FVKL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 306
•22 February 2021
FVKL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 306 (22 February 2021)
Division:GENERAL DIVISION
File Number: 2020/8094
Re:FVKL
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:22 February 2021
Place:Brisbane
Pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth), the application for review is dismissed.
.........................[sgd]...............................................
Senior Member Theodore TavoularisCatchwords
MIGRATION – no jurisdiction - notification of non-revocation decision - whether decision was properly notified – applicant serving a period in criminal custody - delegation of power under s 501G – whether any error in the notification can be cured by the deeming provision in reg 2.55(9) – application out of time - application dismissed
Legislation
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Legislation Act 2003 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)Cases
EFX17 and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 273 FCR 508
Nikolovski & Minister for Immigration and Border Protection [2018] AATA 558
Pomare v Minister for Immigration and Citizenship (2008) 167 FCR 494
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Sillars v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1313
Wilson v Minister for Immigration and Citizenship [2012] FCA 1421; 135 ALD 60Secondary Materials
Citizenship and Social Cohesion Group and Immigration and Settlement Services Group (Minister) Instrument 2019
Migration Amendment Regulations 2008 (No. 8), Explanatory Statement, Legislative Instrument 2008 No 237REASONS FOR DECISION
Senior Member Theodore Tavoularis
22 February 2021
PRELIMINARY ITEMS
The hearing of the substantive application in this matter was listed before the Administrative Appeals Tribunal (“Tribunal”) for an interlocutory hearing on 17 December 2020. At issue was whether the Applicant was notified of the Respondent Minister’s decision of 13 August 2019 (“the Decision”) in accordance with s 501G of the Migration Act 1958 (Cth) (“the Act”) and reg 2.55 of the Migration Regulations 1994 (Cth) (“the Regulations”).
The interlocutory hearing proceeded by way of telephone. Prior to compilation of these reasons, the Tribunal received a number of documents relevant to the issues, each of which has now been particularised into an Exhibit Register, a true copy of which is attached hereto and marked “Annexure A”.
FACTUAL BACKGROUND
The Applicant was a Class XB Subclass 200 (Refugee) visa holder from Burundi who arrived in Australia in 2007.
On 14 December 2017, while serving a full-time custodial sentence in Mount Gambier Prison, the Applicant’s visa was cancelled pursuant to s 501(3A) of the Act by a delegate of the Respondent Minister. The Respondent Minister was required to do this because the Applicant did not pass the character test due to him being sentenced to a term of imprisonment of 12 months or more.[1]
[1] Migration Act, ss501(3A)(a)(i), (6) and (7)(c).
Consistent with s 501CA(3)(b) of the Act, the Respondent Minister invited the Applicant to make representations about the revocation of the decision made pursuant to s 501(3A) of the Act. Via a form dated 27 December 2017, the Applicant made those representations for the Respondent Minister to revoke the mandatory cancellation decision dated 14 December 2017.
On 13 August 2019, a decision not to revoke the cancellation of the visa was made by a delegate of the Respondent Minister. On 14 August 2019, correspondence from a delegate of the Respondent Minister, referred to as ‘Case Manager – Character Cancellation Taskforce’, attaching the notification package of documents was sent to Mount Gambier Prison where the Applicant was incarcerated while serving a period of criminal custody. The cover email contained the following message:
“On 14 December 2017, a delegate of the Minister for Immigration and Border Protection cancelled the visa held by [the Applicant], pursuant to s501(3A) of the Migration Act 1958.
[The Applicant] subsequently requested revocation of the visa cancellation (original decision).
The revocation request been finalised with a decision not to revoke the original decision, and therefore [the Applicant]’s visa remains cancelled.
Accordingly, [the Applicant] remains an unlawful non-citizen and following his release from criminal custody the Department will make arrangements for his immigration detention pending removal from Australia.
It is important for legal reasons that the full notification package attached to this email is handed to [the Applicant] as soon as possible. If [the Applicant] is moved to another prison before the notification can be handed to him, please advise this office immediately.
You may note that the attached notification package is in duplicate, this being a requirement in the event [the Applicant] wishes to lodge a review application at the Administrative Appeals Tribunal (AAT). Please advise [the Applicant] that he has 9 days from the date of receipt* of the attached notification package to lodge an AAT review application.
* [The Applicant] will be taken to have received notification when the attached is handed to him.
Kindly confirm delivery of the notification to [the Applicant] by returning a signed copy of the acknowledgement (on page 3 of the attached notification letter) by email to: [email address redacted
Thankyou for your assistance. Do not hesitate to contact the NCCC if you have any queries.
Regards,”[2]
[Emphasis in original]
[2] Exhibit 2, Correspondence between the Department and Mount Gambier Prison, page 2.
This notification was actualised by the provision of the notification package, including the decision not to revoke the cancellation, being handed to the Applicant by Mount Gambier Prison’s “Case Management Coordinator”. Contemporaneous with provision of the material to the Applicant, the “Case Management Coordinator” produced a duly signed acknowledgment of receipt by the Applicant to the Respondent Minister’s delegate on 15 August 2019. The following was contained in the cover email from the “Case Management Coordinator” to the delegate of the Respondent Minister:
“I have printed and hand delivered all of the document [sic] to [the Applicant] today at 11:30 at Mount Gambier prison. He has acknowledged and signed the following document.”[3]
[3] Exhibit 2, Correspondence between the Department and Mount Gambier Prison, page 1.
On 8 December 2020, the Applicant applied to this Tribunal for review of the decision under review.
THE ISSUES
Section 500(6B) of the Act stipulates the time period for an Applicant within the migration zone to lodge an application for review of a non-revocation decision with this Tribunal once they have received a non-revocation decision from the Department:
“If a decision under section 501 of this Act, or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa, relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1)…”
The Applicant was notified of the decision under review on 15 August 2019 but did not apply to this Tribunal until 8 December 2020. This is over 15 months outside of the statutory requirement of nine days under s 500(6B) of the Act.
Section 500(6B) of the Act further stipulates that ‘paragraph 29(1)(d) and subsections 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 do not apply to the application.’ The effect of this is that the Tribunal’s power to extend the nine day period has been removed without discretion and the nine day time limit must be strictly applied.
The Applicant contends however that ‘as a result of non-compliance with s 501G(3), the applicant has not been given notice in accordance with s501G(1) of the Act, and so the period of nine days has not commenced to run, and thus has not expired’.[4]
[4] Exhibit 3, Applicant’s submissions dated 8 December, paragraph 3.
The issue before the Tribunal, to my mind, devolves into two specific questions. First, has the Applicant been properly notified of the decision of a delegate of the Respondent Minister, being the decision under review dated 13 August 2019? In particular, has notification of this decision occurred in accordance with s 501G of the Act and reg 2.55 of the Regulations?
Second, if the answer to the first question is “No”, meaning that the Tribunal finds an error in the manner by which the notification package was given to the Applicant, does the deeming provision in reg 2.55(9) of the Regulations operate to cure any such defect?
If the answer to either of the abovementioned two questions is “Yes”, then this Tribunal is bound to find that the application to review the abovementioned decision by the delegate is out of time pursuant to s 500(6B) of the Act. That section required the Applicant to lodge an application with this Tribunal within nine days of being properly notified of the Decision made by the delegate.
HAS THE APPLICANT BEEN PROPERLY NOTIFIED?
Section 501G(1) of the Act requires that if a decision is made under s 501CA of the Act not to revoke a decision to cancel a visa, as is the case in this application, the Respondent Minister must give the relevant person (the Applicant) notification of the decision which does each of the things in sub-paragraphs (c) to (f). It is not in dispute that the notification package provided to the Applicant on 15 August 2019 was in accordance with s 501G(1) of the Act.
Section 501G(2) of the Act requires that this notification under s 501G(1) of the Act is accompanied by two copies of every document relating to the decision that (1) is in the delegate’s possession or under the delegate’s control, (2) was relevant to the making of the decision, and (3) does not contain non-disclosable information. It is not in dispute that the notification package which was provided to the Applicant on 15 August 2019 was in accordance with s 501G(2) of the Act.
What is in contention is whether or not s 501G(3) of the Act has been complied with, which provides that “[a] notice under subsection (1) must be given in the prescribed manner.”
The ‘prescribed manner’ refers to reg 2.55 of the Regulations which contains the requirements for the giving of documents relating to, inter alia, a decision not to revoke a decision to cancel a visa under s501CA of the Act.[5] Regulation 2.55(4) of the Regulations requires that documents relating to the decision not to revoke a decision to cancel a visa under s 501CA of the Act had to be given to the Applicant in one of the ways mentioned in reg 2.55(3) of the Regulations.
[5] Regulation 2.55(1)(c).
In his submissions, the Applicant makes reference to reg 2.55(3) of the Regulations and says the following:
“29. In the present case, notification of the decision was given to {the Applicant} in the manner described … above. This notice was not given in accordance with any of the methods prescribed by reg 2.55(4) for the purposes of s 501G(3). In particular:
29.1. The relevant documents were not given by “handing it to the person personally” in accordance with the method referred to in reg 2.55(3)(a). In context, this refers to the Minister, or a delegate, handing a document to the person personally. If any confirmation was needed, the terms of reg 2.55(5) (which can only be a reference back to reg 2.55(3)(a)) confirm that reg 2.55(3)(a) contemplates the Minister (accepting that this includes a person with a delegation for the purposes of ss 501G or reg 2.55) doing the “handing”.
29.2. The word “personally” indicates that this task cannot be performed through an agent. Further and in any event, in the present case, the Case Manager – Character Cancellation Taskforce did not “hand” the relevant documents “personally” to anyone. Rather, he or she sent an email requesting that an officer of the State Department of Correctional Services print off the documents and hand them to {the Applicant}. So, while it is true to say that {the Applicant} received the documents by being “handed” them, it cannot be said that the Minister gave the documents to the {the Applicant} by “handing them to [him] personally”.
29.3. Nor were the relevant documents given by “handing [them] to another person” in accordance with the method referred to in reg 2.55(3)(b). As indicated above, the Minister did not “hand” the documents to anyone.
29.4. The documents were not dispatched by prepaid post or other prepaid means, and so were not given in accordance with the method referred to in reg 2.55(3)(c).
29.5. The documents were transmitted by email, but not to “the last email address … known to the Minister” as required by the method referred to in reg 2.55(3)(d). “[T]he last email address … known to the Minister” is clearly a reference to the last email address of the person to whom the decision relates. The documents were only transmitted by email to the address of an officer of the State Department of Correctional Services, not to {the Applicant}.”[6]
[6] Exhibit 2, pages 7–8. Note: for this quote, while unconventional, I have opted to use so-called “curly-braces” to mark my amendments to the text, so that they can be distinguished from those amendments which appear in the original
The email address for which the delegate of the Respondent Minister had sent the email notification through to Mount Gambier Prison on 14 August 2019 appears to be an email address made available by the prison for email communication with its prisoners via the administrative staff at the prison only. I am therefore satisfied that for the present application, the only relevant method of notification that applies is reg 2.55(3)(a) of the Regulations, which provides:
“…the Minister must give the document in one of the following ways:
(a) by handing it to the person personally; […]”
While the Applicant accepts that the notification package was handed to the Applicant by the “Case Management Coordinator” on 15 August 2019, the Applicant nevertheless propounds a position of non-compliance with reg 2.55(3)(a) of the Regulations. The essence of this contention is that only the Respondent Minister or a person delegated under s 501G of the Act and reg 2.55 of the Regulations can validly hand the delegate’s decision to the Applicant pursuant to reg 2.55(3)(a) of the Regulations.
CAN THE EXERCISE OF THE NOTIFICATION OF THE DECISION UNDER S 501G OF THE ACT AND REG 2.55 OF THE REGULATIONS BE DELEGATED?
Section 496(1) of the Act relevantly provides:
“The Minister may, by writing signed by him or her, delegate to a person any of the Minister’s powers under this Act.”
For present purposes, the relevant instrument of delegation comprises the Citizenship and Social Cohesion Group AND Immigration and Settlement Services Group (Minister) Instrument 2019 (the “Instrument of Delegation”).[7] The Exhibited version of the Instrument of Delegation commenced on 1 July 2019.[8] It is the version which had effect at the time of provision of the notification package to the Applicant. For present purposes, the effect of ss 7(1) and (3) of the Instrument of Delegation is that the table in Schedule 2 contains information about who is delegated specific powers to do specific things under the Act and the Regulations.
[7] See Exhibit 3, Annexure thereto.
[8] See s 2.
The table works as follows. The various powers and functions under the Act are enumerated in column 1. There are many sub-columns in columns 3, each corresponding to an Australian Public Service (“APS”) “classification level” under the Australian Public Service Act 1999 (Cth). If there is an ‘X’ in column 3, that indicates that a person who is both (1) within the Citizenship and Social Cohesion Group or the Immigration and Settlement Services Group; and (2) at the classification level identified by that ‘X’ can exercise the power in column 1 of that particular row.
For present purposes, two rows of Schedule 2 in the Instrument of Delegation are relevant. First, with reference to s 501G of the Act (“Refusal of visa – notification of decision”), the table indicates that the following classification levels hold a delegation to fulfil the Minister’s obligation to “give the person a written notice” which meets the requirements set out in s 501G: APS4–APS6; EL1–EL3; and SES1–SES3.
Second, with reference to regulation 2.55 (“Giving of documents relating to proposed cancellation, cancellation or revocation of cancellation”), the table indicates that the following classification levels hold a delegation to “hand [a document] to the person personally”: APS3–APS6; EL1–EL3; and SES1–SES3.
It is plain that the “Case Management Coordinator” at the Mount Gambier Prison cannot, as a practical matter, be found to hold any APS qualification. Nor is it possible that person is a member of the “Citizenship and Social Cohesion Group” or the “Immigration and Settlement Services Group”. I therefore find that the power under s 501G of the Act and reg 2.55 of the Regulations is not capable of being delegated to the “Case Management Coordinator” at the Mount Gambier Prison and can only be exercised by either the Minister or a person who has been delegated under the Instrument of Delegation.
I find that in the circumstances of this matter, the person who is exercising the power under s 501G of the Act and reg 2.55 of the Regulations is the “Case Manger – Character Cancellation Taskforce”, who I further find is a person who does have the relevant delegation under the Instrument of Delegation. I therefore agree with the Respondent Minister’s submission on the confined point to be determined:
“There’s no dispute about delegation in this case. It’s clear the officer of the gaol wasn’t a delegate of the Minister, wasn’t a member of the Department. So really, as far as I can see, it’s just a very confined point about whether there is a prohibition on using …[an] agent, an officer of the gaol in which an applicant is detained, to hand the decision to that person within reg 2.55(3)(a).”[9]
[9] Transcript, 17 December 2020, page 8, lines 9 to 14.
The remaining question appears to be whether, in the exercise of their delegated power under s 501G of the Act and reg 2.55 of the Regulations, the Minister’s delegate is capable of using an agent to comply with the required method of notification to the Applicant as stipulated in reg 2.55(3)(a) of the Regulations.
CAN THE METHOD OF NOTIFICATION BE CONDUCTED BY AN AGENT?
To my mind, it is clear that the correspondence between the Respondent Minister’s delegate and the Mount Gambier Prison indicates that the use of the “Case Coordination Officer” was undertaken to fulfil (or purported to fulfil) the required notification method under reg 2.55(3)(a) of the Regulations. The following extracts appear in the correspondence sent to Mount Gambier Prison from the Minister’s delegate:
“It is important for legal reasons that the full notification package attached to this email is handed to [the Applicant] as soon as possible. If [the Applicant] is moved to another prison before the notification can be handed to him, please advise this office immediately.
You may note that the attached notification package is in duplicate, this being a requirement in the event [the Applicant] wishes to lodge a review application at the Administrative Appeals Tribunal (AAT). Please advise [the Applicant] that he has 9 days from the date of receipt* of the attached notification package to lodge an AAT review application.
* [The Applicant] will be taken to have received notification when the attached is handed to him.
Kindly confirm delivery of the notification to [the Applicant] by returning a signed copy of the acknowledgement (on page 3 of the attached notification letter) by email to: [email address redacted
Thankyou for your assistance. Do not hesitate to contact the NCCC if you have any queries.”[10]
[emphasis in original]
And the following is the response from the “Case Coordination Officer” to the Respondent Minister’s delegate:
“I have printed and hand delivered all of the document [sic] to [the Applicant] today at 11:30 at Mount Gambier prison. He has acknowledged and signed the following document.”[11]
[10] Exhibit 2, Correspondence between the Department and Mount Gambier Prison, page 2.
[11] Exhibit 2, Correspondence between the Department and Mount Gambier Prison, page 1.
Sections 497 of the Act relevantly provides:
“497 Delegate not required to perform certain administrative tasks
(1) If the Minister delegates the power to grant or refuse to grant visas, the delegation does not require the delegate personally to perform any task in connection with the grant or refusal, except the taking of a decision in each case whether or not a visa should be granted.
(2) If the Minister delegates the power to cancel visas, the delegation does not require the delegate personally to perform any task in connection with the cancellation, except the taking of a decision in each case whether a visa should be cancelled.
(3) Nothing in subsection (1) or (2) shall be taken to imply that:
(a) a person on whom a power is conferred by or under this or any other Act; or
(b) a delegate of such a person;
is required personally to perform all administrative and clerical tasks connected with the exercise of the power.”
The Respondent Minister submitted the following:
“…Section 497(2) of the Act makes clear that the delegate was not personally required to perform any task in connection with the decision except the taking of the decision itself, and s497(3) makes clear that the delegate was not required to perform “all administrative and clerical tasks connected with the exercise of power”. On any view, notifying the applicant of the delegate’s decision is such a task.”[12]
[12] Exhibit 4, Respondent’s submissions, pages 1 and 2, paragraph 5.
The Applicant made the following submission:
“The relevant decision in this case was not a decision of the kind described in s 497 of the Act at all. In particular, it was not a decision to grant or refuse a visa (s 497(1)) and nor was it a decision to cancel a visa (s 497(2)). Rather, it was a decision not to revoke the cancellation of a visa. It follows that s 497(2) has nothing to say about this case, and any reliance upon s 497(2) is misplaced.”[13]
[13] Exhibit 5, Applicant’s submissions in reply, page 2, paragraph 8.
I do not accept this submission. I accept the subject decision of the delegate sought to be notified to the Applicant was not a decision to grant or refuse a visa. Thus, s 497(1) of the Act does not apply to the instant facts. That said, it is, in my respectful opinion, trite to suggest that the subject decision is not captured by the ambit of s 497(2) of the Act. Cancellation of the Applicant’s visa was at the core of the original mandatory cancellation decision made pursuant to s 501(3A) of the Act.
Likewise, cancellation of that visa was at the core of the decision made pursuant to s 501CA(4) to refuse to revoke its mandatory cancellation. The essential element is cancellation. Refusal (or non-refusal) to revoke is the mechanism by which the delegate executes the function compelled by the Applicant’s request for the setting aside of the original mandatory cancellation decision. The main effect of a decision made pursuant to s 501CA(4) is to render a visa cancelled or not cancelled. The act of refusal (or non-refusal) is a precursor to determining the cancelled (or non-cancelled) nature of a mandatorily cancelled visa.
With respect, the triteness in the Applicant’s submission lies in its attempt to exclude decisions made pursuant to s 501CA(4) from the operational ambit of s 497(2). I do not think Parliament intended for a decision involving the refusal to revoke a mandatory cancellation to be excluded from the operative effect of s 497(2). If so, it would lead to the following absurd position where:
·a delegate’s decision to grant or refuse a visa would fall within s 497(1); plus
·a delegate’s (or relevant Department’s) decision to mandatorily cancel a visa would fall within s 497(2); but
·a delegate’s decision to refuse to revoke a mandatory cancellation decision – the precise effect of which is to render a visa cancelled or not cancelled – would be excluded from the operative effect of s 497(2).
Section 497(3) of the Act provides that sub-sections 497(1) & 497(2) do not provide any additional obligations to perform administrative tasks. It is not a provision that excludes (or includes) the operation of s 497 to decisions made pursuant to s501CA(4). In any event, I am of the opinion that the power which has been delegated under s 501G of the Act and reg 2.55 of the Regulations is more than a simple “administrative and clerical task connected with the exercise of power”. The substantive purpose of s 501G of the Act and reg 2.55 of the Regulations is to ensure the proper notification of the decision to an Applicant. I think it would therefore be unsafe to accept the Respondent’s submission that the broad categorisation of ‘notifying the applicant’ would so easily fall within s 497 of the Act.
The Applicant submits that: ‘Contrary to the tenor of the respondent’s submissions, there is no practical necessity that the power to hand documents to a person be capable of being exercised by a person who is not a delegate of the Minister.’[14] I have difficulty in accepting this submission. In EFX17 and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 273 FCR 508 (“EFX17”), Logan J, in certain comments made in obiter, made reference to an inevitable “meshing” of the notification and invitation obligations in s 501CA(3) of the Act with the administration of the state or territory prison in which an applicant whose visa has been cancelled was incarcerated at the relevant time. To my mind, His Honour’s “meshing” of respective administrative functions alleviates the abovementioned impractical upshot arising from the Applicant’s construction of reg 2.55(3)(a) of the Regulations:
“As to those imprisoned in respect of offences against Commonwealth laws, s 501CA(3) of the Act has been enacted against the background of the provision in s 120 of the Constitution for the States to make provision for the detention in their prisons of persons accused or convicted of offences against Commonwealth laws. Pursuant to authority granted in s 120 of the Constitution and, as to the self-governing territories, s 122 of the Constitution, the Parliament has enacted s 19A of the Crimes Act 1914 (Cth), which assimilates the detention of federal offenders in a State or Territory with State or Territory offenders in relation to their detention and transfer within the State or Territory prison system. Conceivably, that could be a walled prison in or near a metropolitan area or it might be what, for example the Corrective Services Act 2006 (Qld) terms a “work camp” in a rural area: see s 66 of that Act. Federal offenders aside, it is a necessary implication from their context and purpose that the notification and invitation obligations in s 501CA(3) will mesh in with the administration of the State or Territory prison or other detention facility in which the person whose visa has been cancelled is imprisoned at the time. That is exactly what occurred in the present case. At the request of the Minister's delegate, the notice and the invitation were each physically delivered to the appellant by a DCS officer. They were in this way lawfully given to the appellant for the purposes of s 501CA(3). Insofar as Aciekstands for a contrary proposition, it should be over-ruled.”[15]
[My underlining]
[14] Exhibit 5, Applicant’s submissions in reply, page 3, paragraph 12.
[15] EFX17, [258] (per Logan J).
Two things must be said with reference to the EFX17 decision. First, that case did involve a technically similar issue (ie whether notification was given in accordance with s 501G(3) of the Act). However, and second, the real issue in EFX17 was whether a person with a myriad of issues which affected his capacity to understand the content of the notification had been adequately notified.[16] No such issues arise in this case.
[16] See EFX17, at paragraph [134] (per Greenwood J, Rares J concurring).
In those circumstances, I think it appropriate to rely on Justice Logan’s above-quoted remarks with specific reference to His Honour’s observation that Commonwealth and State apparatus will “mesh in” with each other to give practical effect to, in this instance, proper notification of a delegate’s decision to an Applicant.
Regulation 2.55(3)(a) of the Regulations requires the Minister to give the document to the Applicant by “handing it to the person [ie the Applicant] personally.” In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (“Project Blue Sky”), the High Court of Australia made it clear that:
“69. […] the process of construction must always begin by examining the context of the provision that is being construed […]
70. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. […]”
The instant dispute concerns the Applicant’s contended “conflict” about the language of reg 2.55(3)(a) of the Regulations such that its terms cannot be met by provision of the delegate’s decision by an agent on behalf of the Minister, comprising, for present purposes the “Case Management Coordinator” of the Mount Gambier Prison. I am of the view that the terms of reg 2.55(3) of the Regulations must be read within the context of the fundamental purpose of ensuring the notification package, as it was in this instance, reaches an applicant. There is nothing in the language of reg 2.55(3)(a) of the Regulations preventing the Respondent Minister utilising an agent – in this case the “Case Management Coordinator” – to physically hand the delegate’s decision or, more correctly, the relevant notification package, to the Applicant.
I respectfully concur with Her Honour Justice Katzmann in Sillars v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1313 (“Sillars”), who noted:
“The purpose of the regulation is to ensure that the invitation reaches the visa holder or former visa holder. If the person in question is known to be serving a prison sentence, what is the point in sending the invitation to the place where the person lived before being taken into custody? Section 15AA of the Acts Interpretation Act provides that, in interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act is to be preferred to each other interpretation. This section applies equally to a provision in a regulation: Legislation Act 2003 (Cth), s 13(1)(a).”[17]
[My underlining]
[17] Sillars, [57].
Section 15AA of the Acts Interpretation Act 1901 (Cth) provides as follows:
“15AA Interpretation best achieving Act’s purpose or object
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.”
Section 13(1)(a) of the Legislation Act 2003 (Cth) s 13(1)(a) provides that s 15AA of the Acts Interpretation Act does have application to a provision in a regulation, in this case reg 2.55:
“13 Construction of legislative instruments and notifiable instruments
(1) If enabling legislation confers on a person the power to make a legislative instrument or notifiable instrument, then, unless the contrary intention appears:
(a) the Acts Interpretation Act 1901 applies to any instrument so made as if it were an Act and as if each provision of the instrument were a section of an Act;[…]”
With reference to the instant facts, Her Honour Justice Katzmann’s remarks may be applied thus. The purpose of regulation 2.55(3)(a) is to ensure the subject Decision (and notification package) reaches the Applicant. It was known to the Respondent Minister that the Applicant was serving a prison sentence at the Mount Gambier Prison and that there was a “Case Management Coordinator” at the prison capable of providing the notification package to the Applicant. Given the role of the “Case Management Coordinator” in (1) handing the decision (and notification package) to the Applicant personally and (2) ensuring the Applicant signed an acknowledgment of receipt for that material, how can the Respondent Minister be found to not have validly provided the Decision to the Applicant by way of an agent? This is especially so in circumstances where the (1) Applicant does not dispute receipt by hand of the notification package on a specific date (15 August 2019); and (2) it is abundantly clear that the indicia of a valid agency are more than adequately established between the Respondent Minister and the “Case Management Coordinator” at the Mount Gambier Prison.
There can be no contest that (1) the Respondent Minister duly engaged or instructed the “Case Management Coordinator” to give the notification package to the Applicant, and (2) the Applicant duly received that package having been personally handed the document – as can be demonstrated by the signed acknowledgment of receipt. Further, what better way of ensuring the safe and indisputable receipt by an Applicant of a given decision (or other document) than by the Respondent Minister utilising an agent actually employed or situated within the same facility in which the applicant is situated to ensure safe receipt of those documents?
Therefore, interpreting the words “by handing it to the person personally” in reg 2.55(3)(a) of the Regulations to allow for the engagement of the “Case Coordination Officer” to give the notification package to the Applicant personally would, in my respectful opinion, best achieve the purpose of both the Act and its Regulations.
I find that a delegate of the Respondent Minister in their exercise of their power under s 501G of the Act and reg 2.55 of the Regulations, who is properly delegated via the Instrument of Delegation, can utilise an agent to fulfill the required notification method under reg 2.55(3)(a) of the Regulations. I therefore find that the Applicant was properly notified on 15 August 2019.
REGULATION 2.55(9)
If the Tribunal is wrong in relation to whether the delegate can use an agent to provide documents to the Applicant pursuant to reg 2.55(3)(a) of the Regulations, the Tribunal will now consider whether the deeming provision under reg 2.55(9) of the Regulations is able to cure the defect.
Regulation 2.55(9) of the Regulations provides as follows:
“(9) If:
(a) the Minister purports to give a document to a person by a method specified in this regulation but makes an error in doing so; and
(b) 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:
(c) at the time specified by this regulation for that method; or
(d) if the person can show that he or she received the document at a later time—at that later time.”
The Respondent submits that:
“The final thing we say is that, if we’re wrong about all that, of course, we feel we’re not, but if we are, we do rely on reg 2.55(9). We acknowledge that there’s a decision of the Tribunal against us on that point, which is Nikolovski[18], which is cited at paragraph 46 of my friend’s very helpful and comprehensive submissions. But we say on a purposive interpretation, it’s apparent that the purpose of the (indistinct) is to, essentially, cure an error if a person has, in fact, received a document. And I say cure an error, I mean cure an error in the notification. It can’t be right, we say, that that section doesn’t have the effect of leading to a valid notification, because that would be contrary to it’s clear purpose.”[19]
[18] Nikolovski & Minister for Immigration and Border Protection [2018] AATA 558.
[19] Transcript, 17 December 2020, page 7, lines 31 to 40.
The Applicant submits:
“39. Moreover, it is difficult to see how a regulation, such as reg 2.55(9), could validly operate so as to deem a notice which was not in fact given in the manner prescribed for the purposes of s 501G(3) to have been given in the prescribed manner. That is because it is s 501G(3) — a provision of the Act — that requires that a notice given under s 501G(1) be given “in the prescribed manner”. A regulation that purported to deem the provisions of the Act to apply as if a notice had been given in the prescribed manner when in fact it was not would be inconsistent with s 501G(3). Although this would mean reg 2.55(9) has a limited operation (or perhaps even no valid operation) in relation to the provision of notices under s 501G(3), reg 2.55 serves to prescribe requirements for giving documents in a range of circumstances and is not limited to s 501G(3), so reg 2.55(9) continues to have a valid operation in other contexts, where more general regulation-making powers are relied upon.
40. Reg 2.55(9) cannot be construed as identifying the “manner” in which notice may be given for the purposes of s 501G(3). On its face, reg 2.55(9) is not concerned to identify a “manner” in which a document may be given but is rather concerned to identify the legal effect of giving a notice in a way that involves some kind of error. But in any case, in the case of notices given under s 501G, it is s 501G(3) itself that provides that a notification must be given in the manner prescribed. A regulation made for the purposes of that section cannot alter its operation so as to deem a notice to have been given in the prescribed manner if it was not in fact given in that manner. There is no source of regulation-making power in the Act that could support the operation of reg 2.55(9) in connection with notifications under s 501G(3).“[20]
[20] Exhibit 3, Applicant’s submissions, page 10, paragraphs 39 and 40.
The Explanatory Statement[21] to the amending regulation which introduced reg 2.55(9) of the Regulations provides some insight into the purpose and intention of the regulation:
“New subregulation 2.55(9) provides that if the Minister purports to give a document to a person by a method specified in regulation 2.55 of the Principal Regulations but makes an error in doing so, and the person nonetheless receives the document or a copy of the document, then the Minister is taken to have given the document to the person. Generally, the person will be taken to have received the document at the time specified in the relevant regulation in respect of the method used. However, if the person can show that he or she received the document at a later time, then he or she is taken to have received the document at that later time.
The purpose of new subregulation 2.55(9) is to ensure consistency with the amendments made to the notification provisions in the Act by the Migration Amendment (Notification Review) Act 2008 which will also commence by Proclamation on 5 December 2008. This subregulation will also ensure that the deemed time of notification provisions within regulation 2.55 will operate despite non-compliance with a procedural requirement for giving a document to a person where the person has actually received the document. This new subregulation will also protect the person from possible injustice by allowing the person to actually show that he or she received the document at a later time than provided by the deeming provisions.”
[My underlining]
[21] Migration Amendment Regulations 2008 (No. 8), Explanatory Statement, Legislative Instrument 2008 No 237.
The Applicant has provided the following submissions on the Explanatory Statement:
“43. The Explanatory Statement does not assist in identifying the precise construction and operation to be given to reg 2.55(9) (whether generally or in the context of a notification given under s 501G(1)). The [above underlined] passage refers to “the deemed time of notification provisions”. If anything, that tends to confirm that the concern of reg 2.55(9) is not to deem a document to have been given to a person in the manner prescribed by reg 2.55(3), (3A), (4) or (4A), when it was not in fact given in that manner, but that it is, rather, directed solely to the time at which a person is taken to have been notified when notification can be said to have been given by one of those methods (ie, the subject matter of regs 2.55(5) to (8)).
44. Obviously the loose reference to “non-compliance with a procedural requirement” is not to be substituted for the words of reg 2.55 itself. In a sense all requirements in relation to the giving of documents might be described as “procedural”, because the giving of documents is essentially procedural — but it cannot have been intended that every failure to give a document in the “prescribed manner” should be treated as giving the document in the prescribed manner, so long as the person ends up receiving at least a copy of the document: the result would be that reg 2.55 in substance failed to prescribe any “manner” in which notices “must” be given for the purposes of s 501G(3). It would mean that reg 2.55(9) was inconsistent with s 501G(3).
45. For these reasons, reg 2.55(9) has no relevant application in the circumstances of this case such that a notice that was not handed to [the Applicant] personally by the Minister at all is deemed to have been handed to him personally by the Minister.”[22]
[22] Exhibit 3, Applicant’s submissions, page 11, paragraphs 43 to 45.
I disagree with the Applicant’s interpretation of how the deeming nature of reg 2.55(9) of the Regulations applies. Surely, the deeming provision exists such that, in these circumstances, the relevant delegate has purported to comply with reg 2.55(3)(a) of the Regulations and has made “an error” in giving the notification package as required under s 501G of the Act to the Applicant,[23] but the Applicant “nonetheless receives the document or a copy of the document”[24] then (1) the Minister “is taken to have given the document to the Applicant”; (2) the Applicant “is taken to have received it”; and (3) the respective provision and receipt exercises are deemed to have occurred “at the time specified by this regulation for that method”.[25] In this case, the deemed date which the Applicant would be taken to have received the notification package would be 15 August 2019.
[23] Regulations, reg 2.55(9)(a).
[24] Regulations, reg 2.55(9)(b).
[25] Regulations, reg 2.55(9)(c).
The reference to “that method” contemplated by reg 2.55(9)(c) is surely a reference to 2.55(3)(a) which is a reference to:
“the Minister must give the document must give the document in one of the following ways:
(a) by handing it to the person personally”.
The “time specified by this regulation” contemplated by reg 2.55(9)(c) is surely a reference to regulation 2.55(5) which relevantly provides as follows:
“If the Minister gives a document to a person by handing it to the person, the person is taken to have received the document when it is handed to the person.”
The Applicant further submits:[26]
“Section 501G(4) provides that a failure to comply with s 501G in relation to a decision does not affect the validity of the decision. However, a failure to comply with s501G does mean that a time limit applicable to the review of such a decision does not begin to run unless and until notice is given “in accordance with s 501G(1).[27]”
[26] Exhibit 3, Applicant’s submissions, page 12, paragraph 49.
[27] See, eg. Wilson v Minister for Immigration and Citizenship [2012] FCA 1421; 135 ALD 60 at 63 [22] (Edmonds J; Pomare v Minister for Immigration and Citizenship (2008) 167 FCR 494 at 499 [31] (Lindgren J).
With regard to the Applicant’s submissions regarding s 501G(4) of the Act, I find that a failure to comply with s 501G(3) of the Act does not affect the validity of the decision. I further find that the time limit applicable to review of the Decision, by virtue of reg 2.55(5) and 2.55(9)(c) of the Regulations, had begun to run from 15 August 2019 as this was the date the notification was given in accordance with s 501G of the Act.
CONCLUSION
For reasons I have stated, I accept that the power prescribed under s 501G of the Act and reg 2.55 of the Regulations can only be exercised by the Respondent Minister or a person with delegation under the Instrument of Delegation, which would not, prima facie, include the ‘Case Management Coordinator’. I find, however, that the person who in this instance is the “Case Manager – Character Cancellation Taskforce”, was the person who was exercising the power under s 501G and did have the necessary delegation.
I find that:
(a)there is no compulsion on the Respondent Minister or a person with delegation to personally attend to the method of notification upon the proposed recipient/ Applicant in accordance with reg 2.55(3)(a) of the Regulations;
(b)an agent can be used to hand that decision to that applicant personally; and
(c)in the instant facts, the “Case Management Coordinator” at the Mount Gambier Prison was acting as an agent of the Respondent Minister’s delegate.
To the extent “an error” may now be propounded about the Respondent Minister’s delegate’s compliance with s 501G of the Act and reg 2.55 of the Regulations via the utilization of the “Case Management Coordinator” as agent, it is clear that (1) the subject delegate purported to comply with reg 2.55 of the Regulations, and (2) the Applicant’s signed acknowledgement of receipt confirms the Applicant “nonetheless [received] the document or a copy of the document”. Therefore, the deeming provisions in reg 2.55(9) of the Regulations are activated such as to obviate any asserted “error” in the provision of the notification package to the Applicant.
Based on the above reasons, I find that:
(a)the Applicant was notified of the delegate’s decision on 15 August 2019;
(b)the Application to review the subject decision lodged by the Applicant on 8 December 2020 is out of time pursuant to s 500(6B) of the Act; and
(c)this Tribunal must dismiss the substantive application.
DECISION
Pursuant to s 42A(4) of the Administrative Appeals Act 1975 (Cth), the application for review is dismissed.
I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
.......................[sgd].................................................
Associate
Dated: 22 February 2021
Date of hearing: 17 December 2020 Date final submissions received: 23 December 2020 Counsel for the Applicant: Mr Stephen McDonald SC Solicitors for the Applicant: Mr Mitchell Simmons
MSM Legal Pty LtdCounsel for the Respondent: Mr Tim Reilly Solicitors for the Respondent: Mr Tom Ellison
Australian Government SolicitorANNEXURE A – EXHIBIT REGISTER
EXHIBIT DESCRIPTION OF EVIDENCE DATE OF DOCUMENT DATE RECEIVED 1 Decision under review and accompanying notification letter (16 pages) 13/14 August 2019 8 December 2020 2 Correspondence between the Department of Home Affairs and Mount Gambier Prison
(2 pages)14/15 August 20219 8 December 2020 3 Applicant’s submissions (12 pages) 8 December 2020 8 December 2020 4 Respondent’s submissions (3 pages) 17 December 2020 17 December 2020 5 Applicant’s submissions in Reply (5 pages) 17 December 2020 23 December 2020
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