Fabillar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 836
•28 April 2021
Federal Circuit Court of Australia
Fabillar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 836
File number(s): MLG 302 of 2017 Judgment of: JUDGE EGAN Date of judgment: 28 April 2021 Catchwords: MIGRATION – sending of notice of refusal of visa to incorrect postal address – failure to make an obvious inquiry about a critical fact - first applicant deprived of opportunity to seek a merits review of the decision – Tribunal was in error in finding that the notice of refusal had been duly given – jurisdictional error – decision of Tribunal quashed. Legislation: Migration Act 1958 (Cth) ss 474B, 474C. Cases cited: Minister for Immigration and Border Protection v EFX17 [2021] HCA 9.
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
Number of paragraphs: 21 Date of last submission/s: 13 April 2021 Date of hearing: 9 March 2021 Place: Brisbane Solicitor for the Applicant: O’Sullivan & Ruffilli Counsel for the Applicant: Ms Germov Solicitor for the First Respondent: Mills Oakley Counsel for the First Respondent: Ms Lucas Second Respondent: Submitting appearance save as to costs ORDERS
MLG 302 of 2017 BETWEEN: MARY JANE FABILLAR
First Applicant
PRINCESS ASHLY FABILLAR
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE EGAN
DATE OF ORDER:
28 April 2021
IT IS ORDERED THAT:
1.The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
2.The Amended Application for Review filed on 11 October 2017 be granted.
3.The decision of the Administrative Appeals Tribunal made on 3 February 2017 be quashed.
4.A writ of mandamus issue directed to the Administrative Appeals Tribunal requiring it to determine according to law the Applicant’s Application for Review of the Second Respondent’s decision, and that the matter be remitted to the Administrative Appeals Tribunal for rehearing.
5.For the purpose of the Administrative Appeals Tribunal again determining the Applicant’s application, it be constituted by a different member than the member who handed down the decision on 3 February 2017.
6.The First Respondent pay the Applicant’s costs of and incidental to the Application for Review to be agreed or failing agreement to be taxed pursuant to r. 21.11 of the Federal Circuit Court Rules 2001 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN:
The first applicant is a citizen of the Republic of the Philippines. On 8 November 2012, she applied for Sub Class 820 and Sub Class 801 Partner visas on the basis of her marriage to her sponsor, namely one Edgardo Valeros, who was an Australian citizen. The second applicant is the child of the first applicant and her husband.
At a time shortly before the time that the first applicant applied for the visas, she nominated the address at “[street number and name omitted], Roxburgh Park, Melbourne, Victoria 3064” (‘the Roxburgh address’) as being her address for the receipt of correspondence from the Department. She did not nominate an email address for such purpose. [1]
[1] Court Book (CB) p. 11 – answer to question Q. 27.
On 8 November 2012, the Department sent a letter to the first applicant at the Roxburgh address notifying her of the grant to her of the Partner visa. On page 3 of such letter, under the heading “Changes to your contact details”, the following was written: [2]
[2] CB p. 65 – 67.
“Changes to your contact details
As we will need to contact you in relation to your Partner (Residence) (Class BS) application, it is important that you tell us immediately about any changes to your contact details (addresses, telephone numbers, email address). These changes can be notified by calling us on 131 881. Note that we will need to ask you a number of identity verification questions before we can make the changes. Note that failure to provide contact details to the Department could lead to the refusal of the permanent visa and cessation of the temporary visa.”
There is evidence before the Court that suggests that on 24 or 25 September 2014, a letter was sent by the Department to the first applicant at the Roxburgh address in the nature of a two (2) year document update request, but that such letter was not responded to by the first applicant.[3] A copy of that letter was unable to be retrieved at the time a search was conducted of the Department’s records on 17 November 2020. [4] The Court infers that such letter was sent to the Roxburgh address as there was no evidence before the Court, nor had there been any suggestion, of the making of any request for a change of such address for the receipt of correspondence as at, or before, September 2014.
[3] CB p. 69.
[4] Paragraph 16 of Affidavit of Ms Roberts filed on 18 November 2020.
There is further evidence that another letter was sent to the first applicant by the Department on 1 April 2016, and that there was also no response from the first applicant to such correspondence. [5] That letter was also sent to the Roxburgh address.
[5] CB p. 69.
It would appear that the letter of 1 April 2016 was also emailed to the first applicant’s husband’s email address. Annexure SXRS – 2 to the affidavit of Ms Roberts was referred to in paragraph 8 of Ms Robert’s affidavit, as was the letter from the Department to the first applicant dated 1 April 2016, as well as the “step and checklist” documents which formed part of such annexure. The email which first appears as part of annexure SXRS – 2 was as follows:
The Court accepts that the letter of 1 April 2016 and the step and checklist documents were annexed to an email sent to the first applicant’s husband’s email address on or about 1 April 2016. Annexure SXRS – 1 to Ms Robert’s affidavit is an internal Departmental record which, on its face, indicated that on 1 April 2016 the annexure SXRS – 2 documents were sent by post to the Roxburgh address, and by email to the first applicant’s husband’s email address.
Of note is that on the email in SXRS – 2, it was recorded that the first applicant’s husband was authorised to receive correspondence – presumably by email – on behalf of the first applicant. At the bottom of the email it was recorded that such email and attachments had been sent to the first applicant’s husband’s email address.
There was no response by the first applicant to the letter or email sent to her and to her husband’s email address on 1 April 2016.
Having not received any response to either the 2014 letter, or the 2016 letter and email correspondence, the Department sent a letter dated 31 August 2016 to an address which had been nominated by the first applicant as being her intended place of residence at the time that she filled out an incoming passenger card when she re-entered the country on 12 June 2016.[6] The address to which that letter was sent was at “[street number and name omitted], Craigieburn, Victoria 3064” (‘the Craigieburn address’). The note made by the departmental officer on 31 August 2016 was that the letter of that date had been sent to the first applicant’s “new address”. [7] That letter relevantly provided as follows: [8]
[6] Annexure A to affidavit of Julian Pipolo filed on 27 October 2020.
[7] See Note of 31 August 2016 appearing at p. 11 of Document 1 of EX 2.
[8] CB p. 69 – 71.
Of first note, the letter of 31 August 2016 was addressed to the first applicant at the Craigieburn address. The fact that that was done was consistent with the Department having been advised that that was to be the first applicant’s new address for the receipt by her of correspondence from the Department, even though the actual Craigieburn address was not recorded under the Departmental note of that date. [9] Secondly, it is of note that though on the first page of the letter it was recorded that the letter was to be sent by post, on the third and last page of that letter, it was inconsistently recorded that the letter was sent by email. That is of relevance because the 28 day time limit for the giving of a response to the letter was different depending upon whether the letter was sent by email or by post. If sent by post, the letter was taken to have been received 7 days from the date it was sent. If sent by email, the email was taken to have been received at the end of the day it was transmitted. Section 494C of the Migration Act 1958 (Cth) (‘the Act’) relevantly provided as follows:
[9] See Exhibit 2 at p. 11 – entry for 31/08/2016.
“Section 494C
When a person is taken to have received a document from the Minister
(1) …
Giving by hand
(2) …
Handing to a person at last residential or business address
(3) …
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.
Transmission by fax, email or other electronic means
(5) If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.”
Nothing in the material before the Court constituted evidence of the first applicant having ever expressly notified the Department of a change of address for the purpose of her receipt of documents from the Department, or of her having expressly authorised anyone else, including her husband, to receive documentation on her behalf. However, it is clear that by at least 1 April 2016, the Department had been advised that the first applicant’s husband had been authorised to receive correspondence on behalf of the first applicant via his email address (see annexure SXRS – 2), and that by 31 August 2016, the Department had been given details of the first applicant’s new address for the sending of correspondence. [10] Why else, then, would the Department have sent an email to the first applicant’s husband’s email address on 1 April 2016, and why else would the Department have sent a letter to the Craigieburn address on 31 August 2016.
[10] Paragraph 11 of Ms Robert’s affidavit.
The question as to whether or not a proper notice required to be given under the Act was valid or not was recently considered by the High Court in Minister for Immigration and Border Protection v EFX17 [2021] HCA 9 at [38] – [42] inclusive per Kiefel CJ, Gaegler, Keane, Edelman and Steward JJ as follows:
“[38] By notice of contention, the respondent sought to uphold the decision of the Full Court on the ground that s 501CA(3) of the Migration Act required the Minister to invite the respondent to make representations "within the period and in the manner ascertained in accordance with the regulations" and that the letter did not do so. This issue was raised by Rares J during the course of oral argument in the Full Court and the views of Rares J were adopted by counsel for the respondent. The issue was decided in the respondent's favour by Rares J and mentioned, but not decided, by Greenwood J. It was not suggested in this Court that the issue could have been affected by any additional facts or evidence.
[39] In his submissions in this Court, the Minister relied only upon the act of physically handing the letter to the respondent as the act by which the notice was "given" to the respondent. A separate submission that the email sent on 3 January 2017 to the Brisbane Correctional Centre involved "giving" the notice to the respondent was made by the Minister in the Full Court but abandoned in oral argument in that Court. It was not pressed in this Court by the Minister, who acknowledged that the email had not been sent to the email address nominated or permitted by the respondent. It was common ground that if the letter and enclosures complied with s 501CA(3) then the 28-day period would have started to run from 4 January 2017 when the letter and enclosures were delivered, and not from 3 January 2017.
[40] The obligation in s 501CA(3)(b) of the Migration Act required the Minister to invite the respondent to make representations about revocation to the Minister "within the period and in the manner ascertained in accordance with the regulations". The letter from the delegate of the Minister contained an invitation to make representations in the manner ascertained in accordance with the regulations: for instance, it provided that the representations must be in writing and in English or accompanied by an English translation, referring to reg 2.52. And it correctly referred to the 28-day timeframe for making representations, which could not be extended. But in the absence of any manner of ascertaining that 28-day period, and by incorrectly saying that the respondent was "taken to have received [the letter] at the end of the day it was transmitted [by email]" (which was 3 January 2017), the letter did not invite representations "within the period ... ascertained in accordance with the regulations".
[41] The Minister submitted that s 501CA(3)(b) did not require the Minister to specify the date by which representations must be made and he submitted that the period during which representations must be made may be left to the respondent to determine. These submissions can be accepted. But the words of s 501CA(3)(b) which require the Minister to invite a person to make representations "within the period and in the manner ascertained in accordance with the regulations" also require that there be sufficient information on the face of the invitation to permit the person to determine this period correctly. This conclusion is further supported by the condition upon the Minister's power to revoke the cancellation decision that representations be made within the prescribed time limit. It can hardly be supposed that Parliament intended that a person whose visa had been cancelled would not be given the information that would reveal the date by which representations must be made if the person is to avoid the strict consequences of failing to make representations.
[42] For these reasons, an invitation to make representations "within the period ... ascertained in accordance with the regulations" must crystallise the period either expressly or by reference to correct objective facts from which the period can be ascertained on the face of the invitation such as "28 days from the day that you are handed this document". The invitation in the letter from the delegate of the Minister did not do so. The notice of contention should therefore be upheld.”
(footnotes omitted)
By letter dated 13 October 2016, the Department gave notice to the first applicant of the refusal of her visa.[11] That letter provided that “An application for merits review of this decision must be given to the AAT within 21 calendar days after the day on which you are taken to have received this letter”. Why the letter was posted to the Roxburgh address, and not to the Craigieburn address, in circumstances where the departmental officer had recorded on 31 August 2016 that the Craigieburn address was the new address, was unexplained. There was also no explanation for the non-emailing of such correspondence to the first applicant’s husband’s email address in circumstances where it had earlier been recorded that that was an email address to which correspondence was authorised to be sent.
[11] CB p. 72 – 75.
Section 494B of the Act relevantly provided as follows:
“Section 494B
Methods by which Minister gives documents to a person
Coverage of section
(1) For the purposes of provisions of this Act or 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.
(1A) If a person is a minor, the Minister may use the method mentioned in subsection (4), (5) or (5A) to dispatch, transmit or make available a document to an individual (a carer of the minor ):
(a) who is at least 18 years of age; and
(b) who the Minister reasonably believes:
(i) has day-to-day care and responsibility for the minor; or
(ii) works in or for an organisation that has day-to-day care and responsibility for the minor and whose duties, whether alone or jointly with another person, involve care and responsibility for the minor.
Note:If the Minister gives an individual a document by the method mentioned in subsection (4), (5) or (5A), the individual is taken to have received the document at the time specified in section 494C in respect of that method.
(1B) However, subsection (1A) does not apply if subsection 52(3C) (which relates to giving notifications in the case of combined applications) applies in relation to the minor.
Giving by hand
(2) One method consists of the Minister (including by way of an authorised officer) handing the document to the recipient.
Handing to a person at last residential or business address
(3) Another method consists of the Minister (including by way of an authorised officer) handing the document to another person who:
(a) is at the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; and
(b)appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(c) appears to be at least 16 years of age.
Dispatch by repaid post or by other prepaid means
(4) Another method consists of the Minister dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b)by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Minister by 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
(iii)if the recipient is a minor – the last address for a carer or the minor that is known by the Minister.
Transmission by fax, email or other electronic means
(5) Another method consists of the Minister transmitting the document by:
(a) fax; or
(b) email; or
(c) other electronic means;
to:
(d) the last fax number, email address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents; or
(e)if the recipient is a minor – the last fax number, email address or other electronic address, as the case may be, for a carer of the minor that is known by the Minister.
Making document available by way of online account
(5A) Another method consists of the Minister making the document available by way of an online account of the recipient established for purposes relating to this Act or the regulations.
When the Minister hands a document by way of an authorised officer
(6)For the purposes of sections 494C and 494D, a reference in those sections to an act of the Minister includes, if the act is of a kind referred to in subsection (2) or (3) of this section, a reference to an act of the Minister by way of an authorised officer.
Documents given to a carer
(7)If the Minister gives a document to a carer of a minor, the Minister is taken to have given the document to the minor. However, this does not prevent the Minister giving the minor a copy of the document.”
Without arriving at a final view, this Court doubts whether the purported giving of notice in either the 31 August 2016 letter/email or the letter of 13 October 2016 crystallised any date by which there should be compliance, so as to render either letter valid for the purpose of giving notice. The internal inconsistency in the correspondence of 31 August 2016 as to whether such letter was sent by email or post, as referred to above, was not raised in argument before the Court, but had practical consequences. So too did the sending of the letter of 13 October 2016 to the wrong address. Those were both examples of the confused manner in which the Departmental officer assigned to the case had approached the question of the giving of notice.
However, quite apart from whether either such purported notice was valid or not in an EFX17 context, the Court is not satisfied that the provisions of s. 494B(4)(c) of the Act had been complied with so as to render valid the giving of notice of refusal of the visa by the 13 October 2016 letter. The letter was sent to the superseded Roxburgh address and returned to the Department. Had there been any doubt about the whereabouts of the applicant, the Department could readily have contacted the first applicant’s husband at his known email address to seek from him details as to how the first applicant might be given notice. By failing to do so, it failed to make an obvious inquiry about a critical fact. [12] Alternatively, the letter could have been emailed to the husband as well as being sent to the last known postal address for the first applicant, namely the Craigieburn address. Notice by post could only be validly given under s. 494B(4)(c)(i) and (ii) of the Act if given to the last known address, and that was not done.
[12] Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] – [27] per French CJ,
Gummow, Hayne, Crennan, Kiefel and Bell JJ.
The last postal address acknowledged by the Department as being the address for receipt of documents was the Craigieburn address. The Court finds that by sending the notice of refusal to the Roxburgh address, there was non-compliance by the Department with the provisions of the Act. The Court further finds that the Tribunal erred in finding that the sending of the notice to the incorrect postal address complied with the provisions of the Act. Such error was fundamental, and deprived the first applicant of an opportunity to assert the right, on review to the Tribunal, to have a visa issued to her.
The decision of the Tribunal was legally unreasonable, and one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The Tribunal’s error was jurisdictional in nature and ought to be quashed.
It is ordered that the decision of the Tribunal handed down on 3 February 2017 was made in error and is quashed.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 28 April 2021
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