Hasan v Minister for Immigration

[2009] FMCA 1124

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HASAN & ANOR v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1124

MIGRATION – Review of MRT decision – whether letter notifying applicants of delegate’s decision complied with s.66 – where information brochure on how to lodge application for review was not enclosed with the letter – where this resulted in applicants not having the addresses of all places at which they could apply for review – whether Tribunal right to reject the application as being out of time.

Migration Act 1958 (Cth), ss.66, 494B, 137J
Education Services for Overseas Students Act 2000, s.20
Migration Regulations 1994

Zhan v Minister for Immigration [2003] FCA 327
Chan v Minister for Immigration [2003] FCA 1292
Pomare v Minister for Immigration [2008] FCA 458
Uddin v Minister for Immigration [2005] FMCA 841
Morsed v Minister for Immigration [2005] 88 ALD 90
Shao v Minister for Immigration [2007] 157 FCR 300
Maroun v Minister for Immigration [2009] FCA 1284

First Applicant: MD KAZI MAHMUDUL HASAN

Second Applicant: RONY RANI SAHA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1731 of 2009

Judgment of: Raphael FM

Hearing date: 12 November 2009

Date of Last Submission: 12 November 2009

Delivered at: Sydney

Delivered on: 18 November 2009

REPRESENTATION

Counsel for the Applicant: Mr P Reynolds

Solicitors for the Applicant: Parish Patience Immigration Lawyers

Counsel for the Respondents: Mr Y Shariff

Solicitors for the Respondents: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $5,850.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1731 of 2009

MD KAZI MAHMUDUL HASAN

First Applicant

RONY RANI SAHA

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 28 October 2008 a delegate of the Minister advised Mr Hasan and Ms Saha that their applications for skilled (Provisional) (Class CC) visas, made on 5 February 2008, were refused. The decision was communicated in an emailed letter to their migration agent, Mr Bitel. The letter is produced at [CB 111-113]. It is not disputed that Mr Bitel was the authorised recipient of the applicants or that sending the letter to him in this way complied with the Migration Act 1958 (Cth) (the “Act”) and Regulations. However, it is argued that the form of the letter was not in compliance with s.66 of the Act and, in particular, s.66(2)(d)(iv). Subsections (1) and (2) of s.66 are set out below:

   “Notification of decision

   (1)  When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.

   (2)  Notification of a decision to refuse an application for a visa must:

   (a)  if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa--specify that criterion; and

   (b)  if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa--specify that provision; and

   (c)  unless subsection (3) applies to the application--give written reasons (other than non‑disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and

   (d)  if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500--state:

   (i)    that the decision can be reviewed; and

   (ii)  the time in which the application for review may be made; and

   (iii)  who can apply for the review; and

   (iv)  where the application for review can be made.”

2. Pursuant to reg.215(3) of the Migration Regulations 1994 (Cth), the Minister was required to notify the applicant of a decision to refuse a grant of visa by one of the methods specified in s.494(B) of the Act and that section permits transmission by email and provides that if a document is given to a person by a method contained in subsection 494B(5), the person is taken to have received the document at the end of the day upon which it is transmitted.

3. The letter addressed to the applicants includes a section on review rights which in the case of these applicants is in the following form:

   “Review Rights

   Applicants are entitled to apply for a review of this decision.  If an applicant decides to exercise their review rights, they have a period of 21 calendar days after the applicant is taken to have been notified of this decision to apply to the Migration Review Tribunal.

   As this decision has been sent by email, you will be deemed to have received this letter today.

   This time-limited review period is prescribed in law and an application for review may not be accepted after that date.  For visa applications made in Australia an application for review of a decision to refuse to grant a visa can only be made if the visa applicant is in the migration zone.

   If a valid application for review of this decision is lodged then any bridging visa currently held in respect of this application will remain in effect while the review application is under consideration.

   Applications for review can be lodged in person at any registry of the Migration Review Tribunal (MRT).

   Applicants in New South Wales, Queensland, the Australian Capital Territory or the Northern Territory can post or fax their applications to the New South Wales registry of the MRT.  Applicants in Victoria, South Australia, Western Australia or Tasmania can post or fax their applications to the Victorian registry of the MRT.

   Applicants in immigration detention may also lodge their application by giving the completed application form and any applicable fee to a departmental officer at a detention centre or at an office occupied by an officer of the department at an airport.  This must be done at least on e working day before the expiry of the applicable time limit.

   The enclosed brochure Migration Review Tribunal provides more information about the review processes and where applications for review can be lodged.  Information about merits review is also available form the MRT on their website at of applications

   Applications for review can be lodged at the following registries:

   Registries of the MRT

   New South Wales  Victoria
   Level 11, 83 Clarence Street            Level 12, 460 Lonsdale Street
   Sydney NSW 2000  Melbourne VIC 3000
   Telephone [phone]              Telephone [phone]
   Fax [phone]  Fax [phone]”

   I am satisfied that the brochure referred to in this section of the letter was not enclosed.  That brochure which is annexed to the affidavit of Trilaksono Soeryoatmodjo dated 28 October 2009 and filed in this court has a section entitled:

   “How do I lodge my application?

   That is expressed in the following form:

   “Applications can be lodged in person at the New South Wales or Victorian registries of the Migration Review Tribunal, or at the Queensland, South Australian or Western Australian registries of the Administrative Appeals Tribunal.  Applications can be lodged between 9am and 4.30pm in all locations.

   Registries of the Migration Review               Registries of the Administrative
   Tribunal  Appeals Tribunal  

   New South Wales  Queensland
   Level 11, 83 Clarence Street  Level 4, Harry Gibbs
   Sydney NSW 2000  Commonwealth Law Courts
   GPO Box 1333  Building
   Sydney NSW 2000  119 North Quay
   Phone [phone]  Brisbane QLD 4000
   Fax [phone]  

   Victoria  South Australia
   Level 12, 460 Lonsdale Street  11^th Floor, 91 Grenfell Street
   Melbourne VIC 3000  Adelaide  SA 5000
   P O Box 14158
   Melbourne  VIC 8001  Western Australia
   Phone [phone]  Level 5, 111 St Georges Street
   Fax [phone]  Perth WA 6000
     Phone [phone]  (metropolitan area)  1300 366 700 (country areas)
     Fax [phone]”

4. It will be seen immediately that the ability of applicants to lodge their applications in the Queensland, South Australia or Western Australia Registries of the Administrative Appeals Tribunal is not referred to in the letter at [CB 112]. The applicant argues that by failing to advise the applicants of these additional places at which his application to the Tribunal could be lodged, the Tribunal was in breach of s.66 of the Act and thus the decision of the Tribunal made on 24 June 2009 to decline to review the delegate’s decision was one made in error because the Tribunal wrongly interpreted s.66 and thus applied the time limit of 21 days from the date of sending the decision, instead of finding that in the circumstances the time limit did not apply. The application for review was in fact lodged on 19 March 2009, some five months after receipt of the delegate’s decision. The relevant paragraphs of the Tribunal’s decision are found at [CB 147 – 148]:

   “[22]The Tribunal received submissions from the applicant’s representative dated 5 May 2009 and 15 June 2009. In the former he submitted that in accordance with Section 66(2)(d) of the Act the Department failed to forward the proper advice forms as prescribed consequently, time for lodging of the appeal against the Department’s decision did not run.

   [23]In the latter submission he drew the Tribunal’s attention to the decisions of the Federal Court in Singh v MIMA (1999) SCA 613, Wang v MIMA (1997) 71 FCR 386 and Zhan v MIMA (2003) FCA 327 all of which held that if notification is defective in relation to failure to comply with the statutory obligations under Section 66(2)(d) than notification will not be valid and time will not start to run against the applicant for the purpose of lodging the appeal. However, defective notification will not effect the validity of the primary decision a statement confirmed in MSA 349 at para 5.6.

   [25]The Tribunal has considered the review applicant’s submissions dated 3 April 2009, 27 April 2009, 5 May 2009 and 15 June 2009.  Although information before the Tribunal indicates that the MRT brochure was not attached to the email transmission, the Departmental file shows that the decision notification letter dated 28 October 2008 provided information that the decision is reviewable by the Migration Review Tribunal, the time in which the review application can be lodged, who can apply for review and where the review can be made, including the addresses and telephone numbers of the Migration Review Tribunals in New South Wales and Victoria.  Therefore the Tribunal finds that the decision notification letter complies with s.66(2).”

5. In this court the applicants maintained their reliance on the views expressed by Allsop J in Zhan v Minister for Immigration [2003] FCA 327 and Chan v Minister for Immigration [2003] FCA 1292 where Gray J opined at [46] and [47]:

   “[46]In this context, it is easy to see that each element of the requirements of s 66(2) is an integral part of the scheme of notification. The absence of any one item of information would disadvantage an unsuccessful applicant. There is, therefore, a strong case for saying that, if one of the requirements of s 66(2) has not been complied with, the duty of notification imposed by the section has not been carried out. Some support for this view is to be found in Zhan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 327. In that case, the MRT had decided that it had no jurisdiction to review a decision of a delegate of the Minister to refuse Ms Zhan a visa. It had done so on the basis that the application for review had been made outside the limited time after the notification of the delegate's decision. Allsop J found that the document purporting to be the notification was deficient in two respects. In the first place, it failed to specify a criterion for the visa, which Ms Zhan had not satisfied. In the second place, it failed to state where an application for review could be made, apparently because a leaflet giving the addresses of registries of the MRT had been inadvertently not included with the letter. Accordingly, the purported notification failed to comply with s 66(2)(a) and (d)(iv). His Honour made a declaration that the MRT had jurisdiction to review the decision and ordered it to do so.

   [47] Allsop J accepted a submission that the omissions prevented the letter and its enclosed decision record from being characterised as a `notification', or as the fulfilment of the requirement to `notify', for the purposes of ss 66 and 347(1)(b)(i) of the Migration Act.”

   The applicant also prays in aid the views expressed by Lindgren J in Pomare v Minister for Immigration [2008] FCA 458. In that case the notice (which was in respect of rights of review to the AAT) said this:

   “[17] Under the heading "HOW TO APPLY FOR REVIEW", the following appeared:

   To apply to the AAT for a review of the decision, you can either: • Write to the AAT and explain the details of the decision and the reasons you seek a review, or • Complete an application form obtainable from the AAT that outlines all of the information required. Your application for review must be accompanied by a copy (or the original) of the document notifying you of the decision plus a set of all the documents given to you at the time of notification of the decision. Unless you do this your application for review will be invalid. The address of the AAT office in Victoria is listed overleaf. There is a fee payable when you apply for a review. This fee can sometimes be waived. More information about fees can be obtained from the AAT. (emphasis in original)

   [18] The sentence "The address of the AAT office in Victoria is listed overleaf" is bewildering. Mr Pomare was incarcerated in New South Wales. Moreover, what appeared overleaf was the following:

   ADMINISTRATIVE APPEALS TRIBUNAL OFFICE Information may be obtained by calling at your local Tribunal, by writing to the Tribunal at GPO Box 9955 in the capital city of your State, or by telephoning the local-call-fee-only number provided. Postal Address: GPO Box 9955 Telephone: [phone].”

   Counsel for the Minister in Pomare sought to distinguish that case from Zhan where the letter did not state an address where the applicant could make his application for review, merely advising the applicant that he could apply to the Migration Review Tribunal for the decision to be reviewed and:

   “If you decide to apply for review you must lodge the review application at a registry of the Tribunal within twenty-one calendar days plus seven working days of the date of this letter and pay the prescribed fee.  The enclosed leaflet provides information about the review by the Tribunal including addresses where the application can be lodged. …”

   But in fact the leaflet was not included so that the applicant was given no information as to the addresses of those places.  In Pomare Lindgren J says of the distinction at [30]:

   “Counsel for the Minister submits, correctly, that the facts of the present case are different from those in Zhan because the written notice in the present case did state "the Tribunal at GPO Box 9955". However, as noted earlier, the Minister correctly concedes that an application would not be received by the Tribunal and therefore would not be made to the Tribunal when it reached that address. If an applicant led evidence to support an inference that an application reached the nominated post office box, it would nonetheless be open to the Minister to defeat the application by proving that the application was not in fact received in the registry office of the Tribunal.”

6. The applicants in the instant case take from these decisions a requirement for the delegate to clearly state the addresses of all places at which an application for review of the decision can be made. The applicants argue that this is consistent with the mandatory wording of s.66. The applicants argue that their views are supported by those expressed by Scarlett FM in Uddin v Minister for Immigration [2005] FMCA 841 which the Minister has conceded to be correct in several cases including Morsed v Minister for Immigration [2005] 88 ALD 90 and Shao v Minister for Immigration [2007] 157 FCR 300. In that case a notice of cancellation sent pursuant to s.20 of the Education Services for Overseas Students Act 2000 (“ESOS”) was held to be invalid because the notice did not accurately set out the effects of s.137J and 137K by advising the applicant that he had to report to an officer at the Melbourne office of the Department whereas in fact he could attend any office of the Department. (emphasis added)

7. The respondent, correctly I believe, distinguishes all the cases relied on by the applicant.  Zhan was a case where on the facts the applicant had no information about any place which constituted a registry of the Tribunal. His Honour noted at [66]:

   “If the registries of the Tribunal had been identified in the phone book it may be that the letter was adequate.  I have some doubts about that but with no assistance given to the applicant as to the location of the registry of the Tribunal in communication or the phone book, I do not think the delegate has stated in the communication “where” the application may be made.”

   He further states at [67]:

   “I think that s 66(2)(d)(iv) requires some direction to a location where the act of making the application may be done.”   [emphasis added]

   There seems to me to be much force in the argument that his Honour was not indicating by those words that every location of a registry had to be advised or that the wording of s.66(2)(d)(iv) could be expanded so that it included every place that the application for review could be made. He places his views firmly in the subjunctive and indefinite.

8. Chan was a case where the time in which the application for review could be made was wrongly stated.  It seems to me that any acknowledgment of the correctness of Zhan contained in Chan must take into account the different facts in both cases and I do not believe it adds any light to the interpretation of s.66(2)(d)(iv). In Pomare the vice was a failure to state the address of the registry office and thus was similar to the instant case. However, Justice Lindgren’s findings related to the failure to provide any address where the application could be lodged. His Honour specifically found, by concession, that an application would not be received by the Tribunal when it reached the GPO Box referred to. In contrast the evidence in the instant case is that those places nominated in the letter were places where a valid application could be received. To the extent that it was relevant to this particular applicant the addresses given could be used whether he was in Victoria or New South Wales or in any other state or territory of the Commonwealth. If there was no obligation to name every single place at which an application could be lodged then the letter was not in breach of s.66(2)(d)(iv).

9. I am not convinced that Uddin assists the applicants in this regard.  In that case the impugned notice told the applicant:

   “You must report personally to a compliance officer at the following Department of Immigration and Multicultural and Indigenous Affairs DIMIA office Australia Melbourne City Vic Castletine Place 2 Lonsdale Street Melbourne Vic 3000.”

   And then went on to say:

   “If you report to Dimia as required under this notice the automatic cancellation of your student visa would not proceed …”

   Scarlett FM made findings that this notice did not comply with s.137J for two reasons:

   “(a)First, the notice did not state that the applicant could attend the relevant immigration office to “explain the breach alleged in the notice” (as required under s137J(2)) and only informed the applicant to attend that Immigration office: at [55] and

   (b)Secondly, the notice required the applicant to report to the specific address in Melbourne when, in fact, the applicant was permitted to report to any Immigration office: at [55]”

1. The Minister submits:

   “Nothing in Uddin establishes that the Tribunal must specify the specific location of each Immigration office.  The vice in Uddin was that the impugned notice required and directed the applicant to attend only one location.  The facts in Uddin are distinguishable.  In the present case, the impugned notice did not direct the applicant to only one location.  In fact, the notice not only identified the different registries at which an application could be lodged, it clearly and unequivocally specified the locations and means by which applications could be lodged from each State and Territory.”

2. As the Minister points out there is nothing in the provisions of s.66 that requires personal attendance by an applicant for review. In those circumstances, provided the letter advising the applicants of their right to seek review indicates a place where an application can be received and it is clear that, wherever that place may be, it will receive applications from applicants in any part of Australia then I think that the provisions of s.66(2)(d)(iv) have been complied with. This is what occurred. The Tribunal did not come to a mistaken view of the law and correctly declined to exercise jurisdiction in this case as the time limit for lodging applications was not at large.

3. Since dictating this decision, indeed, on the very day it was to be handed down, my attention was drawn to a decision of Jagot J Maroun v Minister for Immigration [2009] FCA 1284 published on 12 November 2009. That case also involved, tangentially in my view, a consideration of whether the notice from the Department was required to provide details of every office at which an application for review could be made but was primarily concerned with a factual question as to whether or not the delegate’s decision was accompanied in the envelope in which it was sent by a brochure which set out those details. Jagot J found that the Federal Magistrate was able to draw an inference that it was and she went further to find that as a matter of fact that the leaflet did identify all places where an application for review could be made [19]. However, at [21] her Honour does consider s.66(2)(d)(iv) in a manner which I believe is supportive of conclusions that I have already drawn. Her Honour says:

   “The second answer is legal. Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 841 does not deal with s 66(2)(d)(iv) of the Migration Act. Insofar as potentially relevant it deals with s 137J(1) which concerns a different issue (revocation of a visa) and different requirements (including to attend before an officer as defined). In Uddin Scarlett FM held that these notice requirements had to be complied with strictly. The statutory circumstances in Uddin (and the cases referring to it, Morsed v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 88 ALD 90; [2005] FCAFC 193 and Shao v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 157 FCR 300; [2007] FCA 18) not are not sufficiently similar to s 66(2)(d)(iv) to support any form of reasoning by analogy. Section 66(2)(d)(iv) does not say that the notice must identify all places where an application for review can be made. It states only that the notice must state “where the application for review can be made”. I do not accept the appellant’s submissions to the contrary. Even if the section were construed as requiring all locations where an application can be made, having regard to the principles in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [91]-[93], I am not satisfied that any breach of s 66(2)(d)(iv), no matter how trivial, would operate to invalidate a notice. However, as I did not receive detailed submissions on that question I say no more about it.”

4. It is clear that her Honour considered her remarks to be obiter and for that reason incomplete. To my mind it would be best that, if my reasons do not impress, the matter be decisively considered on appeal.

5. The application is dismissed. The Applicant shall pay the First Respondent’s costs which I assess in the sum of $5,850.00.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  18 November 2009