JABAR v Minister for Immigration

[2014] FCCA 714

FEDERAL CIRCUIT COURT OF AUSTRALIA

JABAR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 714

Catchwords:
MIGRATION – Review of decision of MRT – where Tribunal hearing invitation was undelivered by Australia Post until after the hearing date – where applicant did not attend the hearing – where failure was that of Australia Post – whether applicant’s non attendance meant that no real and meaningful invitation had been given and that thus the Tribunal had fallen into jurisdictional error – consideration of effect of deeming provisions in the Migration Act.

Legislation:

Migration Act 1958 (Cth), sub-s.360(1), ss.360A, 362B, 379A(4)(b), 379C(4)

Migration Regulations 1994, Cl. 485.221

Zhi Fang Zhan v Minister for Immigration & Anor [2003] FCA 327
Sainju v Minister for Immigration & Anor [2010] FCA 461
Chen v Minister for Immigration & Anor [2013] FCAFC 133
Minister for Immigration & Anor v SCAR [2003] FCAFC 126
SZFDE v Minister for Immigration & Anor [2007] HCA 35
Bhardwaj v Minister for Immigration & Anor [2002] HCA 11

Applicant: JUN FAREDDA A. JABAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1115 of 2013

Judgment of: Judge Raphael

Hearing date: 7 April 2014

Date of Last Submission: 7 April 2014

Delivered at: Sydney

Delivered on: 11 April 2014

REPRESENTATION

Solicitors for the Applicant: Patrish Patience

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1115 of 2013

JUN FAREDDA A. JABAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Migration Review Tribunal made on 24 April 2013 to affirm a decision not to grant Ms Jabbar a Skilled (Provisional) (Class VC) visa.  The decision was made in the absence of Ms Jabbar because, although she had been invited to a hearing, the invitation letter that had been sent by registered post to what is accepted as her address for service, sat within the great maw of Australia Post from the time it was despatched on 27 March 2013 until it was delivered to the applicant on 27 April 2013 three days after the decision.  In Zhi Fang Zhan v Minister for Immigration & Anor [2003] FCA 327[1] Allsop J, as his Honour was then was, said at [2]:

   “This matter is a most unfortunate one, because the delay which has caused the legal difficulty is the making of neither the applicant, nor the respondent, but of Australia Post.”

   [1] “Zhan”

2. This is the position that applies here.  It is the submission of Ms Jabbar that her case can be distinguished from that of Zhan, from the dicta of Jacobson J in Sainju v Minister for Immigration & Anor [2010] FCA 461[2] and the Full Bench; Katzmann, Griffiths and Wigney JJ in Chen v Minister for Immigration & Anor [2013] FCAFC 133[3].  It is the applicant’s claim that what occurred in this case was, effectively, no real and meaningful invitation to a hearing had been given to her as found in such cases as Minister for Immigration & Anor v SCAR [2003] FCAFC 126[4] and SZFDE v Minister for Immigration & Anor [2007] HCA 35.

   [2] “Sainju”

   [3] “Chen”

   [4] “SCAR”

3. The Migration Act 1958[5] provides in sub-section 360(1) that the Tribunal is required to invite an applicant to appear before it to give evidence and present arguments upon the issues arising in relation to the decision under review. This requirement only comes into effect when the Tribunal has concluded from an examination of the papers that it is unable to make a favourable decision on that information alone. Under s.360A of the Act the Tribunal is required to give the applicant notice of the date, time and place of the proposed hearing. The Act describes how that notice must be given to an application and the period of notice. Section 362B of the Act provides that if an applicant is invited to appear but does not do so the Tribunal may make a decision on the review without taking any further action to allow or to enable the applicant to appear before it. Section 379A(4) of the Act deals with the methods by which the Tribunal gives documents to a person, one of which (4)(b) includes sending by pre-paid post. Where a document is given by the prescribed method as set out in s.379A(4) sub-section 379C(4) provides:

   “(4) If the Tribunal gives a document to a person by the method in subsection 379A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:

   (a) if the document was dispatched from a place in Australia to an address in Australia--7 working days (in the place of that address) after the date of the document; or

   (b) in any other case--21 days after the date of the document.”

   [5] “Act”

4. As Ms Given, who appears for the Minister, says in her helpful written submissions at [27]:

   “[27]It is important to note that the applicant does not argue that the Tribunal’s hearing invitation did not comply with the requirements of s 360 of the Act. Similarly, there is no argument that the deemed receipt of documents provision in s 379C(4) of the Act does not apply, nor that the Tribunal was not empowered under s 362B to make a decision on the application for review without taking any further action to allow or enable the applicant to appear”

5. The applicant was most insistent at the hearing that this was not a case about notice.  She confirmed that there was no dispute that the notice was sent to the correct address in the manner prescribed by the Act.  Her argument is that in the event the invitation issued to her was no more meaningful than the invitations addressed to the applicant in SCAR who was found not to have been in a fit state to represent himself before the Tribunal even though the Tribunal did not know this and there was nothing before the Tribunal that should have alerted it to his condition.  At [39] of that decision the Full Court Gray, Cooper & Selway JJ said:

   “[39] The legal position is analogous to that considered by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj(2002) 187 ALR 117. In that case the applicant had sent a facsimile to the Tribunal advising that he could not attend the hearing on account of illness and seeking another date. The Tribunal member was not informed of the facsimile and proceeded with the hearing in the absence of the applicant. The question in that case was whether a hearing conducted by the Tribunal in the absence of the applicant was invalid for jurisdictional error. The High Court held that it was. As it was put by Hayne J at [149]:

   `The error committed by the tribunal in reaching its September decision was a jurisdictional error. What it did was not authorised by the Act and did not constitute performance of its duty under the Act.'

   Admittedly that decision was made in the context of the then relevant statutory provision which required that the Tribunal give the applicant an opportunity to appear before it and to give evidence and to present arguments, whereas s 425 of the Act is limited to giving notice in relation to those matters. However, for the reasons given above that difference is not critical in the current case, whatever might be the situation in other cases.”

6. At [37] their Honours opined that:

   “[37]On the other hand, it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a `real and meaningful' invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCA 140. They also include circumstances where the statements made by the Tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the Tribunal: VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[2002] FCA 804. They also include circumstances where the fact or event resulting in unfairness was not realised by the Tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs[2002] FCA 1050; W284 v Minister for Immigration and Multicultural Affairs[2001] FCA 1788.”

7. Given the views expressed by the Full Bench in SCAR and its reliance upon Bhardwaj v Minister for Immigration & Anor [2002] HCA 11[6] it is important to note that at the time that matter was considered by the Tribunal s.360 read:

   [6] “Bhardwaj”

   “360    Where review on the papers is not available

   (1)      Where section 359 does not apply, the Tribunal:

   (a)must give the applicant the opportunity to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review; and

   (b)may obtain such other evidence as it considers necessary.

   (2)Except as provided in paragraph (1)(a), the Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review.”

8. There was no sub-section 379A or 379C.  In the Court’s view these differences go to the heart of the matter because Bhardwaj is the one case in which there was a failure of a document to arrive whereas all the other cases quoted in SCAR deal with matters personal to the applicant’s ability to conduct the hearing effectively. 

9. The change in the legislation from requiring the Tribunal to give the applicant an opportunity to appear to requiring the Tribunal to invite the applicant to appear and providing for the manner in which that invitation should be given is very significant and it is to these requirements that the dicta in Zhan, Chen & Sainju speak.  In Zhan Allsop J said at [66]:

   “[66]The scheme of the Act and Regulations is such as to place the risk of postal delays on applicants. The consequence [sic] of that are reflected in the facts of this case. Neither the Court nor the Tribunal is empowered to give any extension of time.”

10. In Sainju Jacobsen J opined:

    “[52]The underlying assumption in each of the deeming provisions is that the act taken by the Minister is sufficient to bring the document to the attention of the person, regardless of whether this has actually occurred.

    [53]Thus, when a document is handed to the person, it is assumed that the person will open the envelope and read it, regardless of whether he or she actually does. Also, when a document is handed to another person at the addressee’s residence or place of business, it is assumed that the other person will give it to the named person. So too, it is assumed that the postal system will work in the ordinary way and that the addressee will receive the document within the time stated.

    [56]But the authorities dealing with deeming provisions in relation to non-electronic communications make it clear that the effect of those provisions is not to create a rebuttable presumption of fact. They are not to be read as if they were subject to a proviso that the person is not taken to have received the document if the contrary is proved: Xie v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCAFC 172 (“Xie”) at [13] – [14] per Spender, Kiefel and Dowsett JJ; see also the review of the authorities by Sundberg J in Minister for Immigration and Citizenship v Abdul Manaf[2009] FCA 963 at [21] – [24]; and see Tay v Minister for Immigration and Citizenship[2010] FCAFC 23 at [16] – [19] per Dowsett, Stone and Bennett JJ.”

11. In Chen the Full Court made reference to Zhan at [28] and then said at [60]:

    “[60]For completeness, we should also state that nothing we have said is intended to derogate from Allsop J’s observations in Zhan concerning the risk of postal delays which, under the migration legislative regime, is borne by applicants. There was no postal delay here. True it is, the application was sent very late but it was received at the GPO Box at a time when Ms Chen was still a visa holder.”

12. This would seem to put the matter to rest.  I do not think there is a difference in the distinction drawn by the applicant that all the cases cited above related to initiating proceedings rather than to attendance at a hearing.  The decisive point of law is that the Parliament created a scheme which, fairly or unfairly, assumes the delivery and receipt that is required in order to establish that a meaningful invitation was given.  Once compliance is established there can be no room for argument about meaningful invitations.  Such arguments are excluded by force of the statute.

13. Whilst the Court would echo Allsop J’s sentiment that the matter is a most unfortunate one I am not able to provide the applicant with the relief she seeks. The applicant was unsuccessful before both the Tribunal and the delegate because she did not provide evidence that her skills for her nominated skilled occupation had been assessed by the relevant assessing authority as suitable for that occupation as required by Clause 485.221 of the Migration Regulations 1994.  If she had provided such information at any time after the decision was made one could be reasonably hopeful that the Minister would exercise his discretion to make a more favourable decision.  But she has not done so and now her application to this Court will be dismissed.  The applicant must also pay the first respondent’s costs which are assessed in the sum of $6,646.00.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:       11 April 2014