MAITRA v Minister for Immigration and Border Protection

[2014] FCCA 910

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAITRA & ORS v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 910

Catchwords:
MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether the Migration Review Tribunal failed to make a relevant enquiry – whether the Migration Review Tribunal erred in finding that the delegate of the first respondent had complied with the statutory regime in notifying the applicant of its decision – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 65, 338, 347, 474, 494B, 494C
Migration Regulations 1994 (Cth) regs.2.01, 4.10

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377
Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362
SZJDS v Minister for Immigration and Citizenship [2012] FCAFC 27

First Applicant: MANASH KUMAR MAITRA

Second Applicant: MANIKA SIKDER

Third Applicant: ADRITA MAITRA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1352 of 2013

Judgment of: Judge Emmett

Hearing date: 6 May 2014

Date of Last Submission: 6 May 2014

Delivered at: Sydney

Delivered on: 6 May 2014

REPRESENTATION

Solicitor for the Applicants: Mr Nigel Dobbie
(Dobbie and Devine Immigration Lawyers)

Counsel for the Respondents: Mr Bora Kaplan

Solicitors for the Respondents: Sparke Helmore Lawyers

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1352 of 2013

MANASH KUMAR MAITRA

First Applicant

MANIKA SIKDER

Second Applicant

ADRITA MAITRA

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal, dated 17 May 2013 and handed down on 20 May 2013 (“the MRT”).

2. The second and third applicants’ applications are dependant on the outcome of the first applicant and neither have made any other application in their own right. Accordingly, these reasons refer only to the first applicant (“the Applicant”).

3. The issue in this case is whether the MRT had jurisdiction to review the decision of a delegate of the first respondent (“the Delegate”). The MRT found that it did not have jurisdiction to review the Delegate’s decision as the Applicant’s application for review had not been received within the period during which a valid application could be made.

4. Prior to considering the proceeding before this Court, these reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the decision of the Delegate, and a summary of the MRT’s review and decision.

Background

1. The first and second applicants arrived in Australia on 31 March 2008, having departed legally from Bangladesh on a passport issued in their own names and a Student visa.

2. On 24 July 2012, the Applicant lodged an application for a Student (Class TU) (subclass 572) visa with the Department of Immigration and Citizenship (“the Department”).

3. On 16 January 2013, the Delegate refused the Applicant’s application for a Student (Class TU) (subclass 572) visa.

4. On 19 March 2013, the Applicant lodged an application for review of the Delegate’s decision by the MRT.

5. On 17 May 2013, the MRT found that it did not have jurisdiction to review the decision of the Delegate.

6. On 17 June 2013, the applicant filed an application in this Court seeking judicial review of the MRT’s decision.

Legislative framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Student (Class TU)(subclass 572) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 2 to the Regulations).

2. Under s.338 of the Act, a decision to refuse to grant a Student visa is a decision which may be reviewed by the second respondent.

3. Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

4. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision. (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

5. Section 347(1)(b) of the Act, s.494C(4) of the Act, and reg.4.10 of the Regulations have the effect that the application to the MRT for review of the Delegate’s decision must be made within 21 days following deemed receipt by the applicant, seven working days after the date of the document.

6. Relevantly, s.494B of the Act prescribes the methods by which the first respondent may give documents to a persons, as follows:

   “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.

   ...

   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.”

7. Relevantly, s.494C of the Act prescribes when a person is taken to have received a document from the first respondent in the following terms:

   “Dispatch by prepaid post or by other prepaid means

   (4)  If the Minister gives a document to a person by the method in subsection 494B(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.”

The Delegate’s decision

1. On 20 August 2012, the Department sent a letter to the Applicant requesting more information regarding his application, to be responded to within 28 days.

2. 24 August 2012, the Applicant’s migration agent sent the Applicant a letter urging him to supply the requested documents as soon as possible.

3. On 17 September 2012, the Applicant emailed the Department that his father had become ill and was unable to obtain the requested documents and requested a time extension of two weeks. The statement regarding the father’s illness was unsupported by any medical certificate or medical evidence.

4. On 16 January 2013, the Delegate refused the Applicant’s application for a Student visa on the basis that the Applicant failed to meet the relevant criteria for that visa.

The MRT’s review and decision

1. On 19 March 2013, the Applicant lodged an application for review of the Delegate’s decision by the MRT.

2. On 11 April 2013, the MRT wrote to the Applicant in the following terms:

   “I am writing about the application for review made by you in relation to decisions to refuse to grant Student (Temporary) (Class TU) visas.

   I am of the view that your application is not valid applications as it was not lodged within the relevant time limit. The time limit is 21 days from the day on which you are taken to have been notified of the primary decisions. As the primary decisions were sent to you by post, you are taken to have been notified on 25 January 2013. Therefore, the last day for lodging the application for review was on 15 February 2013. As the application was not received until 19 March 2013, it appears to be out of time. However, this is a matter which must be determined by a Tribunal Member.”

3. On 22 April 2013, the applicant’s solicitor, Mr Nigel Dobbie, wrote to the MRT requesting information regarding the dispatch of the letter containing the Delegate’s decision to the applicant.

4. On 29 April 2013, the MRT sent to the applicants the requested information and granting a time extension to reply to the letter sent 11 April 2013 to 13 May 2013.

5. On the same day, Mr Dobbie replied to the letter acknowledging receipt, and submitted the following:

   “We note that it is possible that the letter was not put in the envelope correctly, such that the address might not have been showing: the Return to Sender stamp from the post office does not indicate the reason for it being returned, such as unclaimed. Although the putting of a letter in an envelope where the address could not be read or sufficiently read might be uncommon, it is not fanciful thinking that it could occur, especially where there is a large volume of mail being sent, as is the case with Converga, and where it is common knowledge that mailing operations are not perfect in their execution; the envelope the letter was put it [sic] is a window envelope: there might not have been a clerical error in the way the letter was put in the envelope; for example, the letter might have been put in an envelope in a way that it could not be delivered because the address could not be sufficiently read (or read at all), such that it would not be given for the purposes of the Act. On that basis, there is sufficient doubt for the Tribunal to find that the decision was only given when it was emailed to our client on 27 February 2013; the burden is on the Minister to show that the letter in question was put in the envelope in a way where the address was readable so that it could be delivered. The lack of any indication from the post office as to why it was returned to sender supports the argument that the letter might have been incorrectly placed in the envelope as hypothesised above, as none of the boxes setting out the reason for returning the letter are marked.

   Give the significance of jurisdiction, the impact on the review applicants and the ability of the Minister to prove that a decision is ‘given’, and the inability of a visa applicant to show that a decision as given, the statutory burden would lie on the Minister to prove that the letter to our clients was given in accordance with the Act in order to meet the evidentiary burden required, not merely show the systems/operations of how decisions are usually given (as that would only invite the Tribunal to draw an inference based on a system/operation, and not require further information relating specifically to our clients that should be provided). Of course, it is easy for the Minister to have a system where he could show that the right checks and balances were taken to ensure that a letter is given; such as scanning/copying the envelope before it is sent out to show that the address is visible. A failure to have such safeguards should not be held against our clients by the drawing of an inference contrary to our clients.

   As such, it is submitted that the Tribunal has jurisdiction to review the application, as the application for review was made within the prescribed time limits.”

6. No further documents were submitted to the MRT before 13 May 2013.

7. On 17 May 2013, the MRT found that it did not have jurisdiction to review the application as it was not lodged within the 21-day limit as prescribed in s.347(1)(b) of the Act.

8. The MRT noted that it considered the submissions contained within Mr Dobbie’s letter, dated 29 April 2013, however was not persuaded that the applicant was notified incorrectly, in detailed in s.494C of the Act.

The proceeding before this Court

1. The applicant was represented before this Court by his solicitor Mr Dobbie.

2. Mr Dobbie confirmed that the applicant relied only on grounds 1 and 2 of the Amended Application, filed on 4 February 2014 as follows:

   “1. The Second Respondent failed to make a relevant enquiry.

   Particulars

   (i) The delegate’s decision was made on 16 January 2013. The Tribunal found that the Applicants had been notified of the delegate’s decision, in accordance with s494C of the Migration Act 1958, on 25 January 2013. The Tribunal found that their application for review, made on 19 March 2013, was not made within the prescribed time limits for it to have jurisdiction to review the delegate’s decision.

   (a)The Tribunal failed to make an obvious enquiry of the Minister and or his mailing agent, Converga, about a critical fact for the purposes of s494B(4) and s494C(4) of the Act; namely, whether it was possible that the delegate’s letter might not have been put in the ‘windowed’ envelope correctly by the Minister’s contractor for mail, Converga, such that it might not have been deliverable, with the result that it was then returned without being given.

   (b) The Tribunal failed to make an obvious enquiry to the Post Office which returned the delegate’s letter about a critical fact for the purposes of s494B(4) and s494C(4); namely why the post office returned the delegate’s letter enclosing the decision record and placed a sticker on it stating ‘return to sender’ without indicating why the letter was not delivered, or could not be delivered.

   (c) The onus is on the Minister to show that the delegate’s letter was given for the purposes of s494B and s494C(4) of the Act. That required a necessary enquiry from the Tribunal of the Minister and or Converga as to whether the letter was placed in the ‘windowed’ envelope correctly.

   2. The decision of the Second Respondent is arbitrary

   Particulars

   (i) The decision of the Tribunal is arbitrary because it did not have any reasonable basis on which to determine that the delegate’s letter had been placed correctly in the ‘windowed’ envelope such that it was given to the Applicants for the purposes of s494B(4) and s494C(4) of the Act.”

3. At the heart of the applicant’s submissions is a contention that the MRT fell into jurisdictional error in finding that the letter notifying the applicant of the Delegate’s decision, dated 16 January 2013, was given in accordance with the statutory scheme provided for under the legislation, particularly s.494B of the Act. Mr Dobbie contended that the MRT thereby erroneously concluded that the applicant was required to lodge his review application with the MRT by 15 February 2013. The applicant submits that, in the circumstances, the MRT erred in finding that it had no jurisdiction to consider the applicant’s review application.

4. It is common ground that on 16 January 2013 the first respondent sent the applicant a copy of the Delegate’s decision and that the letter itself was correctly addressed to the applicant at the applicant’s last address for service provided by the applicant to the first respondent.

5. The letter was placed in an envelope with a window through which one would ordinarily see the addressee and address.

6. On 29 April 2013, the MRT wrote to the applicant attaching a copy of a mailing document created by its mailing agent, Converga, recording the date of dispatch of the letter of the Department’s letter to the applicant, the name of the applicant, and the suburb in which the applicant lived, Belmore. The letter also attached a copy of the envelope which was returned to the Department in early February.

7. The envelope had affixed to it a stamp containing the following information:

   “Return to sender

   4 February

   4 unticked boxes stating;

   Insufficient address

   Left address / unknown

   Refused

   Unclaimed”

8. The envelope had a further stamp stating that it was received by Converga on 20 February 2013

9. On 11 April 2013, the MRT wrote to the applicant informing him that the last day for lodging his application for review was 15 February 2013, whereas the application was not received until 19 March 2013.

10. As stated above, the MRT was satisfied that the applicant was notified of the Delegate’s decision in accordance with the statutory requirements and was deemed to have received notified of the Delegate’s decision on 25 January 2013 pursuant to s.494C of the Act.

11. As stated above, on 29 April 2013, the applicant’s representative wrote to the MRT raising concerns about whether the letter was put in the envelope correctly such that the address was visible. The letter expressed various concerns and hypotheses as to how the letter may have been placed in the envelope and asserted that the burden was on the first respondent to show that the letter was put in the envelope in such a way that the address was readable. The letter was cited in full in the MRT decision.

12. There is no evidence before this Court that the letter was not placed properly in the envelope such that the address was readable. There was also no such evidence before the MRT.

13. The applicant submits that the MRT should have made enquires to satisfy itself that the address was visible through the window of the envelope and that, before concluding that it had no jurisdiction to review the application, it should have taken further steps to satisfy itself that the letter complied with the requirements of s.494B of the Act.

14. Mr Dobbie submitted that the MRT should not have been so satisfied in circumstances where a windowed envelope had been used such that the MRT could not be satisfied that the applicant’s address was visible.

15. Mr Dobbie submitted that the MRT should have made obvious enquires of the Department in relation to the Department’s compliance with dispatching to the applicant’s last address an envelope with a visible address. Mr Dobbie also submitted that the MRT should have made enquiries of the Department’s mailing agent, Converga, if the letter was correctly placed in the envelope.

16. I do not accept the applicant’s submissions.

17. There was evidence before the MRT to show that the letter had been handled by Converga where its mailing document identified the name and suburb to which the letter was sent and to which a registered post pre-paid label was affixed to the envelope.

18. The MRT clearly considered the applicant’s arguments raised in the letter, dated 29 April 2013, as to whether the MRT could be satisfied that the address was visible, and was not persuaded by them.

19. In the circumstances, the MRT’s finding that the applicant was deemed to have been notified of the Delegate’s decision on 25 January 2013 in accordance with the statutory regime, was open to it.

20. Just as the Court, in the absence to evidence to the contrary, may infer that a copy of the Delegate’s decision was attached to the notification letter, the Court can infer that the letter was sent to a visible address.

21. I infer that the letter was properly sent to Belmore Post Office, having regard to the Converga mailing document, and that it remained there unclaimed. Whilst no option was ticked on the Return to Sender stamp, there is no evidence to suggest that there was some other reason for the letter being returned to the Department. As stated above, the options on the Return to Sender stamp were as follows:

    (i)The first option is “Insufficient Address.” That option was not ticked, and there was no evidence before the Court to suggest that the document was not properly addressed.

    (ii)The second option is “Left Address / Unknown.” That option is also unticked and is, in any event, irrelevant having regard to the deemed receipt pursuant to s,494C of the Act.

    (iii)The third option in “Refused.” That option is also unticked. There is no evidence to suggest that there was any refusal to accept the letter.

    (iv)The fourth option is “Unclaimed.” That option is also unticked.

1. In relation to the fourth option, “Unclaimed”, the first respondent read the affidavit of Mia Tuzovic, sworn 9 August 2013, attaching an email dated 6 August 2013 from Australia Post. The substance of that email is as follows:

   “Thank you for your recent enquiry concerning the return of a registered letter reference 493680396011.

   The letter arrived at the Belmore NSW Post Office on 18/1/2013 where it was held for collection until 2/2/2013.

   On 2/2/2013, the letter was returned to the Sender as uncollected mail.

   The letter was delivered to the Sender on 20/2/0013 [sic].”

2. The last three paragraphs of the email were objected to by the applicant and were admitted only as evidence of the fact that they were asserted by Australia Post. Based on those assertions and the Converga mailing document identifying Belmore as the letter’s destination, I infer that the letter was returned to the Department unclaimed. In all the circumstances, I also infer that the letter had a visible address.

3. Moreover, I do not accept the applicant’s submission that the MRT could have made obvious enquiries about the visibility of the address from the Department or from Converga. Nor was it necessary for it to do so. There is no evidence to suggest that a photocopy of envelopes showing addresses is made before dispatch either by the Department, Converga, or Australia Post.

4. The MRT was not required to make an enquiry about a critical fact that was not obvious and in respect of which the existence was not easily ascertained (see: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Further, “the fact that the information would not have made no difference to the outcome does not make it critical” (see: Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377 at [38]-[41] per Katzmann J).

5. In my view, the enquiries that the applicant contends should have been made by the MRT as to whether the address was visible were not obvious enquires. There was nothing before the MRT to suggest that the Delegate’s letter had been placed incorrectly in the windowed envelope and, as stated above, it was not an obvious enquiry that the MRT was required to make.

6. The MRT found the letter had been dispatched in accordance with the statutory regime, having considered the applicant’s submission that it should not be so satisfied. Having made that finding, the MRT concluded that it did not have jurisdiction to consider the applicant’s review application. That finding and conclusion was open to it.

7. Further, whilst it is for the MRT to satisfy itself that it has jurisdiction to consider the application before it, it is well established that the onus lies with the party seeking to establish jurisdictional error (see: Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 at [384] per Kenny J). As Jessup J stated in SZJDS v Minister for Immigration and Citizenship [2012] FCAFC 27 at [67]:

   “In either case, it lay upon the appellant to establish clearly the facts which would have warranted the remedy which he sought.  “The burden of establishing clearly the facts which show absence of jurisdiction always rests upon a prosecutor seeking a writ of prohibition …” (R v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138, 153) and, in my view, the position is no different where mandamus is sought.  Often, in migration cases, this burden of proof is theoretical rather than real because the factual basis of an applicant’s complaint appears clearly enough from departmental records, or from the reasons of the Tribunal or a like body.  However, the present was not such a case.”

8. Accordingly, there was no error in the MRT’s conclusion that it did not have jurisdiction and grounds 1 and 2 are not made out.

Conclusion

1. The MRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

2. The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  6 May 2014