed that practice in the current case.

12. In her affidavit, Ms Williams’ relevant evidence was ([8] to [10]):

    “[8] My standard practice for drafting and sending decision notification letters by post, where an applicant did not have an authorised recipient and was onshore, was as follows:

    8.1 I would draft the letter, print the letter and sign the letter.

    8.2 I would then photocopy and scan the letter. The photocopied copy of the letter was added to the hard copy Departmental file. The scanned letter was added to the electronic file by uploading the document into DIBP’s electronic systems.

    8.3 I would place the original letter, together with the decision record and information about the client's review rights if applicable, in a pre-paid registered post envelope.

    8.4 I would then place the envelope in the Student Integrity pigeon hole for outgoing mail for Converga’s collection, and scan a copy of the envelope and place a copy of the envelope on the electronic file. Converga is DIBP’s mail services provider.

    8.5 I know based on my experience working at DIBP that Converga collect all mail from the pigeon hole, and that it is then despatched from Converga’s mailroom located at the DIBP premises using the services of Australia Post.

    8.6 I know based on my experience working at DIBP that Converga use an Excel spreadsheet to record all mail which they despatch.  I know based on my experience working at DIBP that this spreadsheet is created by scanning the barcode of the registered post envelope, typing the name of the recipient listed on the envelope, and then typing in the suburb, state and postcode.

    8.7 I know based on my experience that if DIBP staff request a despatch date for any outgoing registered post, Converga are able to go back to their spreadsheet and say whether, and the date on which, the outgoing registered post was despatched.

    8.8 It was also my practice to often use the Australia Post website and the registered post number to check the delivery of the registered mail. I do not remember if I did this for this particular applicant.

    [9] In the present case, I can discern from my review of Annexure A that the registered post number for the letter dated 9 May 2012 was 490372664014, and that the envelope was addressed to:  1/32-34 Station St Mortdale NSW 2223.

    [10] I have obtained from DIBP’s records a copy of the Converga spreadsheet for outgoing mail on 9 May 2012. Annexed hereto and marked ‘B’ is a true and correct copy of that document, with the details of third parties redacted.”

13. In submissions before the Court, the applicant made the following points. One, that even on the best view of Ms Williams’ evidence, there still remained an insufficient basis to say that the letter of notification was actually placed in the relevant envelope and actually despatched.

14. It is relevant to this argument to note that the Minister’s department employs a private company (“Converga”) to despatch correspondence. The applicant’s point was that while Ms Williams’ evidence was as to the usual practice, she could not say whether the document was actually despatched. The submission was that there was no direct evidence from any employee of Converga to that effect. The argument was stressed with the proposition that the Court should take judicial note that “documents go missing from time to time”.

15. Two, the applicant made reference to the “spreadsheet”. This was a reference to the “Converga” postal log for 9 May 2012 (see annexure “B” to the affidavit of Ms Williams). The applicant submitted that this was a record of “documents for despatch”, not a record of “actual despatch”. Again, that this should have been the subject of evidence from a Converga employee.

16. Three, that the Court should draw a Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 “inference” that had the evidence from Converga been available, it would not have assisted the Minister.

17. Four, that on the evidence before the Tribunal, it was not open to it to have come to the conclusion that the letter of notification of the delegate’s decision was despatched. That is, as the particular to ground three of the amended application complains, the Tribunal found the letter was despatched to the applicant at the “correct address”, but the evidence before it was insufficient to allow this to be reasonably concluded.

18. Five, that on the evidence, the time for the making of the application for review to the Tribunal commenced from the date that he ultimately received notification of the delegate’s decision. This was said to be on 15 or 18 March 2013 (see CB 132 and [6] at CB 142) and not 18 May 2012 as found by the Tribunal (see [16] at CB 143).

Consideration

1. The grounds of the amended application do not establish that the Tribunal fell into error in finding that it did not have jurisdiction to review the delegate’s decision.

2. First, as the Minister submitted, to the extent that the grounds, and the submissions in support, argue that the Tribunal’s conclusion and the antecedent findings were not available to it, then such arguments are misplaced or misdirected. Whether the Tribunal had jurisdiction to conduct the review is a matter of jurisdictional fact for the Court (Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 at [19]). I agree with the Minister that the grounds must fail.

3. Second, the question for the Court is, as the Minister submitted, whether the Tribunal had jurisdiction or did not have jurisdiction to conduct the review.

4. In this regard, there is the evidence of Ms Williams. It is the case, as the applicant submitted, that there was no evidence put before the Court by an employee of Converga that the letter was actually despatched.

5. However, there is a distinction between saying that no one from Converga gave evidence to the Court, and that there was no evidence from Converga before the Court. That evidence is in the form of the despatch log at Annexure “B” to the affidavit of Ms Williams.

6. It is important to note the “shift” in the applicant’s position as represented by the grounds of the original application to the Court and the grounds of the amended application. As set out above, originally, the applicant’s attack was derived from the proposition that he did not receive any letter of notification in May 2012, and the notification took place in March 2013. In the amended application the focus of the attack is, in effect, that it was not open to the Tribunal, and by extrapolation to the Minister now, to say that the letter was sent in May 2012.

7. The difficulty for the applicant is that this denies the totality of the evidence before the Court, and whether it is open to the Court to find that, on balance, an inference can be drawn that the letter of notification was despatched in May 2012.

8. In this regard, I agree with the Minister that there is no evidence before the Court to challenge Ms Williams’ evidence at [8.5] of her affidavit and the evidence she gave on cross-examination. Her evidence was that the relevant records indicate that the letter was despatched on 9 May 2012. The applicant has not produced evidence to the contrary or to challenge this evidence.

9. Whether someone from Converga could, or could not, have given evidence as to the actual despatch is not of assistance. The evidence that is before the Court allows, on balance, the inference to be drawn that it was sent in May 2012.

10. The Minister referred the Court to Maroun v Minister for Immigration and Citizenship [2009] FCA 1284; (2009) 112 ALD 424 (“Maroun”) a matter on appeal from this Court. The relevant factual basis in Maroun is not identical, but is certainly similar to the circumstances in the current case. In my respectful view, it provides direction to this Court, relevantly, in the matter of how to approach the current issue.

11. In Maroun, her Honour, Jagot J said (at [24] – [26]):

    “[24] The appellant submitted that, in so holding, the Federal Magistrate erred.  According to the appellant, first, Ms Carrillo had nothing to do with the dispatch of the envelope and said she had no idea whether the envelope would have been sent within that time.  Second, Ms Carrillo said that the Department kept records of the sending of documents by registered post but no records had been produced, giving rise to a Jones v Dunkel inference that the letter was not dispatched as required.  Third, the markings on the envelope could not be inferred to have been made by Australia Post (as opposed to the Department, for example) as there was no evidence about the making or provenance of those markings (see, by analogy, the Minister’s submissions in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 77; [2000] FCA 377 at [16] and [23]). 

    [25] I do not accept these submissions.  It may be accepted that Ms Carrillo was not responsible for posting the envelope.  But she did not simply say she had “no idea” about the process for dispatch.  She gave evidence about the Department’s system.  This included the fact that she placed envelopes in the out tray on the same day she signed the letter.  Further, that the usual practice was for the tray to be emptied by the end of each day, having been collected by those responsible for dispatch.  This evidence has to be considered together with the evidence presented by the envelope.  The Federal Magistrate was entitled to draw rational inferences from the face of the envelope including as to the provenance of markings thereon.  The envelope contains two references to the date 24 August 2004.  Given Ms Carrillo’s evidence and the other markings on the document (particularly the return to sender marking showing that Australia Post handled the envelope) it was open to the Federal Magistrate to find that Australia Post handled the envelope on 24 August 2004.  More to the point, the appellant has not proved to the contrary. 

    [26] The fact that the Department has not produced records of the dispatch of the envelope does not support a Jones v Dunkel inference that the envelope was not sent within the required time.  There was evidence available supporting an inference of dispatch of the letter within the required time.  The appellant did not advance contrary evidence.  In these circumstances it cannot be said that anything remained that the Minister was required to explain or contradict.”

1. What is immediately apparent is that in a similar fact scenario to the current case, the “applicant” in Maroun made similar arguments to those advanced now which were not accepted by the appellate Court.

2. On the evidence before this Court (that of Ms Williams and see also CB 46 to CB 60 and CB 120 to CB 126), I find that the letter of notification of the delegate’s decision to cancel the applicant’s visa was sent on 9 May 2012.

3. The relevant statutory and regulatory scheme, posits three questions in determining whether the Tribunal has jurisdiction in matters of this type.

4. The first is whether the Minster, in this case his delegate, validly notified the applicant of his decision. The delegate’s decision was to cancel the applicant’s visa pursuant to s.116 of the Act. Notification of the decision to cancel the visa needed to be in accordance with s.127 of the Act. On the evidence before the Court, the delegate’s letter complied with the requirements set out at s.127(2) of the Act. That is, the notification specified the ground for the cancellation, stated whether the decision was reviewable under, relevantly, Part 5 of the Act, and stated the relevant details as required by s.127(2)(c) of the Act.

5. Section 127(1) of the Act provides that notification of the decision to cancel the visa must be done in the prescribed way. Regulation 2.55 of the Regulations prescribes certain matters in relation to the giving of documents relating to, amongst other matters, a visa holder in relation to the cancellation of a visa (see reg.2.55(1)(a) of the Regulations). Regulation 2.55(3) sets out the various methods by which such a document may be given to a visa holder. Relevantly, reg.2.55(3)(c) is one of those methods. It is in the following terms:

   “Subject to subregulation (3A), for a document mentioned in paragraph (1)(a) or (c), the Minister must give the document in one of the following ways:

   …

   (3)…

   (c)  by dating it, and then dispatching it:

   (i)  within 3 working days (in the place of dispatch) of the date of the document; and

   (ii)  by prepaid post or by other prepaid means;

   to the person's last residential address, business address or post box address known to the Minister;

6. On the evidence before the Court, the delegate’s decision was sent by letter dated 9 May 2012, by prepaid (registered) post and despatched on that date (see Ms Williams’ affidavit and CB 46 to CB 60 and CB 120 to CB 126). On what is before the Court, the notification complied with the regulatory requirements. There was no argument by the applicant before the Court in relation to this particular point. On the evidence, the applicant’s last residential address notified, and known, to the Minister was the Mortdale address (CB 1, CB 2, CB 13 and CB 46)

7. The second question is to determine when the applicant was taken to have received the document under the relevant statutory and regulatory scheme. Here reg.2.55(7) of the Regulations provides that a person is taken to have received the document, in this case the notification letter, 7 working days after the date of the decision. In the circumstances this was on 18 May 2012.

8. Importantly, given ground one of the amended application, the date of actual receipt of the notification is not relevant given the regulatory provisions. The Tribunal considered the applicant’s claim as to when he actually received the letter. The Tribunal was correct to find that given reg.2.55(7) of the Regulations, the applicant was taken to have received the letter on 18 May 2012.

9. The third question involves the consideration as to when the application for review needed to have been made. This is governed by s.347(1)(b) of the Act and the period prescribed in reg.4.10 of the Regulations.

10. The decision to cancel the visa was an MRT-reviewable decision pursuant to s.338(3) of the Act. Regulation 4.10(1)(b) of the Regulations prescribes that the applicant has seven working days after the notice is received to make an application for review. As stated above, the notification is taken to have been received on 18 May 2012. Therefore, in the circumstances, the last date for making an application to the Tribunal was 29 May 2012. There was no error in the Tribunal finding that this was the case.

11. The Tribunal had no discretion to extend the time within which the application for review had to be received by it. In these circumstances there is no error in the Tribunal’s determination that it had no jurisdiction to conduct any review of the delegate’s decision.

Conclusion

1. The decision that the application was made out of time was correct. The Tribunal did have jurisdiction to review the decision to cancel the visa. The application to the Court is to be dismissed. I will make an order accordingly.  

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 12 December 2014