Iqbal v Minister for Immigration and Border Protection
[2017] FCA 257
•8 March 2017
FEDERAL COURT OF AUSTRALIA
Iqbal v Minister for Immigration and Border Protection [2017] FCA 257
Appeal from: Iqbal v Minister for Immigration and Border Protection [2016] FCCA 2946 File number: VID 1296 of 2016 Judge: DAVIES J Date of judgment: 8 March 2017 Catchwords: MIGRATION – appeal from the decision of the Federal Circuit Court of Australia to dismiss application for judicial review Legislation: Migration Act 1958 (Cth), ss 127, 338, 347
Migration Regulations 1994 (Cth), reg 2.55, 4.10
Date of hearing: 8 March 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 13 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: M Gangemi of the Australian Government Solicitor Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
VID 1296 of 2016 BETWEEN: RASHID IQBAL
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
DAVIES J
DATE OF ORDER:
8 MARCH 2017
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs fixed in the amount of $3,900.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)DAVIES J:
The appellant has appealed the decision of the Federal Circuit Court of Australia (“FCC”) dismissing his application for review of a decision of the Migration Review Tribunal, as it was then called (“the Tribunal”). The Tribunal had held that it did not have jurisdiction to review a decision of the Minister to cancel the appellant’s Student Temporary (Class TU) visa on the ground that the appellant’s application for review was lodged out of time. For the reasons that follow, the appeal must be dismissed.
The applicable legislative requirements for the determination of this appeal are as follows. Pursuant to s 127 of the Migration Act 1958 (Cth) (“the Act”), when the Minister decides to cancel a visa, the Minister is to notify the visa-holder of the decision in the prescribed way. The prescribed way relevant to the appellant’s visa is set out in reg 2.55 of the Migration Regulations 1994 (Cth) (“the Regulations”). The giving of a document relating to a decision to cancel a visa is prescribed by reg 2.55(3). Relevantly, subparagraph 3 provides that such a document must be given by the Minister in one of the following ways:
(3)Subject to subregulation (3A), for a document mentioned in paragraph (1)(a) or (c), the Minister must give the document in one of the following ways:
(a) by handing it to the person personally;
(b) by handing it to another person who:
(i)is at the person’s last residential or business address known to the Minister; and
(ii)appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(iii) appears to be at least 16 years of age;
(c) by dating it, and then dispatching it:
(i)within 3 working days (in the place of dispatch) of the date of the document; and
(ii) by prepaid post or by other prepaid means;
to the person’s last residential address, business address or post box address known to the Minister;
(d) by transmitting the document by:
(i) fax; or
(ii) e‑mail; or
(iii) other electronic means;
to the last fax number, e‑mail address or other electronic address known to the Minister.
Note: Subregulation (3A) deals with giving documents mentioned in (1)(a) and (c) to minors.
Where notification is given in accordance with reg 2.55(3)(c), reg 2.55(7), is engaged. Subparagraph 7 provides as follows:
(7)If the Minister gives a document to a person by dispatching it 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.
Pursuant to s 338(3) of the Act, a decision to cancel a visa held by a noncitizen who is in the migration zone at the time of the cancellation is an “MRT-reviewable decision”, subject to exceptions that do not relevantly apply in this case. Section 347 of the Act provides that an application for review of an MRT-reviewable decision must be given to the Tribunal within the prescribed period, being relevantly a period ending not later than 28 days after the notification of the decision. Regulation 4.10(1)(b) relevantly provides that if the MRT-reviewable decision is mentioned in subsection 338(3) of the Act, the period in which an application for review of an MRT-reviewable decision must be given to the Tribunal starts when the applicant receives notice of the decision and ends seven working days after the day on which the notice is received.
In summary, the appellant was taken to have received the notification of cancellation of his visa seven working days after the date of the document notifying the appellant of the cancellation of his visa, and pursuant to reg 4.10, the time within which his application for review of that decision had to be given to the Tribunal was at the end of seven working days after the day on which he was taken to have received the notice.
The Tribunal found that, in accordance with section 494C of the Act, the appellant was taken to have been notified of the decision on 3 October 2013 and therefore the prescribed period within which the review application could be made ended on 14 October 2013. The reference to s 494C of the Act was not the correct reference, as the relevant provision is reg 2.55(7). However, nothing turns on that, as the FCC correctly stated, because the time limits in all relevant respects are the same under both those provisions.
The evidence established that the Minister cancelled the appellant’s visa on 24 September 2013. Notification of the cancellation of the visa was contained in a letter dated 24 September 2013, which was sent by registered mail to the appellant at 1/12 Holberry Street, Broadmeadows on 25 September 2013. The evidence established that 1/12 Holberry Street, Broadmeadows, was the appellant’s last residential address known to the Minister. There were two sources demonstrating that to be the case.
One source was the appellant’s visa application which was received by the Department on 5 September 2012, and the other source was an email from the appellant’s education provider dated 2 September 2013, which was responding to an email request from the Department dated 28 August 2013 asking for the education provider to provide contact details for the appellant. Whilst the education provider gave the appellant’s address as 1/12 Holberry Street, Broadmeadows, it appears that the appellant had changed his address in July 2013 and had notified the education provider of his new address. Unexplained is why the education provider gave the old address to the Department but significantly, the appellant did not notify the Department of his new address, so that from the Minister’s perspective, on the material available to the Minister, the last known residential address of the appellant was the address to which the notice of cancellation of visa was sent. That being the case, the time by which the application for review needed to be made by the appellant in compliance with the Regulations was 14 October 2013, and the application was not in fact received by the Tribunal until 23 December 2013.
It follows that the application was made out of time and the Tribunal correctly held that it did not have jurisdiction to review the decision of the Minister to cancel the appellant’s visa, and the FCC was correct to hold that there was no error in the Tribunal’s decision.
The Minister had also sent notification of the cancellation to an email address for the appellant at the same time as sending that notification by prepaid post. It transpired that the email address used was incorrect but nothing turns on the fact that the notification was sent to the wrong email address because that was not the only form by which the Minister gave the document to the appellant.
The appellant’s notice of appeal also raised that the FCC erred in law in failing to find that the Tribunal had fallen into jurisdictional error by denying the appellant procedural fairness in refusing to consider the merits of the appellant’s application for review, and in failing to acknowledge the reason why the appellant had not applied in time for the review. That ground has no merit, in that having found that the application was filed out of time, the Tribunal was not obliged to consider the merits of the application for review nor the reasons why the appellant had not filed the application within time.
The appellant also raised as an appeal ground that the FCC erred in law and/or in fact and thereby fell into jurisdictional error by failing properly and/or adequately to investigate and assess the allegations made by the appellant as to the notice of cancellation of his visa being sent to the wrong address. That ground also has no merit as the evidence sufficiently established that there was compliance with the legislative requirements for giving notification of the cancellation of the visa to the appellant.
The final appeal ground relied upon by the appellant is that the FCC erred in law and/or in fact when considering all the facts and circumstances, such as, but not limited to, that the appellant was legally unrepresented and that the migration laws and applications are complex and complicated matters requiring specialised skills and that the appellant is a foreign national and had little or limited understanding of Court proceedings in Australia and was therefore severely disadvantaged. This ground in substance amounts to a complaint that the appellant was not afforded a fair hearing. However, the absence of legal representation does not provide the foundation for a claim of a lack of procedural fairness or denial of a fair hearing. Furthermore, nothing has been brought to the attention of the Court to indicate that the appellant was not given full and proper opportunity to present his case fully and comprehensively to the FCC. For those reasons, the appeal must be dismissed.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies. Associate:
Dated: 14 March 2017
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