Khan v Minister for Immigration
[2017] FCCA 3112
•15 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KHAN & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3112 |
| Catchwords: PRACTICE & PROCEDURE – Application to amend originating application raising the grounds and particulars expressed at [25]-[26] of the applicants’ submissions – leave granted to amend application. |
| Legislation: Migration Act 1958 (Cth), ss.66, 347, 494B, 494C, 494D, pt.5 Migration Regulations 1994 (Cth), regs.2.16, 4.10 |
| First Applicant: | MOHAMMAD SAIFUR RAHMAN KHAN |
| Second Applicant: | MANZIR YASMIN KHAN |
| Third Applicant: | MARZUQ RAHMAN KHAN |
| Fourth Applicant: | MUIZZ RAHMAN KHAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2731 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 15 November 2017 |
| Date of Last Submission: | 15 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 15 November 2017 |
REPRESENTATION
| Counsel for the Applicants: | Mr B Zipser |
| Counsel for the First Respondent: | Mr M Cleary |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The applicants are granted leave to file an amended application raising the grounds and particulars as expressed in [25]-[26] of the applicant’s written submissions dated 13 November 2017.
The amended application is to be filed within 7 days.
The application is otherwise dismissed.
The first and second applicants pay the first respondent’s costs fixed in the amount of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2731 of 2016
| MOHAMMAD SAIFUR RAHMAN KHAN |
First Applicant
| MANZIR YASMIN KHAN |
Second Applicant
| MARZUQ RAHMAN KHAN |
Third Applicant
| MUIZZ RAHMAN KHAN |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Extempore and Revised)
This is an application for a review of the decision of the Administrative Appeals Tribunal (Tribunal) made on 7 September 2016. That decision was not to conduct a review of the decisions of a delegate of the Minister to refuse to grant any of the applicants Medical Treatment (Visitor) (Class UB) visas. The reason it made its decision was that it found it did not have jurisdiction to review those decisions because the applications for review had been made outside of the time prescribed by the Act, which according to the Tribunal’s calculations was 7 July 2016.
The following background is taken, with some redactions, from the applicants’ written outline of submissions.
Background
The applicants are family members, the first applicant being the husband of the second applicant and the third and fourth applicants being the children of the first and second applicants.
On 8 June 2016 the first applicant, by his migration agents, MS Haque & Associates applied to the Department of Immigration (Department) for a subclass 602 medical treatment visa. In that application, which was signed by the first applicant, the applicant directed that all written communications about the application should be sent to the migration agent. At around the same time, the Department received a form 956 signed by the first applicant and the migration agent dated 7 June 2016, which indicated the appointment of that migration agent, Md. Haque, as agent for all four applicants. The document noted consent to the Department communicating with the agent by email, to the address specified in it.
On 8 June 2016, the second, third and fourth applicants also applied for subclass 602 visas, and in each of those applications, indicated that all written communications about the applications should be sent to the migration agent.
On 16 June 2016, the Department issued a letter to each of the applicants notifying them of a decision to refuse to grant a visa. On the face of those four letters, and it was not in dispute, the Department sent each of the four letters by email, to the email address given by Md. Haque in the form 956. Those letters were sent by four separate emails to the agent’s email address, between 6.24 pm and 6.57 pm on 16 June 2016. It is also not in dispute that on 16 June 2016, the four emails arrived in the inbox of the migration agent’s email account.
On 30 June 2016, the agent sent an email to the Department seeking an update on each of the applications, saying “Unfortunately all correspondence has been deleted regarding this client …”. In a letter dated 31 August 2016 to the Administrative Appeals Tribunal, the agent later explained that he received in his email box one or more emails from the Department which attached decisions of the Department, but due to an IT problem experienced by the agent, the emails disappeared from the inbox. This explanation was also given during a phone call on 18 August 2016.
The material before the Court suggests that on 7 July 2016, the Department reprinted these notification letters and delivered them to the migration agent on that day and perhaps also gave copies of the letters to the first applicant on 8 July 2016. He said he had driven to the Department’s offices in Canberra to collect them. On 13 July 2016, the four applicants lodged an application with the Tribunal for review of the delegate’s decisions.
On 7 September 2016, after some correspondence with the applicants concerning the validity of the applications, the Tribunal made a decision that it did not have jurisdiction in the matter, and so did not undertake a review of the delegate’s decisions. That decision was based upon its finding that the applicants were notified of the delegate’s decisions by letters dated 16 June 2016, which were dispatched by email on the same date. The Tribunal found also that the transmission of those emails were successful.
The Tribunal found that, in accordance with s.494C of the Migration Act 1958 (Cth) (Act), the applicants were taken to have been notified of its decision on 16 June 2016 and, for that reason, the prescribed period within which the review application could be made ended on 7 July 2016. As the review applications were not received until 13 July 2016, the applications were not made in accordance with the legislation and the Tribunal had no jurisdiction.
In their grounds of application, the applicants say that in the circumstances of the case, the Tribunal erred in finding that the applicants were notified of the primary decision within the meaning of reg.4.10 of the Migration Regulations 1994 (Cth) (Regulations), on 16 June 2016. The applicants assert they were not notified of the primary decisions until 7 July 2016, when the first applicant drove to the relevant office of the Department in Canberra, to collect the decisions.
In written submissions filed on behalf of the applicants, well outside the time required by the Court’s orders, it was submitted, in summary, that the reason that the notification did not take place in respect of the third and fourth applicants until 7 July 2016, as opposed to 16 June 2016, was because the method for notification found in sub-s.494B(5)(d) did not apply to those applicants because they were minors. It is asserted that in this case, sub-s.494B(5)(e) applied because the third and fourth applicants were minors.
In order to understand that argument and its resolution, it is necessary to have regard to the relevant statutory scheme. That scheme begins with the requirement under s.66 of the Act, for the Minister to notify the applicant of the decision in the prescribed way, if the Minister grants or refuses to grant a visa.
Regulation 2.16 prescribes, for the purposes of s.66(1), one of the methods specified in s.494B of the Act. Section 494B of the Act provides:
Methods by which Minister gives documents to a person
Coverage of section
(1)For the purposes of provisions of this Act or the regulations that:
(a)require or permit the Minister to give a document to a person (the recipient ); and
(b)state that the Minister must do so by one of the methods specified in this section;
the methods are as follows.
(1A)If a person is a minor, the Minister may use the methods mentioned in subsections (4) and (5) to dispatch or transmit, as the case may be, a document to an individual (a carer of the minor ):
(a) who is at least 18 years of age; and
(b) who the Minister reasonably believes:
(i) has day-to-day care and responsibility for the minor; or
(ii) works in or for an organisation that has day-to-day care and responsibility for the minor and whose duties, whether alone or jointly with another person, involve care and responsibility for the minor.
Note:If the Minister gives an individual a document by the method mentioned in subsection (4) or (5), the individual is taken to have received the document at the time specified in section 494C in respect of that method.
(1B)However, subsection (1A) does not apply if subsection 52(3C) (which relates to giving notifications in the case of combined applications) applies in relation to the minor.
Giving by hand
(2)One method consists of the Minister (including by way of an authorised officer) handing the document to the recipient.
Handing to a person at last residential or business address
(3)Another method consists of the Minister (including by way of an authorised officer) handing the document to another person who:
(a)is at the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; and
(b)appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(c)appears to be at least 16 years of age.
Dispatch by prepaid post or by other prepaid means
4)Another method consists of the Minister dating the document, and then dispatching it:
(a)within 3 working days (in the place of dispatch) of the date of the document; and
(b)by prepaid post or by other prepaid means; and
(c)to:
(i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or
(ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; or
(iii) if the recipient is a minor--the last address for a carer of the minor that is known by the Minister.
Transmission by fax, email or other electronic means
(5)Another method consists of the Minister transmitting the document by:
(a)fax; or
(b)email; or
(c)other electronic means;
to:
(d)the last fax number, email address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents; or
(e)if the recipient is a minor--the last fax number, email address or other electronic address, as the case may be, for a carer of the minor that is known by the Minister.
When the Minister hands a document by way of an authorised officer
(6)For the purposes of sections 494C and 494D, a reference in those sections to an act of the Minister includes, if the act is of a kind referred to in subsection (2) or (3) of this section, a reference to an act of the Minister by way of an authorised officer.
Documents given to a carer
(7)If the Minister gives a document to a carer of a minor, the Minister is taken to have given the document to the minor. However, this does not prevent the Minister giving the minor a copy of the document.
(Emphasis in original)
Also relevant to the issues are s.494C of the Act, which provides relevantly, that if the Minister gives a document to a person by the method in s.494B, the person is taken to have received the document at the end of the day in which the document is transmitted. Finally, in respect of notification, s.494D is important. Section 494D states:
Authorised recipient
(1)If a person (the first person ) gives the Minister written notice of the name and address of another person (the authorised recipient ) authorised by the first person to receive documents in connection with specified matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents in connection with those matters that the Minister would otherwise have given to the first person.
Note: If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.
(2)If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. However, this does not prevent the Minister giving the first person a copy of the document.
(3)Subject to subsection (3A), the first person (but not the authorised recipient) may vary or withdraw the notice under subsection (1) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the first person's authorised recipient.
(3A)In addition to the first person being able to vary the notice under subsection (1) by varying the address of the authorised recipient, that recipient may also vary that notice by varying that address.
(5) The Minister need not comply with subsection (1) if:
(a)the authorised recipient is not a registered migration agent (within the meaning of Part 3); and
(b)the Minister reasonably suspects that the authorised recipient is giving immigration assistance (within the meaning of that Part); and
(c) the Minister has given the first person a notice, by one of the methods specified in section 494B, stating that he or she does not intend to give the authorised recipient documents as mentioned in subsection (1).
(Emphasis in original)
In terms of the jurisdiction of the Tribunal, the obligation to review a pt.5-reviewable decision, which the decisions of the delegate were in this case, only arises if an application is “properly made under section 347”. Section 347 requires an application for review of a pt.5-reviewable decision to be given to the Tribunal within the prescribed period, being a period not later than 28 days after notification of the decision. The prescribed period in these circumstances is found in reg.4.10, which “starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received”.
The applicants’ contention relies on the distinction, in sub-ss.494B(5)(d) and (e), between the case of an applicant who is a minor and one who is not. Counsel for the applicants says that, if the applicant is a minor, then s.494B(5) requires the notification to be by way of document sent to, relevantly, an email address for a “carer of the minor that is known by the Minister”. In this case, he asserts, Md. Haque, the migration agent, was not a carer of the minor.
The difficulty with the proposition which lies at the heart of this application, is that sub-section (5) and in fact the whole of s.494D refers not to the applicant, but to a recipient. Sub-section 494B(1A) provides that for the purposes of the provision of the Act or Regulations that “require or permit the Minister to give a document to a person (the recipient)”. That means that sub-s.494B(5)(e) of the Act, where it refers to recipient does not necessarily refer to an applicant, but it is a reference to a person to whom the Minister is required, by a provision of the Act or Regulations to give a document.
In this case, the requirement in s.494D of the Act provides the answer. That provision, in the circumstances where Md. Haque was given as an authorised recipient by each of the applicants, including the third and fourth applicant, required the Minister to give Md. Haque, instead of each of the applicants, any document in connection with those matters that the Minister would otherwise have given to the first person. That means for the purposes of s.494B, the recipient in question was not each of the applicants, but was Md. Haque. There was no evidence that Md. Haque was a minor. Indeed, it may be inferred from the fact that he has attained several degrees, including two Masters of Law from different universities, that he is not a minor. For that reason, s.494B(5) of the Act did not apply in the facts of this case.
Counsel for the applicants argued that the answer to this was in s.66 of the Act, which requires an applicant to be notified of a decision in the prescribed way. The submission is correct, but only insofar as it goes. However, in light of s.494D(2), there is a deeming that that has been complied with. The difficulty with the construction argument put forward by the applicants is that it requires s.494B, together with s.66, to be read in the absence of, rather than to be governed by s.494D of the Act. The plain terms of s.494D undermine that argument.
In those circumstances, I find on the uncontested facts, that as the notification of decision by letter 16 June 2016, was sent by email and received on the same day by the authorised recipient, the applicants were taken, pursuant to s.494D, to have been given those documents. Therefore, s.66 of the Act was complied with on that day, and the timeframe for making an application under s.347 of the Act commenced on that day, and finished on the twenty first day after it: namely, 7 July 2016. The application for review was not filed until after that day. Therefore, the application was not properly made and there was no obligation on the Tribunal to review the decisions of the delegate.
Conclusion
For those reasons, there is no power in the Court to compel the Tribunal to undertake a task of review, and the application must be dismissed.
At the commencement of the proceedings I expressed the view that leave was required in order for the applicant to raise the argument. No opposition was taken to the amendment to include the argument. Although I have ultimately come to the view that the argument must fail, I nevertheless consider that it had some merit and, even though there was no real excuse for the delay in raising it, the fact that it could be dealt with today means that there should be leave to amend.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 13 December 2017
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