Munir and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 1253

Munir and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1253 (30 April 2020)
Division:GENERAL DIVISION
File Number: 2020/2367
Re:Ali Munir
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date of decision: 30 April 2020
Date of written reasons: 11 May 2020
Place:Melbourne

The Tribunal decides it does not have jurisdiction to consider Mr Munir’s application and dismisses it under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).
..................[sgd]......................................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
PRACTICE AND PROCEDURE – jurisdiction – migration – visa cancellation under s 501(2) of Migration Act – nine day time limit – whether notice complied with s 501G(1) of the Migration Act and given in prescribed manner – whether application for review lodged within time – notice complied with and was given in accordance with s 501G – application not lodged within time – no discretion to extend time to lodge review application – no jurisdiction – application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
CASES
Khan v Minister for Immigration and Border Protection [2018] FCA 627 MZZDJ vMinister for Immigration and Border Protection [2017] FCAFC 156
Pathania v Minister for Immigration and Border Protection [2015] FCA 1262
Pomare v Minister for Immigration and Citizenship
[2008] FCA 458; 167 FCR 494

SZVRO v Minister for Immigration and Border Protection [2017] FCA 421
Wilson v Minister for Immigration and Citizenship
[2012] FCA 1421

REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
11 May 2020
INTRODUCTION

Mr Ali Munir has applied for an extension of time in which to review a decision by a delegate of the Minister for Home Affairs, made under s 501(2) of the Migration Act 1958 (“the Act”), to cancel his Class SI Subclass 189 Skilled – Independent (Permanent) visa.
The hearing was held by telephone on 30 April 2020. Mr Munir was represented by

Ms Kerdo of Kerdo Legal. The respondent was represented by Ms Jackson of the Australian Government Solicitor.
At the conclusion of the hearing I decided that the Tribunal does not have jurisdiction to consider Mr Munir’s application, gave ex tempore reasons, and dismissed the application under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”). On 30 April 2020 Ms Kerdo emailed the Tribunal requesting written reasons. These are the reasons requested, consistent with the requirements of s 43(2B) of the AAT Act.
LODGED MATERIALS
Ms Kerdo lodged the following materials prior to the hearing:
(a)Authority to act and release information, signed by Mr Munir on 17 April 2020, accompanied by a Form 956, appointing Ms Kerdo as his legal representative and authorised recipient;
(b)Statement of Reasons dated 8 January 2020 from the Department of Immigration, Citizenship, Migrant Services and Multicultural Affairs regarding the cancellation of Mr Munir’s visa (“Statement of Reasons”);
(c)Notice of visa cancellation dated 15 January 2020;
(d)Statement by Mr Munir dated 20 April 2020; and
(e)Letter from clinical psychologist, Dr Lucy Verwey, dated 28 April 2020.
Ms Jackson lodged written submissions dated 29 April 2020 opposing the extension of time and seeking dismissal of Mr Munir’s application.
BACKGROUND
Mr Munir is a 34-year-old citizen of Pakistan who has resided in Australia for approximately three years. The Statement of Reasons refers to Mr Munir’s visa being cancelled following two court appearances in 2019 as follows:
(a)Magistrates Court of Victoria (22 January 2019): Convictions for: Make threat to kill; Persistent contravention of a family violence order; Wilfully damage property; and Recklessly cause injury, for which Mr Munir was sentenced to a Community Corrections Order for 24 months; and
(b)Magistrates Court of Victoria (6 November 2019): Convictions for: Make threat to kill; and Contravention of a family violence intervention order – intending to cause harm / fear, for which Mr Munir was sentenced to an aggregate of six months imprisonment.
Mr Munir’s review application was received by the Tribunal on 23 April 2020, approximately three months after the date of the letter purporting to notify him of the delegate’s visa cancellation decision. His application stated:
‘I had some chronic mental illnesses and was in an anxious and panicked state when my visa was cancelled. Please see attached unsworn statement for further details.’
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the AAT Act and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction to review decisions of a delegate of the Minister under s 501 of the Act. Relevantly, by s 500(6B) of the Act, an application for review must be lodged within nine days after the day on which the person was notified of the decision. That nine-day lodgement requirement displaces the general rule under the AAT Act, where applications for review can be made within 28 days of a person receiving a decision (AAT Act s 29(2)(a)). That is because ss 25(1) & (3) of the AAT Act enable the Tribunal’s review jurisdiction to be varied by the enactment under which a reviewable decision is made.
Under s 501G(3) of the Act, the Minister must give a relevant notice of cancellation in the “prescribed manner”. The word ‘prescribed’ is defined to mean ‘prescribed by the regulations’ (s 5 of the Act). Division 2.10 of Part 2 of the Migration Regulations 1994 (Cth) (“Regulations”), relates to the giving of documents relating to visa cancellation. Notification of a decision to cancel a visa must be given in accordance with s 494B. Sub-sections 494B(1), and (5) are relevantly in the following terms:

494B   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.
…
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
Section 494C of the Act complements s 494B by clarifying when a person is taken to have received a document from the Minister. Sub-sections 494C(1) and (5) are relevantly in the following terms:
494C When a person is taken to have received a document from the Minister
(1)This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A).
…
Transmission by fax, email or other electronic means
(5)If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.
Section 494D of the Act relates to authorised recipients:
‘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.’
Section 501G of the Act requires that for decisions made under s 501 to cancel a visa:
‘(1) …
the Minister must give the person a written notice that:
(c)       sets out the decision; and
(d)       specifies the provision under which the decision was made and sets out the   effect of that provision; and
(e)       sets out the reasons (other than non-disclosable information) for the    decision; and
(f)        if the decision was made by a delegate of the Minister under…section                   501CA and the person has the right to have the decision reviewed by the              Administrative Appeals Tribunal:
(i)states that the decision can be reviewed by the Tribunal; and
(ii)states the time in which the application for review may be made; and
(iii)states who can apply to have the decision reviewed; and
(iv)states where the application for review can be made; and
(v)in a case where the decision relates to a person in the migration zone—sets out the effect of subsections 500(6A) to (6L) (inclusive); and
(vi)sets out such additional information (if any) as is prescribed.
Under s 501G(4) of the Act, even if the notice is not sent to a recipient in conformance with s 501G(1), that does not affect the validity of the decision. The effect of such a failure, however, may impact the time within which a recipient is required to lodge their review application. The date of notification is relevant because it determines the commencement of the time limit for making a review application to the Tribunal. If Mr Munir was not notified of the decision in accordance with s 501G(1), time does not begin to run until the notification is properly effected, and he is therefore not limited to the nine day requirement under s 500(6B) of the Act. As Lindgren J held in Pomare v Minister for Immigration and Citizenship [2008] FCA 458 (“Pomare”) at [31]:
‘In Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1292, Gray J, after referring to Zhan, held (at [53]) that where any of the requirements of s 66(2) of the Act were not complied with, there was no “notification” with the result that time did not begin to run in respect of an application to the Migration Review Tribunal. The same reasoning must apply to a non-compliance with paras 501G(1)(c)-(f).’
In Wilson v Minister for Immigration and Citizenship [2012] FCA 1421, Edmonds J, referred to Pomare in holding at [22]:
‘Finally, where any of the requirements of a written notice under s 501G(1)(c) to (f) are not complied with, there will be no “notification” with the result that time will not begin to run in respect of an application to the Tribunal under s 500(6B)...’
ISSUE TO BE RESOLVED
The Tribunal’s jurisdiction to consider Mr Munir’s application turns on whether he was notified of the delegate’s cancellation decision in accordance with the Act. If he was, then the nine day time limit imposed by s 500(6B) of the Act applied, Mr Munir failed to lodge his application in time, and the Tribunal has no jurisdiction. But if Mr Munir was not notified of the non-revocation decision in accordance with the Act, then the nine day time limit did not begin to run and the Tribunal must consider when he was taken to have been given the notice, and what time he then had to lodge his review application.
EVIDENCE BEFORE THE TRIBUNAL
Applicant’s submissions
It was not disputed in the pre-hearing materials or during the hearing that the visa cancellation notice was sent on 15 January 2020 to Mr Munir’s then Authorised Recipient at the last email address provided for the purposes of receiving documents. In
stead

Ms Kerdo submitted that the ‘biggest issue’ in this matter was whether, as a result of his mental health conditions and other contextual factors at the time, Mr Munir’s ‘extraordinary compassionate circumstances’ give rise to a question about whether there was ‘proper notification’ of the notice. Key aspects of Mr Munir’s statement and the submissions of
Ms Kerdo can be summarised as follows:
(a)Mr Munir was imprisoned from May to November 2019, during which his ‘mental health deteriorated’ and he ‘became very unwell;[1]’
[1] Statement dated 20 April 2020, 1 [3].
(b)On 12 November 2019 Mr Munir received a Notice of Intention to Consider Cancellation (“NOICC”) from the Department of Home Affairs;[2]
[2] Ibid [7].
(c)Mr Munir was released from prison on 16 November 2019 and subsequently engaged a migration agent to assist him in responding to the NOICC.[3] Mr Munir submitted:
[3] Ibid [8].
‘I was unhappy with the assistance these migration agents gave me. They            submitted what I gave them and they left some documents out and that   was all. I feel I did not have a real chance to access good legal advice to   understand what I had to address to keep my visa.’[4]
[4] Ibid, [9].
(d)Mr Munir claimed his mental health deteriorated after release from prison as he tried to re-establish himself, which was exacerbated by an illness suffered by his father. Mr Munir said he feared his father may die and asked his corrections officer for permission to travel to Pakistan to see him.[5] Later in his statement, Mr Munir said his ‘father’s condition stabilized around mid-March 2020;’[6]
(e)While the request to travel to Pakistan was being considered, Mr Munir claimed to have attended an interview on 15 January 2020 with his case officer at the ‘Werribee corrections office,’ where ‘four Border Force officers were waiting;[7]
(f)Mr Munir claimed to have suffered a ‘panic attack,’ felt ‘afraid and overwhelmed and signed’ the documents presented to him, but ‘did not have a chance to read the Notice of Cancellation.’ He also claimed to have ‘begged Border Force’ to take him to the airport because he wanted to ‘leave straight away’ and ‘could buy [his] own ticket;’[8]
(g)Mr Munir refers in his statement to calling his migration agent after arriving in immigration detention on 15 January 2020, and was informed by his migration agent that the visa cancellation notice was received that day;[9]
(h)On 17 January 2020, Mr Munir’s migration agent called to advise him that he had ‘a week to appeal the cancellation.’[10] Mr Munir claimed he was ‘trying to manage [his] mental health’ at this time, ‘which was getting worse as [he] could not sleep;’
(i)While in detention, Mr Munir claimed to have been told by ‘some immigration officers’ that he would have to ‘wait maybe 1 year or 3 years’ before being able to return to Australia, but was not told he ‘could be permanently banned from ever coming to Australia again.’[11] He claimed that on realising this it came as a ‘huge shock;’
(j)In relation to the conduct that brought him to the attention of immigration authorities, Mr Munir said in his statement:
‘I understand that my behaviour towards my wife and son was completely              wrong. I have been working so hard to understand why I behaved like this   and to take full responsibility for what I have done. I accept that family   violence in any form is not acceptable. I accept the punishment given to me                 by the Australian community. But to never see my son again, this is worse                    than any punishment I could endure. My son will never know me. I will   never have a chance to make amends for my behaviour to my child, to let                  him see that people who make mistakes can change, that I can change                and be a good father to him.
Please allow me to present my case before a tribunal Member. If it wasn’t            for my mental health issues, my father’s grave illness at that time, and the   lack of information around coming back to Australia one day to see my   child, I would have appealed to the AAT. [12]
[5] Ibid, [10]-[13].
[6] Ibid, [25].
[7] Ibid, [14]-[15].
[8] Ibid, [17]-[20].
[9] Ibid [22].
[10] Ibid, [23].
[11] Ibid, [24].
[12] Ibid, [27]-[28].
In her oral submissions, Ms Kerdo stated that the fragility of Mr Munir’s mental health was affected by the way he was taken into immigration detention on 15 January 2020. She said the Department made the decision to cancel his visa on 8 January, but did not act on that decision until 15 January 2020. Ms Kerdo said that when unexpectedly confronted with the consequences of the cancellation decision Mr Munir ‘had no opportunity to contact his migration agent, was panic stricken, didn’t want to go into detention, and signed the form.’ Moreover, it is claimed Mr Munir ‘did not have an opportunity to sit down and read the documents’ and it was only after his mobile phone was returned later that day in immigration detention, that he was able to call his migration agent. Ms Kerdo said even though Mr Munir had a week after speaking to his migration agent to submit his application for review to the Tribunal, mental health issues prevented him from doing so. Ms Kerdo referred to these as ‘extraordinary compassionate circumstances’ giving rise to a question of whether there was ‘proper notification’ of the visa cancellation notice.
During the hearing the following exchange occurred:
SM Nikolic: ‘What section of the Migration Act are you relying on for the proposition that the Tribunal has discretion to vary the nine day appeal requirement, for compassionate reasons or any of the other reasons that you highlight?’
Ms Kerdo: ‘Tribunal Member, I accept…that there isn’t such a thing in the Act. I’m putting my instructions - the instructions I’ve received by my client. I’ve notified him, told him of the restrictions the Tribunal would be under and nevertheless he has instructed me to proceed.’
Respondent’s submissions
Ms Jackson’s submissions can be summarised as follows:
(a)It is well established that the Tribunal has no power to extend time, because
s 500(6B) of the Migration Act states that the relevant provisions of the AAT Act under which the Tribunal can extend the time (including ss 29(7) and (8) of the AAT Act, which usually permit an applicant to make a written extension of time application, do not apply;
(b)The applicant was notified of the cancellation decision in accordance with s 501G of the Act. The notice: set out the decision; specified that the decision was made under s 501(2) of the Act; set out the reasons for decision; stated that the decision could be reviewed by the Tribunal; and set out the time in which the application for review could be made, who could make the application and where it could be made, and the effect of subsections 500(6A) to (6L);
(c)As the applicant was not in immigration detention on the date of the cancellation decision, the delegate was obliged to notify him of the decision in accordance with s 501G(3) and reg 2.55. Here, the delegate notified the applicant in accordance with reg 2.55(3)(d), namely by transmitting the document by email to the last email address known to the Minister, that being his former migration agents.
In her oral submissions, Ms Jackson stated that Mr Munir’s reliance on the way he claimed to have been taken into detention was not relevant to the Tribunal’s consideration about jurisdiction, which turned on s 500(6B) of the Act. The nine-day requirement began to run from the time of notification, unless Mr Munir had not been properly notified. That was not the case given Mr Munir’s own evidence that his authorised recipient was informed of the decision on 15 January 2020 and confirmed this in a telephone conversation with Mr Munir later that day. Mr Munir’s failure to lodge his application for review within nine days was therefore ‘fatal’ to his application, and there was no discretion under the Act for the Tribunal to extend the time for an application to be made.
CONSIDERATION

In Khan v Minister for Immigration and Border Protection [2018] FCA 627 at [30], Griffiths J elaborated upon the rationale for the strict framework applying to the service of documents and limited timeframe to appeal:

‘30Given the high volume of decisions made by the Minister and his Department, it is understandable that there is a need for certainty with regard to such matters as to when and how decisions on visa applications are to be notified. It is equally understandable that there is a need to specify time periods within which review applications must be made, by reference to the date when notification of adverse decisions has been made. These kinds of considerations explain why there are quite detailed provisions in both the Act and Regulations dealing with these matters. The legislative scheme includes provisions which deem matters to have occurred if particular actions are taken. The Note to s 494B(1A), s 494B(7), the Note to s 494D(1) and s 494D(5) are examples of such provisions.’
Did the contents of the notice comply with s 501G(1) of the Act?
The notice dated 15 January 2020 is addressed to ‘Mr Ali Munir.’ At the top of the notice it states: ‘Method of delivery: Email to Authorised Recipient at [email protected].’ The notice refers to earlier submissions made by Mr Munir’s then migration agent on
17 December 2019 in response to the NOICC.
Under the heading ‘Review Rights’ on page 2, the notice states:
‘Review Rights
The Department cannot consider the cancellation of your visa any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT for a merits review of this decision. An application for merits review of the decision must be given to the AAT within nine calendar days after the day on which you are taken to have received this letter.
As this letter was sent to your Authorised Recipient by email, you are taken to have received it at the end of the day it was transmitted.
See the attached information sheet about ‘How to Apply for Merits Review by the Administrative Appeals Tribunal, together with two copies of:
·the decision record (Statement of Reasons) that sets out the reasons for the decision (other than non-disclosable information, if any); and
·each source document (“Attachment”) considered by the decision maker (other than documents containing non-disclosable information, if any).
NOTE: If you believe that you may not have received a complete set of the above documents, contact the Department as soon as possible. You can telephone toll-free on …’
Client or Authorised Recipient: Please complete the attached acknowledgement of receipt of the Notice of visa cancellation under s501(2) of the Migration Act 1958 and return it to the address shown at the foot of the first page of this letter by one of the methods shown at the foot of the first page of the letter.
Yours sincerely,
…
The notice is signed above a signature block containing the Case Officer’s first name and position number within the National Character Consideration Centre within the Department of Home Affairs. The enclosures listed on page 2 are:
(a)Record of Decision dated 8 January 2020;
(b)Statement of Reasons dated 8 January 2020;
(c)Table of Evidence and Material;
(d)Attachments;
(e)How to apply for merits review by the Administrative Appeals Tribunal; and
(f)The effect of ss 500(6A) to 500(6L) of the Migration Act.
It is noteworthy that the information advising Mr Munir of his appeal rights, the nine-day time limit for doing so, when he was taken to have received the notice, and the method for lodging an application, was grouped in one area under a single heading on page two of the letter. Mr Munir was represented by a registered Migration Agent at the time, who the Tribunal infers was familiar with such documents and how to apply for AAT review of the visa cancellation decision.
The report of Mr Munir’s psychologist dated 28 April 2020, some two days prior to the jurisdiction hearing, appears solely based on Mr Munir’s self-reported claims about what occurred following his visa cancellation on 15 January 2020. Dr Verwey’s report refers to a psychological assessment conducted with Mr Munir on 12 December 2019 and

22 April 2020 in the following terms:
‘Mr Munir was seen for psychological assessment on 12/12/19. He was neatly dressed. He made good eye contact. There was no psycho motor slowing or agitation. He displayed a good range of well-modulated affect with no loss of control. He was not overly distressed, but expressed some persistent worrisome thoughts pertaining his visa status (sic) and seeing his son in future. He conveyed a positive self-opinion. Since this assessment, Mr Munir’s symptoms have intensified. A phone consultation was conducted with Mr Munir on 22/04/20. He described experiencing significant psychological distress and symptoms of anxiety and depression have increased. He described persistent low mood, feelings of hopelessness and helpless (sic), and ruminative worrisome thoughts. His thought content mainly focused on his concern about being unable to have future contact with his son.’
It is noteworthy that the psychological consultation on 12 December 2019 was a month prior to Mr Munir’s visa cancellation, and the April 2020 consultation was three months after the visa cancellation. There is no expert evidence before the Tribunal about the acute issues Mr Munir refers to proximate to the visa cancellation, or the nine-day period following, when he claimed to be unable to apply for review of the delegate’s decision. There is also no evidence that Mr Munir’s then authorised representative made any representations about Mr Munir’s inability to exercise his appeal rights. Indeed Mr Munir’s own evidence is that he spoke to his authorised representative on the afternoon of his visa cancellation, and received a telephone call on 17 January 2020 by way of reminder that he had ‘a week to appeal the cancellation.’[13]
[13] Ibid, [23].
Was the notice given to Mr Munir in compliance with s 501G(3) of the Act?
Section 501G(3) of the Act requires that the notice ‘must be given in the prescribed manner.’ In Pathania v Minister for Immigration and Border Protection [2015] FCA 1262, Gilmour J held at [18]:
‘…The Minister was required under s 494B to discharge that obligation by one of several methods. The choice as to which method was a matter for the Minister...Once a choice was made as to which method of notification was to be used, the Minister was required to comply strictly with the statutory provisions relating to that method.’
The method selected by the Minister to convey the notice was via email to Mr Munir’s Authorised Recipient pursuant to s 494D of the Act. In MZZDJ vMinister for Immigration and Border Protection [2017] FCAFC 156 the Full Court held at [24] that notifying the Department about an authorised recipient was not reliant on the use of any particular form of communication. It is clear from the evidence that VisaTEC Legal were acting for
Mr Munir at the time the notice was issued. The notice was sent in a ‘prescribed manner’ to the email address previously used to communicate with the Department on Mr Munir’s behalf. Consistent with the reasoning in SZVRO v Minister for Immigration and Border Protection [2017] FCA 421 at [47] per Beach J, a reasonable person could have understood the ‘course of dealing’ between VisaTEC and the Department via the [email protected] to constitute the last email address for receiving documents.
CONCLUSION
The information in the notice to Mr Munir about review rights was sufficiently clear and compliant with s 501G(1) of the Act. It was sent to Mr Munir’s then Authorised Recipient to ‘the last…email address…provided to the Minister for the purposes of receiving documents.’ Mr Munir was therefore taken to have received the notice at the end of the day on 15 January 2020, following which the nine day time limit began to run. Mr Munir did not lodge his extension of time application in respect of this matter until 23 April 2020, approximately three months after he was taken to have received the notice. His application is therefore well out of time. Consistent with s 500(6B) of the Act, the Tribunal has no discretion to extend the time for making an application.
DECISION
The Tribunal does not have jurisdiction to consider Mr Munir’s application and dismisses it under s 42A(4) of the AAT Act.

I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

[sgd]........................................................................
Associate

Dated: 11 May 2020

Date of hearing: 30 April 2020

Advocate for the Applicant: Ms Paghona Kerdo

Solicitors for the Applicant:

Advocate for the Respondent:

Kerdo Legal

Ms Melinda Jackson

Solicitors for the Respondent:

Australian Government Solicitor

Date of hearing:	30 April 2020
Advocate for the Applicant:	Ms Paghona Kerdo
Solicitors for the Applicant: Advocate for the Respondent:	Kerdo Legal Ms Melinda Jackson
Solicitors for the Respondent:	Australian Government Solicitor