IQBAL v Minister for Immigration

[2016] FCCA 2946

FEDERAL CIRCUIT COURT OF AUSTRALIA

IQBAL v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2946

Catchwords:
MIGRATION – Application for judicial review – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth).

Migration Regulations 1994, reg.2.55

Cases cited:

Butt v Minister for Immigration and Border Protection [2014] FCA 1354

Applicant: RASHID IQBAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 514 of 2014

Judgment of: Judge Riethmuller

Hearing date: 13 October 2016

Date of Last Submission: 13 October 2016

Delivered at: Melbourne

Delivered on: 13 October 2016

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal.

2. The application be dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 514 of 2014

RASHID IQBAL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

1. This is an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”), as it was then called.  The applicant held a student visa. In 2013, a delegate of the Minister considered whether or not to cancel the applicant’s student visa, forming the view that it ought to be cancelled.  The decision of the delegate was sent to the applicant at an address 1/12 ‘H’ street, ‘B’ (I have deleted the full name of the street and suburb to ensure the privacy of those involved and the subsequent occupants of that residence).

2. The Minister also sent notice of the decision by post and to an email address ‘[e-mail]’ (again, I have omitted the relevant details for the email address).  The email was not functional, and the applicant says that he did not receive the copy of the notice that was sent to him by post.  The result was that he did not apply for a review of the delegate’s decision within the seven day time limit provided for in the legislation, as the Tribunal correctly identifies at paragraph [3] of their decision.

3. The question in this case is a narrow one: whether or not the Minister had sent the notice to an appropriate address in order for the deeming provisions of the legislation to operate deeming the applicant to have received the notice. In this particular case, the relevant provision is regulation 2.55 of the Migration Regulations 1994 (“the Regulations”), which refers to the address last known to the Minister. 

4. There is a long history of material being provided to the Minister in this case, much of which contained errors about the contact details for the applicant. In May 2012, in the visa application prepared by the applicant’s agent, there were two errors in the contact details that were provided to the Minister. Firstly, the address was simply given as 12 ‘H’ Street, ‘B’, omitting the unit number for the residence. Secondly, the email address given in that document transposed two numerals used in the email address so that the email address given was incorrect.

5. In September 2012, in another visa application, the correct physical address of 1/12 ‘H’ Street, ‘B’ was given and the correct email address was given (without the transposition of the two digits).  The Minister sent an email to the applicant at his correct email address (the one without the transposition of digits) on 28 August 2013 but did not receive any response to that email. That email was part of the process of engaging with the applicant with respect to the delegate’s decision (as recorded at pages 17 and 18 of the court book).

6. At the hearing before me, the applicant explained that he believes that the email of 28 August 2013 went into his spam folder, and so although he received it, he was not aware of it at the time and did not respond to it.  The result of his non-response was that the relevant officer from the Department sought out contact details from his education provider, no doubt in a genuine attempt to ensure that the applicant was given a real opportunity to engage in the process, rather than simply a formal one. 

7. The education provider, the Holmes Institute, provided a physical address, the same as that provided earlier by the applicant, and an alternative email address.  The alternative email address was a Gmail address rather than a Yahoo address with the username as ‘y’ (again, I have omitted the username).  The Minister then attempted to utilise the email address from the education provider.  However, it was unable to be used to successfully send an email, as appears at court book pp.25 and 26.  The Minister then sent the notice to the applicant at the physical address that the Minister held.

8. The applicant, at Court today, explained that he had notified his education provider of his change of physical address in July 2013 and provided a copy of the form that he filled in there (which I will mark Exhibit 2), showing that, at about that time, he moved to a different suburb in Melbourne.  It also shows that his phone number remained the same.  The form does not provide details for changing email addresses. 

9. At the hearing of the matter, the applicant confirmed that the actual address, ‘H’ Street, contained three residences and that the photo that appears on Google Maps is the correct residence, a copy of which was printed and marked Exhibit 1.  It is clear that there are three mailboxes and mail sent to that address would require a unit number as well as simply the street number for that block of land.

10. Turning, then, to the method that the Minister used to notify the applicant of the outcome. Firstly, with respect to the physical address, there is no question that the Minister used the last known physical address that had been given to the Minister by the education provider, which corresponded to the last known physical address given to the Minister by the applicant himself in the visa application of September 2012. 

11. To the extent that it deviated from the address given in his visa application in May 2012, it was by the addition of the particularising information of which unit of the three on the block he was living in.  It seems to me that, in the context of this case, addressing the letter to 1/12 ‘H’ Street is nonetheless sending the letter to 12 ‘H’ Street, and therefore, on any view of it, the Minister has used the address that had been provided by the applicant on his visa application (albeit with additional identifying details). This is little different to, for example, sending a letter to a department of a University but including the person’s room number rather than just the department address.   

12. Secondly, that the Minister used the last known address given directly by the applicant in the two visa applications. Thirdly, the Minister used the last known address given by the education provider in their material.

13. In this regard, I am persuaded that the Minister has properly complied with the provisions requiring notice to be given and that the seven days had expired. 

14. I turn, then, to the question of the email addresses.  Firstly, there does not appear to be any basis for requiring the Minister to use one particular form of communication with an applicant.  In this case, the choice by the Minister to attempt to use the email address obtained from the education provider was driven by the fact that the Minister had attempted to contact the applicant by the email address given by him and that had failed.  The Minister then, quite properly, sought out a more recent email address and utilised the one provided by the education provider.

15. It was certainly reasonable to rely upon information provided by an education provider in this context.  It, therefore, appears to me that the Minister has in fact sent the email to the last known address to the Minister.  To the extent that this was not in fact the correct address it is a matter for the applicant to take up with his education provider, although, bearing in mind, that had he responded to the email sent to the email address he gave the Minister, the difficulty would not have come to pass in the first place.

16. In the circumstances of this case, it does not seem to me that there is any basis for concluding that the Minister was limited to using email addresses, nor that, under the Migration Act 1958, the Minister could be said to have not sent the notice to the last known email address.  As a result, on a technical analysis of the material under the Act, I am persuaded that the Tribunal has not erred in the conclusions that it has reached.

17. Counsel pointed out that the Tribunal referred to section 494C rather than regulation 2.55 and that these are, in relevant respects, the same, save that the last known address can be utilised in regulation 2.55: see the discussion by Mortimer J in Butt v Minister for Immigration and Border Protection [2014] FCA 1354 at paragraph [27]. This does not indicate a judicially reviewable error as the relevant facts were considered and an identical test applied.

18. I have also considered whether or not the facts of this case give rise to a need to consider more broadly the operation of the provisions.  However, in circumstances where the Minister has sent the notice to the physical address known to the Minister through information provided by the applicant and that the lack of change of address was caused by the applicant not notifying the Minister that he had moved, it does not appear to me that this could be said to be a situation where through no fault of the applicant no notice actually reached him.

19. In these circumstances, I come to the conclusion that the application must be dismissed.

    [Further argument ensued]

20. In this type of matter, costs ordinarily follow the event. There is nothing about the circumstances that indicate a different result should follow. The costs on the current scale appear to me to be a reasonable sum given that this matter has been before the Court on more occasions than is usual for this type of case and has required additional preparation on fact-finding.  I will therefore order costs accordingly.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 15 November 2016