CWL17 v Minister for Immigration

[2017] FCCA 2664

FEDERAL CIRCUIT COURT OF AUSTRALIA

CWL17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2664

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

PRACTICE & PROCEDURE – Whether the Administrative Appeals Tribunal complied with Section 494B(4) of the Migration Act 1958 (Cth) in notifying the applicant of the refusal of her protection visa application – writs issued.

Legislation:
Migration Act 1958 (Cth), ss.494B, 494C
Migration Regulations 1994 (Cth), reg.2.16

First Applicant: CWL17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2041 of 2017

Judgment of: Judge Emmett

Hearing date: 31 October 2017

Date of Last Submission: 31 October 2017

Delivered at: Sydney

Delivered on: 8 November 2017

REPRESENTATION

Applicant appeared in person with assistance of a Mandarin translator

Solicitors for the Respondents: Ms Sharon Sangha (Mills Oakley)

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 2041 of 2017

CWL17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By application filed on 28 June 2017, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal dated 19 June 2017 (“the Tribunal”). The Tribunal determined that it had no jurisdiction to consider the applicant’s application for review of a decision by a delegate of the first respondent (“the Delegate”) refusing the applicant a protection visa. The Tribunal found that the application for review was lodged outside the prescribed period and was invalid.

2. The applicant was unrepresented before the Court, although had the assistance of an interpreter.

3. The applicant confirmed that she attended a directions hearing before a registrar of the Court on 28 September 2017.  At that directions hearing, the applicant was given leave to file and serve an amended application, any further evidence and submissions in support.  The first respondent was also directed to file and serve any evidence and submissions in support. The first respondent filed an affidavit on 23 August 2017, the Court Book on 5 September 2017 (marked Exhibit 1R) and submissions on 11 October 2017.

4. The applicant confirmed she had not filed any documents either in accordance with those directions or otherwise and that she continued to rely on the grounds of her application. Those grounds are as follows:

   “1. Department of Immigration made a mistake.

   2. AAT didn’t find the mistake and continued to make this mistake.

   3. My postal address is PO BOX [number redacted] AUBURN. However, the Department of Immigration didn’t send the letter to my postal address.”

5. Those grounds were interpreted for the applicant and she was invited to say whatever she wished in response. The applicant said no more than that she did not receive the notification letter.

6. Grounds 1 and 2 do not disclose any error capable of review by this Court. Ground 3 is not a ground which assists the applicant in any way. I read Ground 3 as a misunderstanding by the applicant of the issues in the matter before this Court or as an inept way of asserting that she did not receive the letter. 

7. I explained to the applicant that if the statutory regime notifying her of the decision of the Delegate refusing her protection visa application had been complied with, then the fact that she had not received the letter would not be sufficient to demonstrate jurisdictional error on the part of the Tribunal.

8. There is nothing before me to suggest that the applicant in fact was notified. Whilst the applicant did not give sworn evidence that she did not receive the notification letter, it was at the heart of her complaint to this Court. The first respondent did not suggest otherwise. Nor did the first respondent require the applicant to give sworn evidence to that effect. In those circumstances, I understood that the matter proceeded on the basis that the first respondent accepted that the applicant did not receive the letter from the Department dated 6 February 2017 sent to her Post Office Box address. As stated above, the first respondent was relying on the deeming provisions in s.494C of the Act.

9. The Tribunal held that the applicant was deemed to have been notified of the Delegate’s decision by letter dated 6 February 2017 dispatched by post to the applicant’s Post Office Box address. The Tribunal was satisfied that the letter was sent in accordance with the statutory requirements.

10. Regulation 2.16 of the Regulations states that the Minister for Immigration and Border Protection (“the Minister”) must notify the applicant of a decision to refuse to grant a visa by one of the methods specified in s.494B of the Act.

11. Section 494B(1) of the Act states as follows:

    “Methods by which Minister gives documents to a person

    Coverage of section

    (1)  For the purposes of provisions of this Act or the regulations that:

    (a)  require or permit the Minister to give a document to a person (the recipient ); and

    (b)  state that the Minister must do so by one of the methods specified in this section;

    the methods are as follows.”

12. One of the methods specified is dispatch by prepaid post or by other prepaid means. That was the method by which the Minister chose to notify the applicant of the refusal of her protection visa application.

13. As stated above, on 6 February 2017, the Department wrote to the applicant at her Post Office Box address notifying her of the refusal of her application for a protection visa. Pursuant to s.494B(4)(c)(i) and (ii) of the Act, relevantly, the method requires the Minister to dispatch that document as follows:

    ““(4)  Another method consists of the Minister dating the document, and then dispatching it:

    …

    (b)  by prepaid post or by other prepaid means; and

    (c)  to:

    (i)  the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or

    (ii)  the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; or

    …”

    (emphasis added)

14. The first respondent relied on the deeming provisions in s.494C(4) of the Act that provided as follows:

    “Dispatch by prepaid post or by other prepaid means

    (4)  If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:

    (a)  if the document was dispatched from a place in Australia to an address in Australia--7 working days (in the place of that address) after the date of the document; or

    (b)  in any other case--21 days after the date of the document.”

15. However, the deeming provisions in s.494C(4) of the Act are only enlivened in circumstances where s.494B(4) of the Act has been complied with by the Department.

16. I raised with the first respondents solicitor if there was an issue as to whether the applicant had identified an address for service for the purposes of s.494B(c)(i) as her Post Office Box address. When I raised this issue with the first respondent’s solicitor, I gave her a short adjournment to seek instructions. When she returned the solicitor said that the first respondent wished to continue to oppose the claim for relief but wanted and adjournment to consider whether further evidence or submissions should be filed. In my view, the issue I raised should have been apparent to the first respondent, and the first respondent either should have raised it and dealt with it in the first respondent’s written submissions as a model litigant (albeit not raised by the applicant) or been in a position to deal with it in oral submissions. The bundle of relevant documents had been prepared by the first respondent, tendered and marked Exhibit 1R. In the circumstances, the first respondent had every opportunity to put on any evidence to be relied upon, together with submissions in support, both of which the first respondent did. Accordingly, the first respondent’s application for an adjournment was refused. The first respondent’s solicitor had an opportunity to make oral submissions on the issue.

17. As stated above, the notification letter was sent to the applicant at her Post Office Box address.

18. In her application for a protection visa, the applicant answered the following questions in relation to contact details as follows: 

    Question 37

    37 Your current residential address in Australia

    Note: A post office box address is not acceptable as a residential address. Failure to give a residential address will result in your application being invalid.

[street number and name redacted]

Lidcombe

NSW  Postcode 2141

Question 38

38 Your current postal address in Australia

(if the same as residential address, please write ‘same as residential’)

PO Box [number redacted]

Auburn

NSW    Postcode 1835

Question 39

39 Your telephone numbers

Office hours  (Area code    )

After hours  (Area code    )

Mobile/cell  [actual phone number redacted]

Question 40

40 Do you have any email addresses?

Note: Include all personal, student and work email addresses.

Do not include migration agent email addresses

No X

Yes > Provide all of your email addresses

Question 41

41 Do you agree to the department communicating with you by fax, email, or other electronic means?

No X

Yes  > Give details

Email address to be used for communication with the department

Fax number (Area code   )

Note: Electronic communication is the department’s preferred method of communication.”

1. The Note to Question 41 makes clear that electronic communication is the Department’s preferred method of communication. None of the other questions suggest any preference or make any reference to “an address for service”, being the language of s.494B(c)(i) of the Act.

2. Certainly, none of the questions asked for an address for service, such as would satisfy s.494B(c)(i) of the Act.

3. In particular, neither question 37 nor question 38 of the applicant’s protection visa application identifies either her residential address or her postal address as the address provided by the applicant as the only address for service.

4. There is no evidence before this Court of any address provided by the applicant, other than as specified in Question 37 and Question 38 above, neither of which made any reference to an address for service. I do not accept the submission that by providing a Post Office Box address in response to the question “your current postal address in Australia” is in any way making clear to an applicant that such an address would be accepted by the Minister as the applicant’s “address for service” in the terms required by s.494B(c)(i) of the Act. Particularly where the applicant had provided a residential address.

5. I do not accept that a postal address necessarily is the same as an “address for service” without any further clarification on the form. I do not accept that it is reasonable to expect an applicant to understand that by providing a postal address, that that is the only address which the Minister would use for service of documents, let alone documents as important as notification to the applicant that her protection visa application had been refused. In the circumstances, I find that there was no address for service provided by the applicant that would enable the Minister to comply with regulation 2.16 of the Regulations by use of the method specified in s.494B(c)(i) of the Act.

6. As there was no address identified by the applicant as an “address for service”, the Minister was unable to send the notification letter to the applicant in compliance with s.494B(4)(c)(i) of the Act.

7. The applicant did provide her residential address. In those circumstances, s.494B(4)(c)(ii) of the Act was capable of compliance, had the Minister sent to the applicant the notification letter refusing her protection visa application addressed to her at her residential address as disclosed in her visa application form. However, the Minister did not notify the applicant at her residential address, being the address provided in answer to question 37 of her protection visa application.

8. The Minister failed to give the applicant notice of the decision of the Delegate refusing her visa application. In those circumstances, the first respondent does not have the benefit of the deeming provisions in s.494C of the Act as it did not give notice to the applicant in accordance with the statutory regime provided in s.494B of the Act.

9. The Tribunal erred in being satisfied that the applicant was notified of the decision in accordance with the statutory requirements, thereby committing jurisdictional error. 

10. In the circumstances, the decision of the Tribunal should be set aside and the matter remitted to the Tribunal for determination according to law and writs should issue.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 8 November 2017