BNZ16 v Minister for Immigration
[2018] FCCA 857
•16 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BNZ16 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 857 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal correctly determined it did not have jurisdiction for review – whether the Minister’s delegate complied with s.494D of the Act – migration agent registration had lapsed – whether migration agent authorised recipient – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.412, 476, 494C, 494D Migration Regulations 1994 (Cth), reg.4.31 |
| Cases cited: Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 Le v Minister for Immigration and Citizenship [2007] FCAFC 20; (2007) 157 FCR 321 |
| First Applicant: | BNZ16 |
| Second Applicant: | BOA16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1605 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 12 October 2017 |
| Date of Last Submission: | 12 October 2017 |
| Delivered at: | Sydney |
| Delivered on: | 16 April 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones of Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application made on 23 June 2016 and amended on 12 October 2017 is dismissed.
The first respondent’s application for costs is adjourned to 9:20am on 18 April 2018 before Judge Nicholls at Court 8.2, 80 William Street Sydney.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1605 of 2016
| BNZ16 |
First Applicant
BOA16
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 23 June 2016 and amended on 12 October 2017 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 3 June 2016, whereby the Tribunal found that it did not have jurisdiction to review the decision of the Minister’s delegate (“the delegate”) to refuse protection (Class XA) visas to the applicants.
In evidence before the Court is a bundle of relevant documents filed by the Minister and tendered by the applicant (“the Court Book” – “CB”, “AE1”).
Background
The applicants are husband and wife. Both are citizens of Pakistan (CB 15 and CB 30). They arrived in Australia on (FA600) sponsored visitor visas in October 2013 (CB 134.5). Their visas were valid until January 2014. They applied for protection visas on 17 January 2014 (CB 1 to CB 102). Their adult son, who is not a party to this proceeding, also applied for a protection visa as a member of the family unit (CB 52 to CB 58).
In making their protection visa application, the applicants were assisted by a Mr J Barrett (question 16 of Form 866B of the protection visa application at CB 10.1). Question 17 of Form 866B of the protection visa application indicates that at the time of the making of the protection visa application, Mr Barrett was “an agent registered with the Office of the Migration Agents Registration Authority (Office of the MARA)” (CB 10.4). Question 20 of Form 866B of the protection visa application indicates that the applicants wanted “[a]ll written communications about this application” to be sent to their “Migration agent” (CB 10.8).
The applicants and Mr J Barrett also completed a Form 956 “Advice by a migration agent/exempt person of providing immigration assistance” (CB 64 to CB 66). That form indicated that Mr J Barrett had been appointed by the applicants to assist them in their application for protection visas in his capacity as a “Registered migration agent” (question 8 of Form 956 at CB 64.3). Mr Barrett’s address for correspondence was also provided (CB 64.8).
On 13 August 2014 the Minister’s department sent a letter to Mr Barrett at his address for correspondence as indicated in the Form 956 (CB 119 to CB 127). This is the same address for correspondence as also provided by Mr Barrett in the Form 866B. The letter attached correspondence from the Minister’s department to the first applicant, inviting the applicants to attend an interview with the delegate, scheduled for 15 September 2014. From the delegate’s decision record, it is apparent that the applicants did not attend the scheduled interview (CB 136.6).
The delegate refused the first and second applicants’ application for protection visas on 15 September 2014 (CB 128 to CB 143). Separately, and also on 15 September 2014, the delegate found that the applicants’ son’s application (the third applicant), was not a valid application (CB 144 to CB 146).
The Minister’s department notified the applicants of the outcome of their application on 15 September 2014. A letter was sent by registered post to Mr Barrett’s address for correspondence (CB 128). It attached a letter to the first applicant advising that the application for the protection visas had been refused (CB 129 to CB 132), and enclosed the delegate’s decision record (CB 133 to CB 143).
The applicants applied for review to the Tribunal on 15 March 2016 (CB 147 to CB 149). The applicants were assisted by a registered migration agent from Parish Patience Immigration Lawyers in their application for review to the Tribunal (see CB 148 and CB 150.9).
On 5 April 2016, the Tribunal sent a letter by email to the applicants’ representatives authorised for that purpose (CB 159 to CB 162). The letter was addressed to the relevant migration agent at Parish Patience Immigration Lawyers, and enclosed an invitation to comment on the validity of the applicants’ application for review (CB 160 to CB 161). The Tribunal was of the view that the application made to it by the applicants was invalid as it was made outside of the relevant time limit (CB 161.5).
On 18 May 2016 the applicants’ representative emailed a copy of a written statement of the first applicant to the Tribunal (CB 175 to CB 177). The statement explained that the applicants had been unable to contact Mr Barrett after his initial assistance with their protection visa application. On 9 March 2016, the applicants’ son contacted the Minister’s department. The Minister’s department informed them that the applicants were in Australia unlawfully ([2] – [4] at CB 176). Further enquiries revealed that Mr Barrett had passed away, and that his MARA registration had lapsed on 30 August 2014 ([5] at CB 177).
On 3 June 2016, the Tribunal found that it did not have jurisdiction to review the delegate’s decision (CB 191 to CB 194). The Tribunal found that the applicants had been notified of the delegate’s decision in accordance with the relevant statutory requirements, the application was made to the Tribunal outside of the 28 day time limit, and the Tribunal had no discretion to extend the time in which the application could be made to it ([10] at CB 194).
Before the Court
By orders made, by consent, by a Registrar of the Court on 16 August 2016, the applicants were given the opportunity to file any amended application, further evidence by way of affidavit and written submissions. The applicants filed written submissions on 28 September 2017. In those submissions, the applicants’ solicitor indicated that they would seek leave at the hearing to rely on an amended application. At the hearing, leave was granted for the applicants to rely on the amended application, which was then also filed on 12 October 2017. At the hearing, the applicants’ solicitor also identified an error at [15] of the written submissions in that the reference to “30 September 2014”, should be a reference to “30 August 2014”. The Minister filed written submissions on 6 October 2017.
At the hearing, the applicants were represented by a solicitor. The Minister was represented by counsel.
Leave was granted to the applicants to amend their application by adding a further particular. The ground of the amended application is in the following terms:
“1. The Tribunal erred in finding that it did not have jurisdiction to review the decision of the Minister's delegate.
Particulars
The Tribunal took the view that the Applicants had been notified of the delegate's decision on 24 September 2014. This was incorrect because:
(a) The applicants had nominated their ‘migration agent’ as the authorised recipient for all correspondence concerning their application.
(b) The person to whom the delegate sent the notice of refusal was not, at the time the notice was sent, lawfully registered as a migration agent. The Applicants’ nomination of that person as their authorised recipient, by reference to him as their ‘migration agent’, had therefore lapsed before the notice was sent.
(c) The delegate was constructively aware that the previously authorised recipient was no longer a migration agent and had evidence that he was continuing to act as a migration agent. The delegate acted unreasonably by not considering whether to exercise the discretion in s494D(5) to not comply with s494D(1) and notify the Applicants accordingly, with the result that the purported notice was not lawfully sent.
(d) As a result of the delegate's error in sending the notice to the wrong person, or failing to consider the operation of s494D(5) the Applicants were taken, by operation of s494C(7) of the Migration Act 1958, to have received the notice only when they received a copy of it, which was on or after 9 March 2016.
(e) The Applicants applied to the Tribunal on 15 March 2016, which was within the period prescribed by reg 4.31 of the Migration Regulations 1994.”
The issue raised by the applicants’ ground is whether the notification of the delegate’s decision was validly sent to the applicants. The applicants proposed two reasons to argue that it was not.
First, there is no dispute that the notification was sent to Mr Barrett at an address in Bankstown, New South Wales, by letter dated 15 September 2014 (CB 128 to CB 143). The applicants assert that at the time of the sending of the notification of the delegate’s decision, Mr Barrett was no longer the applicants’ “authorised recipient” and therefore the sending of the notice to him was not authorised.
The applicants submit that at the time of making of their application for the visas, they were asked (by the relevant question on the application form), to choose from a number of options as to who should receive written communications from the Minister in relation to their case (see question 20 of Form 866B at CB 10.8).
The applicants indicated (by ticking the relevant box on the form), that such correspondence should be sent to their “[m]igration agent” (CB 10.9).
The applicants’ argument was that the application form (in which this election was made, that is, Form 866B) is a form “for appointing an authorised recipient” (for the purpose of receiving communications).
Further, in the applicants’ submission, a different form (“Form 956”) is not a form for appointing an authorised recipient. It is a form lodged by a registered migration agent (or an “exempt person”). In the current case, Mr Barrett, who was at the time of the protection visa application, a registered migration agent, did lodge such a form (CB 64 to CB 66).
In this form, one of the sections asks questions under the heading of “Authorised recipient” (CB 65.7). That part of the form was left blank by Mr Barrett. That is, in the applicants’ submission now, Mr Barrett did not indicate that he had been authorised to receive documents from the Minister on the applicants’ behalf.
The applicant submitted that in light of the above, Mr Barrett was not authorised by “this form” (that is, Form 956) to be the authorised recipient. In the applicant’s submissions, the only authorisation was in Form 866B at question 20 (CB 10.8) in relation to their “[m]igration agent” receiving “[a]ll written communications about their application”.
That is, the applicants sought to draw a distinction between Mr Barrett personally, and Mr Barrett as a registered migration agent. Their argument was that it was in the latter capacity, as a migration agent, that he was appointed to be their “authorised recipient”.
Mr Barrett ceased to be a registered migration agent 30 August 2014. This occurred prior to the delegate’s decision (made on 15 September 2014).
The applicants’ submission was that at the time of the delegate’s decision, the Minister had, at least constructive knowledge, that Mr Barrett was no longer a registered migration agent. Therefore, the applicants submitted that the notification of the delegate’s decision should not have been sent to his address.
The Minister’s constructive knowledge is said to arise because the Minister was, at the relevant time, the Office of the Migration Agents Registration Authority (“OMARA”).
Second, the applicants directed attention to s.494D(5) of the Act. At the time, that section was in the following terms:
“Section 494D
Authorised recipient
…
(5) The Minister need not comply with subsection (1), or the requirement in subsection (4) to give notice, if:
(a) the authorised recipient is not a registered migration agent (within the meaning of Part 3); and
(b) the Minister reasonably suspects that the authorised recipient is giving immigration assistance (within the meaning of that Part); and
(c) the Minister has given the first person a notice, by one of the methods specified in section 494B, stating that he or she does not intend to give the authorised recipient documents as mentioned in subsection (1).”
The applicant also directed attention to the delegate’s decision as follows (see CB 136.7):
“The applicants were contacted by the department on 13 August 2014 to invite them to attend an interview – the notice was sent by email to their appointed agent (folios 144 & 145). The agent emailed the department in relation to another matter on Sunday, 14 September 2014. In response to matters in that case, I emailed him on Monday, 15 September and reminded him, at 7:59am, of this interview at 11am that day. I therefore have no reason to believe he was not aware the (sic) present clients’ interview.”
The applicants’ submission was that the Minister was on actual notice that the migration agent, Mr Barrett, was continuing to give “migration assistance” at a time when the Minister had constructive knowledge that Mr Barrett was no longer a registered migration agent.
The applicants submitted that in all these circumstances, the delegate should have considered whether to give the applicants notice that the Minister was not, pursuant to s.494D(5) of the Act, going to comply with s.494D(1) of the Act. That is because their migration agent (Mr Barrett) was no longer a registered migration agent (by the time of the delegate’s decision).
It is important to note the Tribunal’s actual reasoning in determining that it did not have jurisdiction to review the delegate’s decision. That reasoning addressed the very argument now sought to be raised by the applicant before the Court.
In essence, the Tribunal reasoned that the applicants had been properly notified of the delegate’s decision. It found that the decision had been sent by registered post to the applicants’ “authorised recipient” on 15 September 2014, as was required by s.494D(1) of the Act ([7] – [8] at CB 193). That is, to the person to whom the applicants said they wanted correspondence to be sent.
Pursuant to s.494C(4)(a) of the Act, that person was notified of the delegate’s decision on 24 September 2014, and by operation of s.494D(2) of the Act, the applicants were notified of the delegate’s decision on the same date.
Section 412(1)(b) of the Act and reg.4.31(2) of the Migration Regulations 1994 (Cth) (“the Regulations”) required the application for review to the Tribunal to have been made within 28 days of the date of notification of the delegate’s decision (24 September 2014). That is, by 22 October 2014. It was not made by that date. Therefore the Tribunal found that it did not have jurisdiction to review the delegate’s decision.
The applicants were represented by Parish Patience Immigration Lawyers (“PPIL”) when they lodged their application for review to the Tribunal. This firm also represented the applicants before the Court.
PPIL made written submissions to the Tribunal (CB 179 to CB 185). To a significant extent, these submissions are similar to the submissions now before the Court. The Tribunal comprehensively (where relevant to the question of jurisdiction), addressed those submissions.
The question of the Tribunal’s jurisdiction is, as the Minister correctly submitted, an issue for the Court to decide (Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 at [19]).
As was confirmed before the Court, the gravamen of the applicants’ argument is that the applicants appointed their migration agent to receive correspondence on their behalf. Once Mr Barrett ceased to be a registered migration agent (which occurred before the date of the delegate’s decision), the correspondence from the delegate should have been sent to the applicants, and not their (former) migration agent.
The Minister referred the Court to Le v Minister for Immigration and Citizenship [2007] FCAFC 20; (2007) 157 FCR 321 (“Le”). This was also a case involving in part, s.494D of the Act.
In that case, a migration agent had been authorised to receive correspondence from the Minister in relation to a visa application (see Le at [4] – [16]). Prior to a decision being made on the application for the visa, the migration agent’s registration lapsed (Le at [16]). In the circumstances, the notification of the visa refusal was sent by the Minister’s delegate to the applicant personally, not at the address given as the “authorised recipient’s” address.
In that case, the Court at first instance found that the migration agent had abandoned his role as migration agent, and that the Minister was correct to have sent the notification to the applicant personally at another address (see Le v Minister for Immigration [2006] FMCA 1289).
On appeal, the Full Federal Court held, relevant to the current circumstances, and having regard to the express language of s.494D of the Act, that the notification should have been sent to the agent at his address such as to comply with the requirements of s.494D(1) of the Act (Le at [18] – [20]).
For current purposes, it is important to note the following from the Full Federal Court judgment in Le ([18], [21] and [27]):
“[18] However, that conclusion is not in accord with the express language of s 494D. The clear object of that provision is to empower the Minister to give documents to an applicant who has satisfied the requirements of s 494D(1). Once an applicant gives the Minister written notice of the name and address of another person as being authorised to receive documents, the Minister must give that other person any documents that the Minister would otherwise have given to the applicant, instead of giving them to the applicant.
…
[21] There is nothing in s 494D to suggest that the requirement of s 494D(1), for the Minister to give documents to the Authorised Recipient, comes to an end otherwise than as provided for in s 494D(3). Thus, until an applicant withdraws a notice given under s 494D(1) or varies such a notice, for example by substituting a different person or perhaps a different address, the Minister must give documents to the Authorised Recipient.
…
[27] There is no warrant in the language of s 494D for concluding that, simply because the Minister concludes that an Authorised Recipient is no longer at the address specified in an applicant’s notice under s 494D(1), s 494D ceases to operate. Section 494D is triggered by an applicant giving written notice of the name and address of another person. It operates until that notice is varied or withdrawn under s 494D(3), putting aside the possibility of a fictitious name and address or the death of the Authorised Recipient to the knowledge of the Minister Those cases do not apply here and nothing said here should be taken as having any application in such a case.”
Before the Court, the applicant sought to distinguish Le, and to argue that the facts in the current case were different.
First, in Le, the applicant in that case was found to have authorised the migration agent, by name, to receive correspondence on her behalf. The applicants submitted (as set out above), that in the current case, the authority to receive correspondence was given to the “migration agent”, and not Mr Barrett by name. Further, that Mr Barrett in the relevant form (Form 956) did not “tick” the relevant box (concerning “authorised recipients”).
To respectfully use the phrase of the Full Federal Court, the “express language” of s.494D is clear (Le at [18]).
The focus of s.494D(1) of the Act is on the applicant. That is, the applicant who gives notice to the Minister of the name and address of another person authorised to receive correspondence on the applicant’s behalf. The Minister must send such correspondence to that person, and not to the applicant.
In the current case, in the application for the visa, the applicants notified the Minister that they wanted the Minister to send correspondence to their migration agent (see question 20 of Form 866B at CB 10.8).
The applicants’ argument in part seeks to make a distinction between giving that authority to a “migration agent”, as opposed to identifying an authorised recipient by name.
However, when regard is had to the context in which question 20 (of Form 866B at CB 10.8) appears, it is clear that the applicants gave that authority to Mr Barrett (see question 16 at CB 10.1), and that correspondence should be sent to, in context, Mr Barrett’s address (question 16 and question 20 at CB 10).
When the applicants’ answers to questions 16 and question 20 (of Form 866B at CB 10) of the application form are read together, it is clear that the applicants engaged the provision of s.494D(1) of the Act. That is, the Minister was required to send correspondence to Mr Barrett at the address provided.
The applicants’ argument now depends on reading the applicants’ answer to question 20 in isolation to, and from, question 16 (of Form 866B at CB 10). In my view, that reading is not available. When regard is had to the entirety of this part of the application form, it is reasonable to draw the inference that the applicants’ intention was that correspondence be sent to Mr Barrett.
The “logic” of the questions 16 and 20 (of Form 866B at CB 10) are as follows. Question 16 is directed to whether the applicant received assistance with the completion of their application form.
If the answer is in the negative, the form directs the applicants (or applicant) to question 20 (of Form 866B at CB 10.8). If the answer is in the positive, then the form requires the name and address of this person, and specifically directs (by the subsequent question 17 and question 18, of Form 866B at CB 10), the applicant to question 20 (of Form 866B at CB 10.8).
In this light, the reference to “[m]igration agent” at question 20 (of Form 866B at CB 10.8), can only be properly and reasonably understood as the applicants notifying the Minister that they wanted correspondence sent to their migration agent who, at the time of the application, was Mr Barrett, at the address Mr Barrett provided in the application form.
At this point, the provision of s.494D(1) of the Act was engaged. That is, the Minister was compelled to send correspondence to Mr Barrett. That is, of course, unless otherwise advised by the applicants.
It is the case that in completing a Form 956 Mr Barrett did not complete that part of the Form 956 headed “Authorised recipient” (see CB 65).
However, the express language of s.494D(1) of the Act is clear. To engage the provision of s.494D(1) of the Act, such that the Minister is compelled to send correspondence to another person (the “authorised recipient”), what is required is that the applicants (or applicant) give to the Minister written notice of the name and address of another person authorised to receive correspondence on their behalf.
That is what the applicants did with their answers to questions 16 to 20 in Form 866B (at CB 10). There is nothing in the language of s.494D(1) of the Act that requires the “other person” (the “authorised recipient”) to give consent, or to fill out any other form (such as the Form 956).
The second point of distinction with Le which the applicant sought to put before the Court, was that in Le, no argument about s.494D(5) of the Act was put to the Full Federal Court in that case.
The applicants’ proposition here arose from arguments (as referred to above) about the Minister’s actual or constructive knowledge. That is, the Minister should have known that Mr Barrett was no longer a registered migration agent, and given what is set out at [27] above, had actual or at least constructive knowledge that he was no longer acting as their migration agent.
In short, as the Minister submitted, none of this affects the language of s.494D(1) of the Act. What is, with respect, clear from Le, is that once the applicants authorised Mr Barrett to receive correspondence on their behalf, the Minister was compelled to send correspondence to Mr Barrett until, or unless, the applicant varied that notice pursuant to s.494D(3) of the Act (Le at [21]).
In the current case, the applicants gave notice that correspondence was to be sent to Mr Barrett. Section 494D(1) of the Act was engaged. There is nothing to indicate any notice was given pursuant to s.494D(3) of the Act. Thus, irrespective of any argument as to constructive or actual knowledge, the Minister was compelled to send the notification to Mr Barrett. That is what the delegate did.
At the conclusion of the hearing before the Court, the applicant made general reference to Turcan v Minister for Immigration and Multicultural Affairs [2002] FCA 397 and in particular [30] – [32] of that case. That case does not assist the applicants now, as the paragraphs cited refer to an example of the Minister’s constructive knowledge, in the particular circumstances presented by that case. For the reasons already set out above, the issue as to actual or constructive knowledge in light of the express language of the legislation does not assist the applicant.
Conclusion
The Tribunal correctly found that it did not have jurisdiction to review the delegate’s decision. The application to the Court should be dismissed. I will make the appropriate order.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 16 April 2018
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