Khan v Minister for Immigration
[2007] FMCA 419
•12 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KHAN & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 419 |
| MIGRATION – Visa – Migration Review Tribunal – application for review of MRT decision affirming a decision of a delegate of the Minister not to grant a student visa – notification – Bridging visa – writs issued. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.53, 66, 494B, 494C, 494D Migration Regulations 1992 (Cth), reg. 2.1.6(3), 2.16(1)(c) |
| Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 377 referred to |
| First Applicant: | SANAUL HAQUE KHAN |
| Second Applicant: | SHALEEMA BEGUM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG 2739 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 12 March 2007 |
| Date of last submission: | 12 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 12 March 2007 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Jones |
| Counsel for the Respondent: | Mr Smith |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the title of the respondent is changed to Minister for Immigration & Citizenship.
That there be a declaration that the letter dated 6th February 2006 to the first applicant was not a lawful notice to the second applicant of the respondent's decision to refuse her application for a student visa.
That there be an order in the nature of mandamus requiring the respondent to notify the second respondent in accordance with Migration Act (1958) and the Migration Regulations (1994) of the decision to refuse her application for a student visa.
That there be a declaration that the second applicant continues to hold a bridging visa (Class WA) until the prescribed period of time following the notice of the decision.
That there be an order in the nature of prohibition restraining the respondent minister and his servants or agents from taking the action to detain or remove the second applicant from Australia during the validity of the second applicant's (Class WA) Visa.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2739 of 2006
| SANAUL HAQUE KHAN |
First Applicant
| SHALEEMA BEGUM |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The application before the Court is an application for orders in respect of the refusal by a delegate of the Minister, then referred to as the Minister for Immigration & Multicultural Affairs, to further notify the applicant for decision to refuse to grant them student visas. A useful summary of background is contained in the written submissions prepared by Mr Smith of counsel on behalf of the respondent minister. At paragraph two of those submissions, Mr Smith writes:
That on 26th August 2005 the applicants lodged an application for a temporary student visa. In response to question 20 in the prescribed form, "address for correspondence", the applicants gave the address, 5/9 MacDonald Street, Lakemba, New South Wales 2195 as an answer. That address was also given as the applicant wife's address in response to question 43.
On 6th February 2006 a delegate of the respondent made a decision to refuse to grant the applicants' their visas. By a letter dated 6th February 2006, despatched on the same day, (refer to the affidavit of Gemma Anne Broderick, annexure A thereto) 2/5 MacDonald Street, Lakemba, New South Wales 2195, the delegate notified the applicants that their visas had been refused.
I should mention that I used the term, "notified" in this sense as that is a direct quote from the submission of counsel for the respondent. It is of course the submission by the applicant's solicitor, Mr Jones, that the notification was not in fact a lawful notification. The applicants seek a number of orders. First: a declaration that the letter of
6th February 2006 was not a lawful notice to either the first or the second applicant about the respondent's decision to refuse their application for student visas. Second: an order in the nature of mandamus, directing the respondent to notify the first and second applicants in accordance with the Act and regulations and the decision to refuse their applications for student visas. Third: a declaration that the applicants continue to hold (Class WA) bridging visas until the prescribed period of time following notice of a decision. Fourth; a writ of prohibition restraining the respondent and the respondents servants or agents from taking the action to detain or remove the applicants from Australia during the period of validity of their (Class WA) visas and fifth: an order for costs.
The first point relates to the applicant's submission that notice to the first and second respondents of the refusal of the visa was not a proper notice. Mr Jones refers the Court to s.66 of the Migration Act which requires the Minister to notify an applicant of the decision to grant or refuse a visa. He submits - and I will quote from his submissions:
In the case of a decision that is reviewable under the Act, the notice must state, inter-alia, "the time in which the application for review may be made." Section 66(2)(d)(ii). The document at pages 52 to 56 of the Court book states: "You” that is the first applicant, "are entitled to apply for a review of this decision.
If you decide to lodge a review application you must do so within 21 calendar days after you receive this letter. You are taken to have received it seven working days after the date of this letter." A notice under s.66 is to be given to a person in the prescribed way. Regulation 2.16(3) prescribes that in the case of a decision to refuse a visa the notice be given by one of the methods specified in s.494B. The only method listed in the section which involves sending the notice by mail, is at sub-s.(4). The document must be dated and despatched within three working days of its date. Pursuant to s.494(c)(4) a person in Australia is taken to have received the document within seven working dates only if it was sent by the method in s.494(b).
The submission goes on to say:
That the statement in the document to the effect that the first applicant would be taken to have received it seven working days after its date was incomplete. To comply with the legislation the document should have stated that he would be taken to have received it seven working days after its date providing it was despatched within three days of that date. As a result, the document did not comply with sub-s.66(2)(d)(ii) of the Act and the minister's duty to give the first applicant a valid notice of a decision remains to be done. Pursuant to s.494D of the Act a person may give the minister written notice of a name and address of another person who is to be the first person's authorised recipient and the minister must then give the authorised recipient instead of the first person any documents that the minister would otherwise have given to the first person. When applying for their visas, the applicants did not appoint each other or any other person as their authorised recipients.
The letter that appears at pages 52 to 56 of the Court Book is addressed to the first applicant only. No notice was sent to the second applicant. The minister's duty to give the second applicant a valid notice of the decision remains to be done. If the applicants had not been validly notified of the decision to refuse their visas then the bridging visas granted to them on the basis of their applications remain in effect until 28 days after valid notice is given. (See Migration Regulation Schedule 2 Clause 010.511(b)(ii)).
That is a summary of the submissions given by the solicitor for the first and the second applicants. In oral submissions I have been referred to the decision of the Full Court of the Federal Court in Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 377.
Both Mr Jones for the applicants and Mr Smith of counsel for the respondent, referred the Court to this decision and in particular relied on paragraphs 29, 32 and 33 of that decision.
The respondent also relies on an affidavit of Gemma Anne Broderick, solicitor, to which I have briefly referred. The affidavit annexes a copy of a document entitled; "Registered post and insurance, multiple lodgements in respect of registered post number RP26206705", sent by her to a Ms Bernadette O'Sullivan, a senior legal officer employed by the first respondent to the department and the annexure records that a letter bearing that registered post number and address to the first applicant was lodged with Australia Post on 7th February 2006 by the first respondent's department for despatch by Australia Post.
It is not in dispute that the first applicant is taken to have received the document. Nevertheless, in the circumstances of this case, it appears that neither applicant actually physically received it. That of course is not a matter upon which this case would turn because it is not necessary to prove actual receipt. The point being made on behalf of the applicants is that whether or not they received it, that the letter was not valid notice to either one of them. Therefore, if it was not a valid notice, time for filing an application for review does not begin to run and the first applicants' bridging visa has not expired because he had not received a valid notice.
With respect to the second applicant; the letter was - it was submitted that the letter was addressed to the first applicant with the intention that he would notify the second applicant. The point made by solicitor for the applicants is that under s.494 it is not contemplated that the letter would be posted to someone else. I am referred, as I said, to the decision of Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 377 and in particular at [29] where their Honours, O'Connor and Mansfield JJ say that:
Whether or not the procedure adopted by Australia Post for delivery of registered mail is as described by the learned judge at first instance; the position is that the letter was sent by pre-paid post that was addressed to Mr Singh at the address he provided under s.53 of the Act which was clearly intended to have been received by him.
The point that is made in respect of the second applicant is that the letter was addressed to the first applicant with the intention that he would notify the second applicant. But the section does not contemplate that one applicant is to be required to deliver a document to another applicant. In respect to the second applicant; she was never notified in any way and no letter was sent to her. In effect it is submitted that by the practice of sending the letter to the first applicant with the intention that it should be passed onto the second applicant, a notification of the second applicant was required to be given by the first applicant which is not as provided by the legislation. In reply to the suggestion that in respect of the second applicant a declaration that she was not validly served or any orders in respect to the second applicant would be futile; Mr Jones submitted that there is value to the second applicant in a declaration that the applicants continue to hold bridging visas (Class A). At the moment they hold bridging visas
(Class E) but there is a disadvantage in respect of bridging visas
(Class E) as opposed to (Class A). If a person leaves Australia on a bridging visa E, the person faces a three year ban on applying for another temporary visa and that does not apply to the holder of a bridging visa A.
The counsel for the minister prepared helpful written submissions in respect of the two issues. As to the first issue; the letter did not comply with s.66(2)(d)(ii). Mr Smith submitted that the obligation in s.66(2)(d)(ii) of the Act is simply to state the time in which an application for review may be made. In this case, since the letter was dated 6th February 2006 and posted on that day, the applicants were taken to have received the documents seven working days after the date of the document under s.494C(4)(a) of the Act. Where it is in fact the case that the document was sent within three days of the date of the document that is the effect of the deeming provision of s.494C of the Act. Accordingly, the letter properly stated the time within which the applicant's could apply for review of the decision and so complied with s.66(2)(d)(ii) of the Act.
The oral submissions Mr Smith put to the Court that the obligation to notify under s.66 is not really an obligation to notify at all but it is an obligation to notify in the prescribed way, even if the applicant is not actually notified then if the prescription the prescribed way is followed, then the Act is complied with. His submission is that both applicants were notified in the prescribed way. Once it was accepted that the letter was sent within three days then the applicants must be taken to have received the notification within 21 days after receiving the letter. There is no requirement in words that Mr Jones submitted; the gloss, if you like, to be added. He submitted in fact that to construe sub-s.66(2) in the way that Mr Jones and the applicant does could in fact lead to confusion.
His view is that in fact, rather than Singh's (supra) case assisting the Act, Singh's case in fact assists the respondent. He refers me to, in particular, [9] and [32] of their Honour's decision. Paragraph 9 refers to the provisions of regulation 2.16(1) as it then was and in [32] their Honours say:
The purpose of the provisions under construction is to provide a scheme to achieve administrative certainty in the manner and time of giving notice of decisions made with respect to visa applications as to the expiry date for any application to review such decisions.
At [33] their Honours; referring to use of registered mail as a means of sending by pre-paid post, notice of a decision in compliance with s.66(1) of the Act, their Honours go on to say:
Provided that the notice is addressed to the applicable address under s.53 that notice will have been sent to the last address of the visa applicant. That action will therefore fall within the scope of operation of regulation 2.16(1)(c) or whatever the precise process which Australia Post adopts to achieve delivery of that notice to the addressee or to the premises to which it is addressed.
I have given consideration to the situation in respect of each of the applicants. At the hearing Mr Jones submitted that his first submission was that there was an invalid notification to both applicants. In the alternative, even if the Court was not satisfied in respect of the situation as far as the first applicant was concerned, that there was a different situation in respect of the second applicant, there was, if you like, a removal of a further step. Those are my words rather than the solicitor for the applicants' words.
In respect of the first applicant; I have considered the submission that the wording of the letter of notification does not comply with s.66.
The submission was that the wording, as it presently stands:
You are entitled to apply for a review of this decision. If you decide to lodge a review application you must do so within 21 calendar days after you receive this letter. You are taken to have received it seven working days after the date of this letter.
That wording, it is submitted, does not set out the situation and that there is a need to add to those words by pointing out that the time limit only applies if the letter was actually sent within three working days. In other words; the words would need to be something like:
If and only if the letter was sent within three working days of the date.
The failure to do this vitiates the notice at the time provided the filing of an application for review does not begin to run. In my view; whilst that is an interesting submission, I am not persuaded that it is a submission that accords with law. In my view, the position as described by counsel for the respondent minister represents the law. That is, that the obligation of s.66(2)(d)(ii) of the Migration Act is simply to state the time in which an application for review may be made. This means that the applicants were taken to have received the documents seven working days after the date under the provisions of s.494C(4)(a) of the Act where it is in fact the case that the document was sent within three days of the date of the document. That is the effect of the deeming provisions in s.494C of the Act.
Accordingly, as was submitted, the letter properly stated the time within which the applicant's could apply for review of the decision and so complied with s.66(2)(d)(ii) of the Act. That is, to my mind, the appropriate answer and I am inclined to agree with the submission by Mr Smith of counsel that adding the words as suggested by Mr Jones, could lead to some confusion. In the absence of some evidence the document was not sent within three days of its date then the administrative certainty to which the Full Court referred and which presumably was the intention of the legislature, would be achieved.
It must follow therefore that the contention on behalf of the first applicant must fail. I am mindful of the words of their Honours in Singh at [32]:
The purpose of the provisions under consideration is to provide a scheme to achieve administrative certainty in the manner and time of giving notice of decisions made with respect to visa applications and as to the expiry date for any application to review such decisions.
Their Honours went on to say:
The decision has clearly been taken by the legislators that that objective should override the injustice which may occur because a particular visa applicant sometimes, entirely without fault on that person's part, does not in fact receive that notice in a timely way as in the case of Singh or in some cases such as Dawai v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 379 and Tabet v Minister for Immigration & Multicultural Affairs (1997) FCR 446. Such persons may lose their right to seek review of a decision refusing a visa before they are aware that the decision has been made. However, once it is recognised that priority has been given to the fulfilment of that purpose it is appropriate in the absence of any indication of the contrary to apply the clear words of regulation 2.16(1)(c) which are consistent with it.
In my view; submissions on behalf of the respondent minister are in accordance with what their Honours had to say quite clearly in [32] of Singh's case.
I turn now to the situation in respect of the second applicant.
As Mr Jones submitted; this is a different situation. The letter to the first applicant was clearly addressed to the appropriate address and it was addressed to the applicant at that address. The letter advises the applicant of the delegate's decision to refuse the grant of a visa and goes on to say:
The following members of your family have also been refused grant of a visa, Shaleema Begum date of birth 1st March 1970.
In this case the second applicant. That is the only notification to the second applicant.
In this case I am not persuaded that this is sufficient. It is not just a case that there is a compliance with the Act by sending a document to an address. Documents must be sent to a person at an address. It is of course irrelevant whether the person actually received it. In this case what has happened is that between the notification and the second applicant has been interposed to the first applicant. That is not, to my mind what the section requires. It is not, to my mind, what the legislature intended and it is not, with the greatest of respect, what I believe that the Full Court said in Singh. Had their Honours intended that the situation as put by counsel for the first respondent was to be the case, then in my respectful opinion their Honours would have said that. But in my reading of their Honours' decision in [29], [32] and [33] their Honours do not say that.
Mr Jones, on behalf of the second applicant, put that the effect of sending the letter to the first applicant at that address was a process that involved requiring the first applicant to notify the second applicant. And that is not a requirement of the legislation. It is an inter-position, as I said, of the first applicant, between the delegate and the second applicant. In my view, I am satisfied that a declaration should be made in respect of the second applicant that she was not notified. I have considered the futility argument. It is put on behalf of the respondent minister that such declaration on behalf of the second applicant would be futile. I am not persuaded that that is the case.
Mr Jones has pointed out that there is a difference in the type of visa to which a person would become entitled and the consequence of the different type of visa is in fact a very real and valid consequence. I am not satisfied that a declaration would be futile. I am of the view that the practice of writing to one applicant at the appropriate address and asking that applicant to notify another applicant does not comply with the legislation and in my view it is a practice that should be discontinued. If an applicant is to be notified then, in my view, it is up to the minister to notify the applicant by sending the applicant a letter at the prescribed address; not by sending a letter to someone else at the prescribed address because it diverts the document, the notification from the intended recipient. In my view therefore I should find in favour of the second applicant and I propose to do so.
In my view the submission by Mr Jones has merit as he bluntly puts it; each party has won half the case, and I make no order for costs.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 23 March 2007
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