BHRR and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) - [2023] AATA 3199

BHRR and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 3199 (10 October 2023)
Division:General Division
File Number(s): 2022/9182
Re:BHRR
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member R Bellamy
Date:10 October 2023
Date of written reasons: 10 October 2023
Place:Brisbane

The Tribunal is satisfied that the decision is not reviewable by the Tribunal and pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 dismisses the application for review.
.................................[SGD].......................................
Senior Member R Bellamy
Catchwords
PRACTICE AND PROCEDURE – Jurisdiction to review decision under 501CA(4) of the Migration Act 1958 – whether relevant decision given to applicant in the prescribed manner – whether removal of authority to act as migration agent also removal authority to receive documents – whether locked bag is a post office box for the purposes of the reg 2.55 Migration Regulation 1994 (Cth) – operation of reg 2.55 as notice of decision was in fact received
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994
Cases
Beni v Minister for Immigration and Border Protection [2018] FCAFC 228
Lyu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 125
Minister for Immigration, Citizenship and Multicultural Affairs v EVE21 [2023] FCAFC 91
SZJDS v Minister for Immigration and Citizenship [2012] FCAFC 27
Zhang v Minister for Immigration and Citizenship [2007] FCAFC 151

This is an interlocutory decision concerning the Tribunal’s jurisdiction to deal with an application for review of a decision made under s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”). The Applicant lodged an application with the Tribunal on 8 November 2022 for a review of a decision made by a delegate of the Respondent dated 16 August 2019. This decision was forwarded to the Applicant under cover of a letter from the Respondent dated 20 August 2019. The Tribunal is satisfied that the decision is not reviewable by the Tribunal and pursuant to section 42A(4) of the Administrative Appeals Tribunal Act1975 dismisses the application for review. The Tribunal’s reasons follow.

The applicant is a citizen of Afghanistan who was born on 31 December 1981. He held a Class XA Subclass 866 Protection visa until the Respondent cancelled it under s 501(3A) of the Act. The applicant asked the Respondent to revoke the cancellation. On 23 August 2019, he was given a letter notifying him that his revocation request had been refused. There was a strict time frame within which he could apply to have the non-revocation decision reviewed by the Tribunal. He did not apply within that time frame. He now claims that he was never lawfully notified of the decision (even though as a matter of fact he was) because the required procedure was not adhered to. If that is correct, it would follow that a fresh notification would be required. The applicant was represented by Victoria Legal Aid. His lawyer put forward some arguments that are worthy of consideration. However, I am persuaded that the required procedure was followed. Accordingly, the applicant was notified of the decision and his application is out of time, meaning the Tribunal cannot review the non-revocation decision.
Background
On 19 May 2016, the applicant's visa was cancelled under s 501(3A) of the Act because he did not pass the character test and he was serving a sentence of imprisonment. By letter dated 19 May 2016, he was notified of that decision and invited to make representations about it. On 7 June 2016, the applicant made representations in which he sought revocation of the cancellation decision. The discretion to revoke the cancellation decision is in s 501CA(4) of the Act. On 16 August 2019, the Respondent decided to refuse to revoke the cancellation. The Tribunal has jurisdiction to review such a decision.[1] In accordance with s 501G of the Act, the respondent was required to give a notice of the non-revocation decision to the applicant that included specified information about the decision and how to apply to the Tribunal to review the decision. It is not disputed that the notice itself was compliant. That section also provides that the notice must be given in the “prescribed manner”. It was undisputed that failure to comply with the notification requirements of s 501G(1) means that there was no “notification”.
[1] Section 500(1)(ba) of the Act.
As the applicant was inside the migration zone, an application for review of the non-revocation decision had to be lodged within nine days after the day on which he was notified of the decision in accordance with s 501G(1).[2] There is no statutory discretion concerning this time limit. The Tribunal cannot entertain an application for an extension of time.[3] The crucial issue here is whether the notice was given to the applicant in the prescribed manner.
[2] Section 500(6B) of the Act.
[3] Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 at [80].
With respect to the “prescribed manner”, s 500G picks up reg 2.55 of the Migration Regulations 1994 (“the Regulations”). It provides various ways a notice can be given to a person, including hand delivery, post email, etc. It can be given by post if it is dated then dispatched within three working days (in the place of dispatch) of the date of the document 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”. If the notice is posted (from a place within Australia to an address in Australia, the person is taken to have received the notice seven working days (in the place of the address) after the date of the document.
At the time of the decision, the applicant was accommodated at HM Prison Barwon. The notice was dated 20 August 2019 and sent by registered post (which is prepaid) to HM Prison Barwon Locked Bag 7, LARA VIC 3212.
Assuming the notice was given in the prescribed manner, the applicant’s application for review, lodged on 8 November 2022, was well out of time. The Respondent’s position is that the notice was given in the prescribed manner and the Tribunal should dismiss the application under subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) because it has no jurisdiction to review the decision. Section 42A(4) provides:
“The Tribunal may dismiss an application without proceeding to review the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal.”
The Applicant’s position is that the notice was not given in the prescribed manner, firstly, because the delegate was required, but failed, to give the notification to the applicant’s authorised recipient pursuant to s 494D(1) of the Act, and alternatively, the notification was sent to a locked bag which is not the same as a residential address, business address or post box address.
Section 494D of the Act relevantly provides that if a person gives the Minister written notice of the name and address of another person (the authorised recipient) authorised to receive documents in connection with specified matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the person, any documents in connection with those matters that the Minister would otherwise have given to the first person. Further, if the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the person, however, this does not prevent the Minister giving the person a copy of the document. The person can vary or withdraw the notice at any time.
On 28 May 2016 the Applicant submitted a completed form 956 appointing Mr Akbar Rokhan as his migration agent (“appointment form”). The form 956 has changed slightly over the years. The iteration that the Applicant submitted was entitled:
“Advice by a migration agent/ exempt person of providing immigration assistance”.
There was no reference to an authorised recipient in the title. Part A of the form contained the sections:
·Migration agent/exempt person’s details;
·Client’s details;
·Type of assistance; and
·Authorised recipient.
In the Authorised recipient section, there was a question:
“Have you been authorised to receive written communication on behalf of your client(s) in relation the matter indicated in Question 16?”
The “Yes” box was ticked. Question 16 dealt with what type of assistance the migration agent or exempt person would be providing. Part B of the form dealt with ending an appointment and Part C of the form contained declarations.
On 5 April 2019 Refugee Legal sent the Respondent an email that said:
“We attach a completed and signed form 956 ending the appointment of [the applicant’s] migration agent. Please note, Refugee Legal is not representing [the applicant]. We are assisting him with providing the 956 only.”
The form 956 (“withdrawal form”) had a tick in the box “appointment has ended”. Parts B and C were filled in. The form did not contain any questions as to whether the agent was still an authorised recipient. Nor did the covering email make any separate reference to an authority to receive documents.
The Applicant’s position is that the withdrawal form should be read as the applicant having withdrawn only Mr Rokhan’s appointment as his migration agent, and not his appointment as his authorised recipient. The applicant’s lawyer submitted that the appointment of a person as a migration agent, and the appointment of that person as an authorised recipient, are distinct matters, and the fact that both appointments can be made in a single written notice should not distract from this fundamental distinction. The Respondent contended that even if they are distinct matters, the form dealt with both together and the applicant used it to appoint Mr Rokhan.
The Applicant’s lawyer submitted that the Tribunal should take into account the fact that the Applicant was in custody and he did not purport to appoint another authorised recipient in Mr Rokhan’s place. It was contended that it is inherently unlikely that an illiterate person (as the Applicant is) would withdraw his authorised recipient’s appointment in order to personally receive documents that he could not read. This submission invites the Tribunal to infer that the Applicant did not intend to remove Mr Rokhan as his authorised recipient.
If the Applicant did indeed intend to keep Mr Rokhan as his authorised recipient he could have given that evidence. In any event, I do not accept that the Applicant’s intention is a relevant matter.
The question of whether a person has authorised another to receive documents so that the Minister is required to send documents to the authorised person depends on “an objective assessment of the relevant documents and circumstances at the time and how they objectively then appeared in terms of the question of authority”.[4] The Respondent submits that the Tribunal should apply the same approach to determining whether a person has withdrawn the authorisation of another for the purposes of s 494D(3) of the Act, and I see no reasons not to adopt that approach.
[4] SZJDS v Minister for Immigration and Citizenship [2012] FCAFC 27 at [41]; Lyu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 125 at [44].
Objectively, neither the removal form nor the covering email separately addressed Mr Rokhan’s appointment as an authorised recipient. The form 956 does not indicate that it was the only way to end an appointment. An annotation regarding the authorised recipient appointment could have been made to the form or it could have been mentioned in the covering email. The Applicant asks me to infer that because Mr Rokhan’s appointment as authorised recipient was not separately cancelled, it remained in effect.
This argument ruins into difficulty if a person’s appointment as an authorised recipient is dependent on their appointment as a migration agent or exempt person. On the face of the form 956, it is apparent that the sections in Part A were each intended to provide information about the appointment of the migration agent/exempt person. It is significant that the authorised recipient questions were contained in Part A and not in a separate part of the form, and that they related to the assistance the agent/exempt person would provide. The form appeared to treat the authority to receive documents as a facet of a person’s appointment as a migration agent or exempt person. It would then make sense that completing Part B would end all of the appointments that had earlier been made by completing Part A of an earlier form. In that case, form 956 did not need to provide a separate means to indicate that a migration agent/exempt person who had been removed was also removed as an authorised recipient.
On this construction, the Applicant expressly withdrew his authorisation for Mr Rokhan to received documents on his behalf when he withdrew his authority for Mr Rokhan to act as his migration agent as the former was dependent on the latter.
I note that there was, at the time, a form 956A that dealt with “Appointment and withdrawal of an authorised recipient”. One of the questions asked whether a migration agent or exempt person had been appointed and it contained the advice:
“Do not use this form if: … you are appointing a migration agent or exempt person to provide you with immigration assistance and they will also be your authorised recipient…In this case the migration agent or exempt person should complete Form 956”.
The Respondent pointed out that the interpretation submitted by the Applicant would mean the Respondent was legally obliged to continue sending correspondence to a migration agent or exempt person who had been removed using a form 956 unless a form 956A had also been submitted. I consider that having to do that, or annotate the form 956 or otherwise do more than complete form 956, creates unnecessary difficulties to people who, like the Applicant, are already at a disadvantage due to the language barrier or lack of familiarity with government administration. Objectively, it seems unlikely that this is how form 956 worked.
The current iteration of form 956 is entitled:
“Appointment of a registered migration agent, legal practitioner or exempt person”.
Like the previous form 956, this iteration has a Part B that deals with ending an appointment. Unlike the previous version, this form’s Part B asks if the person whose appointment is ending was also appointed as an authorised recipient and if so, whether their appointment as an authorised recipient is ending. That is, this form can be used to withdraw the appointment as an agent while keeping in place the appointment as an authorised recipient. The Applicant submitted that the inclusion of these questions in the current iteration of the form indicates what the earlier version was intended to do. However, it is just as likely that if the earlier version had intended to do that it would have made that clear as this version does.
The Applicant’s lawyer put forward some authorities however they are not directly on point and I am not persuaded that they are applicable to this specific issue. I am satisfied that by submitting the removal form, the Applicant removed Mr Rokhan’s authority to act as his migration agent and his authorised recipient. He did not authorise any other person to receive documents for him. It follows that there was no-one authorised to receive documents on his behalf. The Respondent was required by law to give the non-revocation notice to the Applicant.
As to the Applicant’s second argument, the terms “residential address”, “business address” and “post box address” are not defined in the Act. Therefore, the terms should be given their ordinary meaning having regard to the context. It was not disputed that the Applicant’s place of residence at the time the revocation notice was sent was HM Prison Barwon. Nor was it disputed that the address to which the notice was sent was the only postal address available to send correspondence to Barwon Prison.
The Applicant contends that there is a material distinction between a locked bag and a post box address on the basis that a post office box can be accessed 24 hours a day whereas a locked bag is only accessible during a post office’s business hours. The Applicant submitted that it is inherently unlikely that Parliament would contemplate limiting a person’s ability to receive important documents related to cancellation of their visa in a way that might delay receipt of such a document where strict time frames for taking action apply. Therefore, it should be assumed that “post box address” means a form of post that is always accessible to the recipient like mail that is sent to a residential or business address. The Applicant’s lawyer pointed out that reg 2.55(3)(c) is not limited to institutional post box addresses, and that if a detained former visa holder required a friend or relative who worked during normal business hours to assist with retrieving their mail, a notice sent to the person’s last known locked bag address might remain effectively inaccessible for days. However, that scenario could not occur where the Respondent is aware of the street address or locked bag address of the place where the person is detained, and it is difficult to imagine that the Respondent would not have that information.
In Zhang v Minister for Immigration and Citizenship[5], the Full Federal Court considered the term “post box address” as it appeared in reg 2.55(3)(c), and having accepted that it meant “post office box”, said the following:
“The terms "post office box" appear to signify no more than a postal address known to the Minister to which communications intended for the person to be notified, can be made. Consistent with furthering the purpose of the service scheme of the s 494B and of reg 2.55, the reasonable and appropriate construction of them is that they are simply a loose vernacular version of a type of postal address, not being a residential or a business one, to which it is known to be appropriate to correspond with the intended recipient, i.e. it is an address for correspondence such as the appellant supplied to the Minister and which was used by the Minister.”[6]
[5] [2007] FCAFC 151.
[6] At [30].
In a recent Full Federal Court decision, Minister for Immigration, Citizenship and Multicultural Affairs v EVE21[7] Perram J held that a prison’s post box address is an inmate’s post box address. His Honour added:
“In reaching this conclusion I would again prefer not to rely upon the Full Court’s decision in Zhang. There it was concluded that a street address could be a post office box address for the purposes of reg 2.55(3)(c). The Court reasoned that a post office box address was any address at which the recipient could be reached. This strikes me as, perhaps, a surprising conclusion. However, since it is not necessary to rely upon Zhang it is not necessary to consider it further.”[8]
and
“…the reasoning above entails that the prison’s private bag address was also the First Respondent’s private bag address. There remains the deep question of whether a private bag is a post office box. I would defer consideration of that question to a case in which it arises for determination.”[9]
[7] [2023] FCAFC 91.
[8] At [81].
[9] At [84].
While his Honour left that question open, importantly, he said:
“I would resist, if possible, a construction of reg 2.55(3)(c) which results in it being impossible to send a document by post to a person. Whilst different statutory contexts may require a different conclusion, in the context of the machinery of reg 2.55(3)(c) an interpretation of ‘residential address, business address or post box office address’ which permits receipt of letters by post seems to me preferable.”[10]
[10] At [68].

I accept the Respondent’s submission that Zhang remains binding authority. I would add that the notice provisions apply in scenarios where the intended recipient of a notice is incarcerated, and they provide a mechanism for notices to be posted. Prisons receive a lot of mail, so they are likely to use some kind of mechanism for receiving bulk mail. Further, an inmate’s residential and post office box are the same as the prison’s, and it cannot be assumed that an inmate has a business address. A construction of reg 2.55(3)(c) that acknowledges that the provision contemplates these well-known matters appears preferable, and that would be a construction that facilitates the delivery of mail in that factual scenario. A narrow construction of “post office box” may well make it impossible to send a document by post to a person, which Perram J indicated is an undesirable construction. That would have indeed been the case with respect to the Applicant if a locked bag is not a post office box.
I acknowledge that a locked bag is not accessible all the time as a post box is, and in circumstances where very tight timeframes apply with respect to challenging some types of notices it is most desirable for a person to receive a notice as early as possible. Tempering the strength of that argument is the reality that, if a prison had a post office box, an inmate could not go to the post office and access it any time or at all. They would still have to wait until the prison checks its mail and then delivers it to inmates.
In any event, reg 2.55(9) relevantly provides that if the Minister purports to give a document to a person by a method specified in the regulation but makes an error in doing so, and the person nonetheless receives the document or a copy of the document, the Minister is taken to have given the document to the person and the person is taken to have received the document at the time specified by the regulation for that method. Even if the Minister had erroneously posted the notice to an address that was not the Applicant’s post box address, he received it, and he received it before the deemed time specified in the regulations.
I am satisfied that the notice was given to the Applicant for the purposes of s 501G of the Act and therefore the Tribunal does not have jurisdiction to review the non-revocation decision. It follows that the application should be dismissed.

I certify that the preceding two hundred and thirty-six paragraphs (36) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy

.................[SGD].................
Associate
Dated: 10 October 2023

Date of hearing:

28 August 2023

Counsel for the Applicant:

Mr Lawson Bayly, Solicitor

Victoria Legal Aid

Counsel for the Respondent:

Mr Greg Johnson of Counsel

instructed by Minter Ellison