BGE18 v Minister for Home Affairs
[2018] FCCA 2751
•18 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BGE18 v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 2751 |
| Catchwords: MIGRATION – Application for judicial review an Administrative Appeals Tribunal decision – notification of refusal decision letter sent by registered post to Applicant’s address returned unopened – where application to Tribunal lodged outside of 28 days’ time limit – whether the Tribunal had jurisdiction to hear the application – whether the notification of decision was valid – whether the Applicant was deemed to have received the notification of refusal letter – no jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.66, 412, 494C, 494B, 476 Migration Regulations1994 (Cth), regs.2.16, 4.31 Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 13.10 |
| Cases cited: DZAFH v Minister for Immigration [2017] FCCA 387 |
| Applicant: | BGE18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 682 of 2018 |
| Judgment of: | Judge Baird |
| Hearing date: | 18 September 2018 |
| Date of Last Submission: | 18 September 2018 |
| Delivered at: | Sydney |
| Delivered on: | 18 September 2018 |
REPRESENTATION
| No appearance by or on behalf of the Applicant |
| Solicitors for the Respondent: | Mr T. Galvin, MinterEllison |
ORDERS
THE COURT NOTES THAT the matter was called within the Court at 10:30am and outside the Court three times at 10:32am and there was no appearance by the Applicant.
Upon being satisfied that the Applicant has no reasonable prospect of successfully prosecuting the proceeding, THE COURT ORDERS THAT:
Pursuant to r.13.10(a) of the Federal Circuit Court Rules 2011 (Cth), the application is summarily dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 682 of 2018
| BGE18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore, revised from transcript)
This is an application seeking judicial review pursuant to s.476 of the Migration Act 1958 (Cth) of a decision of the Administrative Appeals Tribunal dated 2 March 2018. The Tribunal found that it did not have jurisdiction to review a decision made by a Delegate of the First Respondent, the Minister for Home Affairs, then the Minister for Immigration and Border Protection, on 21 April 2017 to refuse to grant the Applicant a Protection (Class XA) Visa.
The Applicant lodged his review application with the Tribunal on 13 December 2017, over 6 months outside the prescribed 28-day limit within which to seek review of the Delegate’s decision. The Tribunal has no power to extend time. It has no jurisdiction where the Delegate’s decision was communicated to the Applicant in compliance with the legislative and regulatory regime.
Proceeding before the Tribunal
The Applicant submitted to the Tribunal that he did not receive the refusal decision and notification from the Department of Immigration and Border Protection, and complains that when the notification letter was returned to the Department unopened, the Department still had time to take reasonable steps to notify the Applicant by mobile number, email address and contact details of the migration agent who assisted the Applicant to complete the protection Visa application.
It is uncontroversial that the notification letter sent by registered post was returned unopened and received by the Department, at least in the mail, on 22 May 2017, and then subsequently stamped received on 23 May 2017.
The Applicant sought the exercise of the Tribunal’s discretion. The Tribunal was satisfied on the evidence before it that the decision notice was dispatched to the last postal and residential address the Applicant had provided to the Department for the purposes of his protection Visa application. It was satisfied that the letter was mailed. It also stated that there was no further legal obligation on the Department to attempt to notify the Applicant again, and there was no obligation for the Department to contact the Applicant or the migration agent who assisted with his protection Visa application in an effort to “renotify” him of the decision.
On the evidence before the Tribunal, it was satisfied that the Applicant was notified of the decision to refuse him a protection Visa in accordance with s.494B(4) of the Act, and, hence, he is taken to have been notified of the decision on 3 May 2017. An application for review of that decision, therefore, had to be made by 30 May 2017. As the application for review to the Tribunal was not made in accordance with the relevant legislation the Tribunal had no jurisdiction in this matter.
Proceeding in this Court
The Applicant filed his application for judicial review in this Court in time. On 15 March 2018, the Applicant sought and was given an adjournment of the first court date before a Registrar of this Court. The Applicant attended the adjourned directions date on 12 April 2018 and consented to orders, which orders included at paragraph 13 that the matter be set down for final hearing today at 10.15am before me. Further, the Applicant consented to paragraph 15 of the orders which provided that in the event there is no appearance by, or on behalf of, the Applicant at the time of any scheduled Court event, the application may be dismissed without further notice.
The Applicant has not appeared today and has not communicated with the Court, or with Mr Galvin who appears on behalf of the Minister, providing any reasons for his non-appearance. At approximately 10.30am, the matter was called 3 times outside the Court, but there was no appearance. After some discussion between Mr Galvin and myself, I proceeded to the hearing. I accepted in evidence correspondence between Mr Galvin’s firm and the email address of the Applicant as provided with his application to this Court, which email correspondence on 25 June 2018 and again on 11 September 2018 clearly stated the listing of the hearing today before me and the location of the Court and the time, 10.15 am.
Whilst that correspondence informs the Applicant that if the Applicant does not appear the Minister may apply to have the matter dismissed for non-appearance under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), on my consideration of the evidence before me, I have concluded that the Tribunal was correct. It did not have jurisdiction, and the Applicant’s application to this Court is hopeless. I will briefly say why, but in these circumstances I have concluded that it is appropriate to dismiss the application pursuant to r.13.10(a), and I will do so.
Applicant’s application and communications
Briefly turning to the Applicant, the Applicant is a citizen of Pakistan, and he arrived in Australia first in July 2011 on a TU 572 student visa. According to his immigration history, he visited the United Arab Emirates in March 2014, and he has also returned to Pakistan. He thereupon appears to have obtained a further student visa to study in Australia. That student visa, according to the immigration history, appears to have expired on 1 October 2014. He lodged his protection Visa application on 1 December 2014.
In that protection Visa application Form 866B, at item 2, “Applicant 1 should be the person you want the department to contact about this application” he indicated himself, and that written communications, pursuant to item 21, should also be with himself: “myself”. He did indicate that he had obtained assistance with the form, and, at item 17, named the person assisting him. However, as I have said, in the items immediately following the details of assistance with the form, the Applicant ticked that all written communications about the application should be sent to the Applicant.
In Part C of the Visa application form, he indicated his residential address as a Merrylands, New South Wales address, which address I will not specify in any further detail so as to protect the Applicant. He did give a telephone number in his application form, but he also, at item 20 of Part C, answered the question: “Do you agree to the department communicating with you by fax, email or other electronic means?” with the answer: “No.” In his declaration, at item 68, he again gave his Merrylands address.
It is apparent from the evidence that he received communications from the Department at the Merrylands address. For example, it appears, according to the Delegate’s decision, that the Applicant attended a protection Visa interview on 11 June 2015. He also appears to have received a letter from the Department dated 2 December 2014 at the Merrylands address acknowledging his application, although I note that he draws attention to the Visa application summary attached to that letter that as well as referring to a postal address, it also referred to an email address which is the email address for communications in relation to his application to this Court. That Visa application summary, however, does not indicate any migration agent or representative.
I should say that the Tribunal invited the Applicant to comment on its preliminary view that the application was not a valid application as it was not lodged within the relevant time. By the Tribunal’s letter dated 18 January 2018, it invited the Applicant to provide any comments in writing by 1 February 2018. Further to requests by the Applicant’s then solicitor, or migration agent, that time was extended until 15 February 2018, and the Applicant provided a statement on 15 February 2018 and his then solicitors provided a submission. I will come back to those documents.
Grounds of review
The application for judicial review in this Court pleads 2 grounds of review with particulars. The grounds, with particulars omitted, are as follows:
(a)The Tribunal failed to properly consider whether Department of Home Affairs has taken reasonable steps to send the refusal notification to the Applicant.
(b)The decision of the Minister is infected with a legal error and, as a result of that, I submit that the decision of the Department has no legal validity.
Consideration
Ground 1
In determining whether the Tribunal had jurisdiction, the first issue for the Tribunal, and for this Court, is whether the notification of the Delegate’s decision is valid. Pursuant to s.66(1) of the Act, the Delegate must notify the Applicant of the Delegate’s decision in the prescribed way. Regulation 2.16(3) of the Migration Regulations 1994 (Cth) sets out the prescribed methods being one of the methods set out in s.494B of the Act.
Those methods include, in sub-s.494B(4), dispatch by prepaid post or other prepaid means within 3 working days of the date of the document to the last address for service provided to the Minister by the recipient for the purposes of receiving documents, or the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents.
Section 494 of the Act states when a person is taken to have received a document from the Minister. With respect to notifications by prepaid post or other prepaid means, the document is taken to have been received 7 working days after the date of the document.
Paragraph 412(1)(b) of the Act, and sub-reg.4.31(2) of the Regulations together provide that the period in which an application for review of a decision must be given to the Tribunal by, or for the Applicant, is 28 days commencing on the day the Applicant is notified of the decision: see DZAFH v Minister for Immigration and Border Protection [2017] FCA 984 upholding a decision of this Court in DZAFH v Minister for Immigration and Border Protection [2017] FCCA 387 at [44] to [46].
The notification letter has to specify certain matters required to be included, including by s.66(2) of the Act. I am satisfied that the Delegate’s decision and its cover letter dated the same date, 21 April 2017, satisfies the requirements of s.66(2)(a) and (d) of the Act.
On the evidence before me, the notification letter enclosing the Delegate’s decision was dispatched on 24 April 2017 by registered post to the Merrylands, New South Wales address. I find that it was dispatched within 3 working days of the date of the letter as required under s.494B(4) of the Act.
The second issue for determination is whether the Applicant was deemed to have received the notification of refusal of Visa letter. As I have said, pursuant to s.494C(4) of the Act, where a document is sent to an Applicant by prepaid post, the Applicant is taken to have received the document 7 working days after the date of the document. Thus, in the present case, as the Tribunal found, the Applicant is deemed to have received the letter on 3 May 2017, and the prescribed period to apply for review would have ended on 30 May 2017.
Spender J in Murphy v Minister for Immigration [2004] FCA 657; (2004) 135 FCR 550 at [68] to [69] held that in the circumstances of that case the person is taken to have received the document 7 working days after the date of document without qualification, and there is nothing to indicate that the effect of the subsection is to be read as if there was a proviso that the person is not taken to have received the documents where the document has been returned undelivered.
The Full Court of the Federal Court in Xie v Minister for Immigration [2005] FCAFC 172 is to similar effect. So too, compliance with statutory requirements is sufficient for the correspondence to have been taken to have been received as the Full Court held in SZOBI v Minister for Immigration and Citizenship (No. 2) [2010] FCAFC 151; (2010) 119 ALD 233 at [18]. Neither the Minister nor his Department had a duty to search its records for an alternative means by which to notify the Applicant of its decision, upon its notification having been returned unopened.
In the Applicant’s statutory declaration of 15 February 2018, the Applicant states that he put his faith in a solicitor and migration agent called Mr Lohitharajah whom he paid some $3,300 to assist in the preparation and completion of his protection Visa application.
The Applicant states, at [8] of his statement, that the Department sent an acknowledgement letter to his address, and that Mr Lohitharajah said to the Applicant that it is the procedure of the Department that they would send the letters to the agent and to the Applicant. He further said he had also received it, namely, Mr Lohitharajah. The Applicant says that he was asked to pay more money to Mr Lohitharajah, and whilst the Applicant attended the Departmental interview without Mr Lohitharajah, he was briefed by that agent, and the agent asked the Applicant to contact him after the interview.
The Applicant said that after the interview, he called Mr Lohitharajah who told him that he would contact the case officer. The Applicant says at [13] of his statement:
He then told me that he would contact the case officer and would do the needful, and I did not need to panic. He said that from now, he would make sure he would be the only one, he would receive all the correspondence from the DOHA and not me. Due to that, I did not worry of any letters from the DOHA.
The Applicant then said at [14] in his statement, “Recently, when I checked my visa status, I realised that I was unlawful. I then tried to contact Mr Lohitharajah, but he said he cannot help me and asked me to go back to Pakistan. After that, they started disconnecting my phone.”
Whilst the Applicant says in his statement that he then spoke to Parish Patience Immigration Lawyers and told them that he did not receive any refusal, and that any letters from the Department would have been sent to his previous lawyer, Mr Lohitharajah, the Applicant does not, under oath, make any statement to the effect that he had changed his address, that he had communicated any change of address to the Department, or, indeed, that he had not received the notification letter.
Rather, the Applicant says in his statement at [18] that when the Department received the returned decision record on 23 May 2017, at least the Department could have contacted “my agent to check whether he continued to represent me or not”, and, further, it could “have at least contacted me either via email or phone to see why the letter was not picked.” The Applicant then stated that because the file (the documents obtained under FOI) does not clearly indicate when the Department posted the letter, and to which address it posted the letter, the Applicant was unable to form the view whether the Department sent the letter to the correct address, and whether it did so within 3 working days.
The then agent/lawyer of the Applicant, Mr Marhalingham Sutharshan, made a submission dated 15 February 2018 repeating some of the above, referring to case law, and submitting that, because the Department has the Applicant’s mobile number, the Applicant’s email address and the details of the Applicant’s agent who assisted him in his protection Visa, the Department should have attempted to call the Applicant, or taken steps to advise the Applicant via email of the decision record.
The cases to which I have referred make clear that that is not necessary or required. It is sufficient that the Department has followed a prescribed method of notification, and I have found that it did so in the present case. I am also not persuaded that the Applicant did not have the envelope and enclosed letter upon it being posted by registered post to him. Rather, in particular, I am satisfied by the Department’s outgoing registered post and express post records, by the copy of the envelope reproduced in the Court book, and by the notification letter which has on its face the residential address of the Applicant provided as part of his protection Visa application, that the Merrylands street address was the address to which the letter was sent.
I am satisfied that the requirements of sub-s.494B(4) of the Act were complied with. Pursuant to sub-s.494C(4), the Applicant was taken to have received the cover letter and its enclosures 7 working days after 21 April 2017, being 3 May 2017 (as Mr Galvin notes, 25 April 2017 was not a working day). I am satisfied that the Applicant, therefore, had until 30 May 2017 in which to lodge his application before the Tribunal, as the Tribunal correctly found at [13]. As the Applicant did not lodge the review application until 13 December 2017, the Tribunal was correct to find it did not have jurisdiction to consider the review application.
Ground 2
The second ground may be dismissed with the observation that it seeks review of the Delegate’s decision. This Court does not have jurisdiction to review the Delegate’s decision. See, for example, s.476(2)(a) of the Act and MZXOT v the Minister for Immigration and Citizenship [2008] HCA 28; (2008) 233 CLR 601, and also Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5 at [35] per Perram and Perry JJ.
Conclusion
It follows that ground 1 of the application must be dismissed. Ground 2 must fail. The ultimate conclusion I reach is that the Applicant has no reasonable prospect of successfully prosecuting the proceeding, and I, therefore, dismiss the application, as I have indicated.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Baird
Date: 25 September 2018
0
8
4