COA15 v Minister for Immigration and Anor
[2017] FCCA 706
•11 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COA15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 706 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – no jurisdiction finding – review application to the Tribunal not lodged within time – applicant’s agent properly notified of the decision of the Minister’s delegate – whether the Minister’s Department held the current correct address for the applicant considered – no jurisdictional error. |
| Legislation: Freedom of Information Act 1982 (Cth) |
| Cases cited: Awon v Minister for Immigration [2015] FCA 846 Rana v Minister for Immigration [2014] FCA 1233 Sayadi v Minister for Immigration [2015] FCA 1235 SZJQC v Minister for Immigration [2007] FMCA 505 SZJUA v Minister for Immigration [2007] FCA 1184 SZTMZ v Minister for Immigration & Anor [2014] FCCA 2957 VEAN of 2002 v Minister for Immigration (2003) 133 FCR 570 |
| Applicant: | COA15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3265 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 10 April 2017 |
| Delivered at: | Sydney |
| Delivered on: | 11 May 2017 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms N Blake of Clayton Utz |
ORDERS
The application filed on 1 December 2015 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3265 of 2015
| COA15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 10 November 2015. The Tribunal found that it did not have jurisdiction in the matter because, by reference to s.412(1)(b) of the Migration Act 1958 (Cth) (Migration Act) and regulation 4.31 of the Migration Regulations 1994 (Cth) (Regulations) the review application to the Tribunal had not been made within 28 days after the applicant was notified of the decision of the Minister’s delegate to refuse to grant him a protection visa.
The following statement of background facts is derived from the submissions of the Minister filed on 25 August 2016.
The applicant is a citizen of Iran.[1]
[1] Court Book (CB) 99.
On 4 May 2013, the applicant arrived in Australia as an unauthorised maritime arrival.[2]
[2] CB 100.
On 2 August 2013, the applicant applied for the protection visa.[3]
[3] CB 1 - 63.
On 12 December 2014, the delegate refused to grant the protection visa.[4] By letter dated the same day addressed to the applicant's migration agent, who was authorised to receive communication on behalf of the applicant (authorised recipient),[5] the applicant was notified of the delegate's decision pursuant to s.66 of the Migration Act (notification of refusal).[6]
[4] CB 94 - 120.
[5] CB 31 - 33.
[6] CB 94 - 120; affidavit of Clyde Hungerford affirmed on 22 August 2016.
On 26 August 2015, the applicant applied to the Tribunal for review of the delegate's decision.[7]
[7] CB 121.
On 15 September 2015, the Tribunal wrote to the applicant by email addressed to his newly appointed migration agent inviting the applicant to comment on the Tribunal's view that his application was invalid due to it being lodged out of time.[8] The applicant's migration agent responded on 15 September 2015. Further communications were exchanged between the Tribunal and the migration agent in the period from 15 September 2015 until 29 October 2015.[9]
[8] CB 134 - 137.
[9] CB 138 - 146.
By email dated 29 October 2015 from the migration agent to the Tribunal, it was asserted, amongst other matters, that the applicant's “previous migration agent did not send a copy of the delegate's decision to [the applicant]”.[10]
[10] CB 144 - 146.
On 10 November 2015, the Tribunal found that it did not have jurisdiction.[11] It notified the applicant of its decision by email dated 10 November 2015.
[11] CB 151 [1].
Tribunal's findings
The Tribunal found that it had no jurisdiction to review the delegate's decision on the basis that:
a)in order to be valid, an application for review of the delegate's decision must be made within 28 days from the date the applicant was notified of the decision (prescribed time period), pursuant to s.412(1)(b) of the Migration Act and regulation 4.31 of the Regulations;[12]
b)the material before the Tribunal indicated that the applicant was notified of the delegate's decision by letter dated 12 December 2014 and despatched by post;[13]
c)the applicant was taken to have been notified of the decision on 23 December 2014 in accordance with s.494C(4) of the Migration Act;[14]
d)therefore, the prescribed period within which a valid application for review could be lodged ended on 20 January 2015;[15] and
as the application for review was received by the Tribunal on 26 August 2015 it followed that it was not made within the prescribed time period and the Tribunal had no jurisdiction in the matter.[16]
[12] CB 152 [4].
[13] CB 152 [5].
[14] CB 152 [6].
[15] Ibid.
[16] Ibid.
The present proceedings
These proceedings began with a show cause application filed on 1 December 2015. The applicant continues to rely upon that application. There is one ground in the application:
1. The Tribunal erred in law by failing to exercise its jurisdiction:
PARTICULARS
The applicant's representative made submissions to the Tribunal on the issue of jurisdiction, dated 29 October 2015. The Tribunal did not refer to these submissions in its decision. Not even a beneficial reading of the decision does not indicate that the Tribunal considered, but rejected, the contents of the submission. In failing to consider these submissions and make any findings as to whether these submissions affected the decision, or did not affect it, the Tribunal failed to exercise its jurisdiction.
(errors in original)
The matter came before me for a show cause hearing on 1 September 2016. At that time I was persuaded that the applicant should have the opportunity to file and serve further evidence bearing upon the question of whether he was correctly notified of the decision of the delegate. The matter was listed for a final hearing on 10 April 2017.
In addition to the court book filed on 16 February 2016, I have before me as evidence the applicant’s affidavit filed with his application, to which is annexed relevantly a complaint made by the applicant to the Migration Agents Registration Authority (MARA) on 26 August 2015 concerning his former migration agent, a statutory declaration by the applicant made on 23 November 2015 concerning the direction of the correspondence to the applicant by both his agent and the Minister’s Department, a letter from the Minister’s Department to the applicant dated 19 August 2014 at an address in Guildford (the Guildford address) inviting him to attend an interview before the delegate, a second letter from the Minister’s Department to the applicant at the Guildford address dated 25 August 2014, inviting him to attend an interview with the delegate, a letter dated 1 September 2014 to the applicant at an address in Glenwood (the Glenwood address) inviting him to attend an interview with the delegate, a letter dated 5 September 2014 from the applicant’s former agent to the applicant at an address in Greystanes (the Greystanes address) advising him of the invitation to attend the interview with the delegate and a letter dated 12 December 2014 from the Minister’s Department to the applicant at the Glenwood address notifying him of the refusal of his protection visa application.
I also received the following affidavits made on behalf of the Minister:
a)the affidavit of Clyde Hungerford made on 22 August 2016 dealing with the notification of the visa refusal to the applicant; and
b)the affidavit of Christabel Richards-Neville made on 22 December 2016, dealing, in particular, with the records of the Minister’s Department concerning the applicant’s address for receipt of documents or otherwise at various relevant times.
I also received the following exhibits tendered at the trial of this matter on 10 April 2017:
·Exhibit A1 – letter from Settlement Services International dated 5 December 2016 to the applicant at an address in Merrylands (the Merrylands address);
·Exhibit A2 – residential tenancy agreement dated 1 July 2014 for the Greystanes address;
·Exhibit A3 – telephone records for the applicant’s mobile telephone service between 1 March 2014 and 31 January 2015;
·Exhibit A4 – screenshot from the Minister’s Department’s computer database of records of addresses held for the applicant over time, released by the Minister’s Department to the applicant under the Freedom of Information Act 1982 (Cth); and
·Exhibit R1 – correspondence from the Minister’s solicitors to the applicant on 22 December 2016 providing Ms Richards-Neville’s affidavit to the applicant.
The applicant was cross-examined on his affidavit and the other documentary evidence at the trial of the matter on 10 April 2017.
Consideration
The following points are uncontroversial.
The Tribunal cannot override its jurisdictional limitations even if it is in the interests of justice to do so.[17] The statutory scheme provides no discretion to the Tribunal (or the Court) to extend the time in which the applicant can file an application for review with the Tribunal.[18] The Tribunal invited the applicant to comment on the late lodgement of his application for review and the validity of his application. It found, based on the material before it that the application for review was not lodged within the prescribed period.
[17] VEAN of 2002 v Minister for Immigration (2003) 133 FCR 570, 578 [33].
[18] Rana v Minister for Immigration [2014] FCA 1233 at [26] per Wigney J.
The Tribunal's duty was to determine whether it had jurisdiction to accept the application for review.[19] That section provides that an application for review of an "RRT – reviewable decision" must be in the approved form, be given to the Tribunal within the prescribed period, being a period ending not later than 28 days after the notification of the decision and be accompanied by the prescribed fee.
[19] Migration Act, s.412.
The delegate's decision was an "RRT-reviewable decision" as defined by s.411 of the Migration Act. Section 411(1)(d) of the Migration Act provided that a decision to refuse to grant a protection visa was a Refugee Review Tribunal reviewable decision.
Regulation 2.16 sets out the prescribed way in which notification of a decision of a visa application must be given. Regulation 2.16(3) provides that “the Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act”. One such method is despatch by prepaid post or by other prepaid means: s.494B(4). Section 494C(4) of the Migration Act provides that if the Minister gives a document to a person by the method set out in s.494B(4), the person is taken to have received the document seven working days after the date of the document where, as here, the document was despatched from a place in Australia to an address in Australia.
Section 494D(1) of the Migration Act provides that if an applicant gives the Minister written notice of the name and address of another person, the authorised recipient, authorised by the applicant to receive documents in connection with matters arising under the Migration Act and Regulations, the Minister must give the authorised recipient, instead of the applicant, such documents. Section 494D(2) provides that if the Minister gives a document to the authorised recipient an applicant is taken to have received it.
The controversy between the parties centres upon the notification of the delegate’s decision to the applicant, not to the authorised recipient. The applicant contends that the Tribunal was wrong to find that it lacked jurisdiction because he was not properly notified of the delegate’s decision. The fact that the applicant made a complaint to the MARA in August 2015 indicates that at that time he regarded the lack of notification as the fault of his former agent. The applicant’s statutory declaration and the documents annexed to it establish that there were problems in the notification of the delegate’s hearing invitation to him. The first invitation was sent to the Guildford address, the second also to the Guildford address and the third to the Glenwood address. A further letter from the applicant’s agent to him was sent to the Greystanes address dated 5 September 2014. The applicant maintains that the Greystanes address was his correct address at that time and continued to be his correct address at the time of the delegate’s decision. Nevertheless, the delegate’s decision was notified to the applicant at the Glenwood address.
The applicant moved house a number of times between July 2013 and the end of 2016. He appears to have been diligent in informing the Minister’s Department of his changes of address and his telephone records demonstrate regular contact, or attempted contact, from him to the Minister’s Department.
Exhibit A4 details the various addresses held in computer records of the Minister’s Department for addresses advised by or on behalf of the applicant from time to time. Relevantly, as at 6 August 2013 the applicant advised that he was living at the Glenwood address and as at 15 April 2014 he advised that he was living at the Guildford address which was also his address for correspondence. As at 26 August 2014 the applicant advised that he was living at the Greystanes address. He maintains that that was the correct address at the time of the delegate’s decision. Curiously, there is an entry as at 1 September 2014 that someone had advised the Minister’s Department that the applicant’s address for correspondence was the Glenwood address, where he had not resided since April 2014. The applicant maintains that he did not advise the Minister’s Department that the Glenwood address was his address for correspondence from 1 September 2014. He resisted attacks upon his credibility under cross-examination. Exhibit A3 discloses that the applicant telephoned the Minister’s Department on 26 August 2014 when the record of his residential address was changed to the Greystanes address. There was no call on 1 September 2014 and it is curious that that entry appears out of time sequence, before the change to the Greystanes address.
It is certainly possible that the identification of the Glenwood address as the address for correspondence from 1 September 2014 was a mistake. There is no evidence about whose mistake it was, although the applicant’s complaint to the MARA and his statutory declaration strongly suggest that it was the mistake of his agent. At [4] of his statutory declaration the applicant says that the Minister’s Department sent the final interview invitation letter to him at his Glenwood address on 1 September 2014. This is corroborated by the court book at CB 66. The applicant continues that the agent “sent the invitation letter to my Greystanes address on 5 September 2014 after I told him that he sent the letter to the wrong address”. The hearing invitation had been sent to the applicant’s agent as authorised recipient on 1 September 2014 as well as to the applicant at the Glenwood address. At [2] of his statutory declaration the applicant says that after he moved to the Greystanes address at the end of July 2014 he spoke to his agent’s office and requested mail to be sent to the Greystanes address.
The notification letter following the delegate’s decision was sent to the applicant’s agent as authorised recipient as well as to the applicant at the Glenwood address. The applicant claims that he did not receive the notification although he concedes that his agent telephoned him to tell him of the adverse decision. At CB 123 is a letter dated 16 December 2014 to the applicant at the Guildford address informing him of his review rights before the then Refugee Review Tribunal. The applicant says that he did not receive that letter because it was sent to an out of date address.
I accept that the applicant did not intend to use the Glenwood address for the receipt of correspondence after 15 April 2014 although it was that address that was entered in the Minister’s Department’s database as his postal address from 1 September 2014. I accept that the applicant did not receive direct notification of the delegate’s decision because of confusion about his residential or postal address, causing correspondence to be sent to the wrong address by both the Minister’s Department and the applicant’s migration agent. That is unfortunate, although the applicant was not in ignorance of the delegate’s decision, having been informed of it orally. More importantly, the applicant’s agent, as the authorised recipient, had been notified in writing of the delegate’s decision. The Minister’s legal obligation at the time was to notify the authorised recipient rather than the applicant personally.[20] Section 494D(2) makes clear that if the Minister gives the document to the authorised recipient, an applicant is taken to have received it. It follows, in my view, that the Tribunal’s finding that it did not have jurisdiction in the matter was correct:
a)the notification letter was sent by registered post to the authorised recipient at his last known address for correspondence, namely Suite 807, Level 8, 35-40 Spring Street, Bondi Junction NSW 2022. The registered letter was despatched on 15 December 2014 to that address;[21]
b)the applicant is taken to have been notified of the decision on 23 December 2014;[22]
c)the prescribed period within which the review application could be made ended on 20 January 2015;[23] and
d)the Tribunal did not receive the applicant's application for review until 26 August 2015.[24]
[20] Migration Act, s.494D(1).
[21] See affidavit of Mr Hungerford 22 August 2016 at [9].
[22] Migration Act, ss.494C(4) and 494D(2).
[23] Migration Act, s.412.
[24] See; SZJUA v Minister for Immigration [2007] FCA 1184 at [28] per Gilmour J; see also SZJQC v Minister for Immigration [2007] FMCA 505, Durrani v Minister for Immigration [2005] FCA 629 at [24] per Sackville J.
To the extent the applicant attempts to establish extenuating circumstances for his delay in submitting his application for review to the Tribunal, by reason of his authorised recipient failing to send the delegate's decision to him at his correct address, that cannot assist him in these proceedings.
In any event, there is evidence before the Court that the applicant's migration agent contacted the applicant by telephone on 17 December 2014 and informed him “about a negative decision on my refugee application” (although the applicant asserts he was never sent a copy of the delegate's decision).[25]
[25] Applicant's statutory declaration dated 23 November 2015 at [6].
Secondly, taken at its highest, the applicant complains that his agent was negligent. However, it is well established that mere negligence, inadvertence or incompetence on the part of an agent representing a visa applicant does not give rise to jurisdictional error permitting judicial intervention.[26]
[26] Minister for Immigration v SZLIX (2008) 245 ALR 501 at [33].
Therefore, even if the conduct of a third party were capable of overcoming the jurisdictional barrier imposed by s.412(1)(b) of the Migration Act and regulation 4.31 of the Regulations, which was rejected in Awon v Minister for Immigration,[27] the alleged conduct of the applicant's agent does not rise to a level capable of enlisting the jurisdiction of this Court.[28]
[27] [2015] FCA 846.
[28] See also Sayadi v Minister for Immigration [2015] FCA 1235 at [19] and SZTMZ v Minister for Immigration & Anor [2014] FCCA 2957 at [31].
Nevertheless, the apparent confusion over the applicant’s address for the receipt of correspondence at a critical time for him is most unfortunate, especially as he appears to have been diligent in attempting to keep both the Minister’s Department and his agent up to date on his periodic changes of address. It is hard to avoid a conclusion that the apparent confusion has resulted in injustice. In the circumstances governed by the relevant provisions of the Migration Act, however, the Court is not in a position to remedy that injustice. It is a matter that the Minister could consider if he was so minded.
Conclusion
The applicant has failed to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I so order.
I will hear the parties as to costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 11 May 2017
0
9
4