Kassem and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2022] AATA 4043

Kassem and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 4043 (25 November 2022)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2022/8968
General Division	)

Re: Hussein Kassem
Applicant

And: Minister for Immigration, Citizenship and Multicultural Affairs
Respondent

DIRECTION

TRIBUNAL:  Senior Member Theodore Tavoularis

DATE OF CORRIGENDUM:            29 November 2022

PLACE:           Brisbane

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision (and paragraph 16) in this application to the following:

‘I dismiss this application without proceeding to review the delegate’s decision made on 29 September 2022. I do so pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).’

..............................[SGD]..........................

Senior Member Theodore Tavoularis

Division:GENERAL DIVISION

File Number:          2022/8968

Re:Hussein Kassem

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member Theodore Tavoularis

Date:25 November 2022

Place:Brisbane

I dismiss this application without proceeding to review the delegate’s decision made on 29 September 2022. I do so pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

..............................[SGD].................................

Senior Member Theodore Tavoularis

Catchwords

MIGRATION – Non-revocation of mandatory cancellation of a Class BF Transitional (permanent) visa – where review application to Administrative Appeals Tribunal lodged outside the prescribed statutory period of nine days - where the non-revocation decision emailed to the representative recorded on Department of Home Affairs Form 956- where the review rights was placed at the end of the decision notification package- whether notification was validly made- Migration Regulations 5.02- whether Form 956 validly authorised nomination of a representative - whether the review rights factsheet not being placed upfront invalidated the decision notification- issue of Tribunal’s jurisdiction to hear and determine the matter- No jurisdiction found – application dismissed.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

REASONS FOR DECISION

Senior Member Theodore Tavoularis

25 November 2022

Interlocutory hearing

1. In his primary application to the Tribunal, the Applicant seeks relief from a decision of the Respondent’s delegate to refuse to revoke a decision to mandatorily cancel his Class BF Transitional (permanent) visa (‘the visa’). Before the primary application can be progressed to a hearing, it is necessary to resolve an issue as to jurisdiction which may fatally infect the matter such as to obviate any requirement for a substantive hearing.

2. This interlocutory issue about jurisdiction was argued before me 18 and 21 November 2022. Both parties were legally represented during the ventilation of this jurisdiction issue. No oral evidence was adduced at the interlocutory hearing. However, the Respondent’s representatives did produce a ‘Bundle of relevant documents for jurisdiction hearing’ (which I now mark Exhibit 1’). The Tribunal also received written submissions on behalf of the Applicant (which I now mark Exhibit 2) and the Respondent (which I now mark ‘Exhibit 3’).

   Issues

3. At issue is whether the Tribunal’s jurisdiction is enlivened such as to facilitate review a delegate’s decision of 29 September 2022 involving a refusal to revoke the mandatory cancellation of the visa.

4. More particularly, the issue devolves into a question of whether the Applicant has met the requirements of s 500(6B) of the Migration Act 1958 (Cth) (‘the Act’) such that he filed the substantive application within the stipulated nine day timeframe. If the Applicant has not met the requirements of s 500(6B) of the Act, the substantive application must be dismissed for want of jurisdiction.

   the facts

5. In its written submissions, the Respondent has helpfully outlined the relevant timeframe necessary for a fulsome understanding of whether or not the Applicant has met this nine day timeframe.[1] Those facts confirm:

   [1] Exhibit 3, paras [3]-[16].

   ·the Applicant told the Respondent that he sought revocation of the mandatory cancellation decision and that he was doing so via duly appointed legal representatives who formally announced their involvement in the matter to the Respondent’s department.

   ·in so doing, the Applicant’s legal representatives provided the Respondent’s department with written confirmation that they held the Applicant’s instructions and, at the same time, provided an email address to which communications intended for the Applicant were to be sent.[2]

   ·those representatives were called ‘Birchgrove Legal’. The announcement of their involvement in the matter occurred by way of an email dated 28 December 2021 under the hand of ‘Fatima Alrubaie’. The nominated email address on the relevant revocation form was recorded thus: ‘[email protected]’.[3]

   ·on 17 and 20 January 2022, plus 29 and 30 June 2022, plus 28 July 2022, plus 25 August 2022, the Respondent’s department and the Applicant’s representatives exchanged email correspondence in the regular course of the revocation application propounded on behalf of the Applicant. The fact of the passage of that correspondence is not in issue;

   ·on 29 September 2022, following consideration of the Applicant’s representations for revocation, a delegate of the Respondent made a decision refusing to revoke the mandatory cancellation decision pursuant to s 501CA(4) of the Act;

   ·this particular decision was forwarded by the Respondent’s department to the Applicant using the self-same email address that had been provided by the Applicant’s representatives to the Respondent’s department. In so doing, the Respondent’s department sought to ensure compliance with s 501G(3) of the Act (read with Regulation 5.02 of the Migration Regulations 1994 (Cth) (‘the Regulations’);

   ·on or about 1 November 2022 the Applicant changed his legal representation from Birchgrove Legal to ‘IMMI House Legal’. The person having carriage of the file at the latter office was nominated as ‘Amina Youssef’;[4]

   ·the new representatives for the Applicant sought to propound an alleged difficulty or shortfall in the provision of the non-revocation decision to the Applicant.[5] The asserted shortfall was said to derive from two things:

   othat Birchgrove Legal’s written communication of 28 December 2021[6] in which Birchgrove Legal (1) announced their involvement in the matter on behalf of the Applicant; and (2) provided a specific email address[7] for provision of documents to them on behalf of the Applicant, did not constitute provision of an authority from the Applicant to the Respondent’s department to notify Birchgrove Legal (instead of him) of the non-revocation decision made on 29 September 2022; and

   othe location of a certain ‘Information sheet about how to apply for merits review by the AAT’ (‘AAT Information Sheet’) in the bundle of material accompanying the non-revocation decision made on 29 September 2022 was somehow ‘disembodied from the notification and decision’[8] such that the Applicant was precluded from (1) being able to locate this AAT Information Sheet, (2) understand its contents and, in particular, (3) meet the requirement to file his application for review with the Tribunal within the nine day period mandated by s 500(6B) of the Act.

   [2] See in particular, Exhibit 3, p 2, para [7].

   [3] Note: As is noted in the Form 956, the person having carriage of the matter at Birchgrove Legal was Mr Moustafa Kheir (See Exhibit 1 – pg 125). Ms Fatima Alrubaie was the clerk who issued the email on behalf of Mr Kheir. Birchgrove Legal’s website confirms that Mr Kheir is a Principal Solicitor and Ms Alrubaie is a paralegal / law clerk who is still studying law.

   [4] Exhibit 1, pp 14-15.

   [5] That is, the decision made by the Respondent’s delegate on 29 September 2022 pursuant to s 501CA(4).

   [6] Which attached (1) a completed ‘Request for Revocation of a Mandatory Visa Cancellation Under Section 501(3A)’ and (2) a duly completed Form 956 ‘Appointment of registered migration agent, legal practitioner or exempt person’.

   [7] Specifically, see p 102 of Exhibit 1.

   [8] Exhibit 1, p 15.

   consideration

6. Both of the contentions appearing beneath the final dot-point of the immediately preceding paragraph can be safely rejected for the following reasons.

   Does Regulation 5.02 require personal service upon an Applicant or their representative?

7. First, it is necessary to have regard to the Applicant’s contention that compliance with regulation 5.02 can only be met by physically handing over the subject document(s) to either the detainee or his/her authorised person. With respect, the text of Regulation 5.02 says no such thing. This is the text of Regulation 5.02:

   ‘For the purposes of this Act and these Regulations, a document to be served on a person in immigration detention may be served by giving it to the person himself or herself, or to another person authorised by him or her to receive documents on his or her behalf.’ [My emphasis]

8. To my mind, the pivotal word is ‘may’. If the intent of the Regulation was to either (1) exclusively provide for the physical giving of the document being the only lawful means of providing it; or (2) to exclude all other non-physical means of lawful provision of the document, then surely the word ‘only’ would have appeared after the word ‘may’. The word ‘may’ must be understood in the context of the word ‘or’ appearing 12 words  after ‘may’  in the text of Regulation 5.02. It then becomes clear that ‘may’ is not contemplative of excluding other forms of ‘giving’ the document. Rather, the word ‘may’ contemplates the alternative of either giving the document to ‘the person himself or herself’ or ‘another person authorised by him or her’.

9. In other words, the word ‘may’ serves the disjunctive purpose of the text by facilitating provision of the document to either a detainee or their representative. It does not serve any purpose related to exclusivity or limitation in the method of provision of the document. It logically follows that the text of Regulation 5.02 was never intended to exclude the ‘giving’ or provision of documents by means other than physical means. To my mind, this is especially the case in the instant facts because the Respondent’s department was put on notice of a specific email address to which documents were to be sent. Further, this is precisely how the parties subsequently communicated.

10. I am therefore not satisfied or otherwise convinced that Regulation 5.02 is intended to exclude other forms of ‘giving’ the document to either a detainee or their representative. I could possibly accept a need for caution being warranted in circumstances where the Tribunal was dealing with an unsophisticated and self-represented detainee/applicant who, for example, was compelled to share an email address or facsimile machine in either a prison or an immigration detention facility. But that is patently not the case on these facts. Here:

    (a)the Applicant duly appointed legal representatives to act for him in this matter;

    (b)those legal representatives duly announced to the Respondent’s department their interest and involvement in this matter on behalf of the Applicant;

    (c)those legal representatives duly told the Respondent’s department the specific name of the person who would have carriage of the matter on behalf of the Applicant;[9]

    (d)those legal representatives duly informed the Respondent’s department of a specific email address to which future communications were to be sent for the purposes of the matter in which they held the Applicant’s instructions;[10] and

    (e)there followed a course of written communication between those duly appointed legal representatives and the Respondent’s department during the period 28 December 2021 and 25 August 2022 during which correspondence was reliably sent and received without complaint by either sender or recipient.

    [9] See the Form 956: Exhibit 1, pp 125-132.

    [10] See the Form 956: Exhibit 1, p 125; see also the Request for Revocation of a Mandatory Visa Cancellation Under s501(3A) Form: Exhibit 1, p 102.

    Is the location of the AAT Information Sheet in the bundle of documents relevant?

11. Second, I am even less convinced or persuaded by the contention about the location of the abovementioned AAT Information Sheet in the bundle of material accompanying provision of the non-revocation decision made on 29 September 2022. The first part of the contention seems to be that the location of the AAT Information Sheet in the bundle of documents somehow caused the Applicant to fail to comply with the nine day requirement appearing in s 500(6B) of the Act. This must be rejected because the covering letter from the Respondent’s department makes it clear that behind that covering letter there are ‘Enclosures’.[11]

    [11] Exhibit 1, p 12.

12. Beneath that heading of ‘Enclosures’ there appears six listed dot-points. Next to the fifth of those dot-points appear the words: ‘Information sheet about how to apply for merits review by the AAT’.[12] It is this ‘AAT Information Sheet’ which informed the Applicant about the nine day requirement contained in s 500(6B) of the Act. The suggestion that this AAT Information Sheet ‘…appears at p 697 of the notification package and is disembodied from the notification and decision…’[13] must be rejected. The AAT Information Sheet is specifically referred to as the fifth dot-point item in the covering letter. Although the material may have been bulky, it cannot now be accepted that there was any attempt to hide or conceal that document from the Applicant such as to cause him to fail to comply with s 500(6B) of the Act. It was clearly itemised as a dot-pointed attachment in the covering letter containing the refusal to revoke decision make on 29 September 2022.

    [12] Exhibit 1, p 12.

    [13] Exhibit 1, p 15, para [10].

13. The further basis on which this second contention can be rejected derives from the undeniable reality that at the time of the Applicant’s receipt of this bundle he had legal representatives acting for him. There can be no cavilling with the further reality that within the ambit of their retainer, there was a duty upon those duly appointed representatives to meet any lawful requirement imposed on the Applicant by material they received on his behalf. That material was received at the email address which they had nominated to the Respondent’s department some ten months earlier and via which they had, on numerous occasions, corresponded with the that department.

14. With respect, the Applicant’s present complaint about a failure to meet the requirements of s 500(6B) of the Act should not be with the Respondent. It properly resides with his then duly appointed legal representatives who had carriage of the matter on his behalf and, thereby, a consequential responsibility to meet all lawful requirements falling upon the Applicant arising from correspondence they received on his behalf.

    conclusion

15. I am satisfied that:

    (a)the Applicant was validly notified of the delegate’s non-revocation decision made on 29 September 2022;

    (b)his application to this Tribunal made on 1 November 2022 was outside the nine day timeframe stipulated in s 500(6B) of the Act;

    (c)section 500(6B) of the Act neutralizes this Tribunal’s capacity to enlarge or extend that nine day timeframe; and

    (d)this Tribunal has no jurisdiction to further entertain this Application and, accordingly, it is not reviewable by this Tribunal.

    order

16. I dismiss this application without proceeding to review the delegate’s decision made on 29 September 2022. I do so pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

....................[SGD]..........................

Associate

Dated: 25 November 2022   

Dates of hearing:	18 & 21 November 2022
Representative for the Applicant:	Ms Amina Youssef (Lawyer-ImmiHouse Legal) Mr Oliver Jones (Counsel)
Representative for the Respondent	Mr Jon Papalia (Senior Lawyer- Australian Government Solicitor) Mr Greg Johnson (Counsel)