MZZDJ v Minister for Immigration
[2013] FCCA 567
•28 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZDJ v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 567 |
| Catchwords: MIGRATION – Judicial review of Refugee Review Tribunal decision – application for a Protection (Class XA) Subclass 866 visa –delay in filing of Application – explanation for delay accepted – considered to be in the interests of the administration of justice – time extended to the Applicant – consideration of s.494B of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss. 65, 66(1), 412, 477, 494A, 494B, 494C, 494D Migration Regulations 1994 (Cth), reg. 2.16 |
| Parker v The Queen [2002] FCAFC 133 Tay v Minister for Immigration and Citizenship[2010] FCAFC 23 Vean of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs(2003) 204 ALR 80 |
| Applicant: | MZZDJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1527 of 2012 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 21 May 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 28 June 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms King-Siem |
| Solicitors for the Applicant: | Sabelberg Morcos Lawyers |
| Counsel for the First Respondent: | Mr Reilly |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
THE COURT ORDERS THAT:
The application for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) is granted.
The Application filed 30 November 2012 is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,646.
.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1527 of 2012
| MZZDJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 11 October 2012. That decision was that the Tribunal did not have jurisdiction to review a decision of a Delegate of the First Respondent (‘the Delegate’) to refuse to grant the Applicant a Protection (Class XA) Subclass 866 visa.
The Applicant is a citizen of Pakistan. He was born on 1 December 1990 and is now aged 22 years. He arrived in Australia on a passport issued in Pakistan and as the holder of a Vocational Education and Training Sector (Class TU) Subclass 572 visa (‘student visa’) issued on 15 April 2011, and with an expiry date of 20 June 2012. He arrived in Australia on 20 May 2011. He applied for a Protection (Class XA) Subclass 866 visa on 7 February 2012. The Delegate refused the visa on 14 June 2012. Notification of that refusal of the application for a Protection (Class XA) Subclass 866 visa was forwarded by Mr James Watson, Case Manager, Onshore Protection Victoria, Department of Immigration and Citizenship, to Ms Pantelitsa Pavlou at 306/598 St Kilda Road Melbourne in the State of Victoria 3004, Ms Pavlou being authorised by the Applicant to receive correspondence on his behalf.
Ms Pavlou and the Applicant had completed a Form 956, being an Advice by a migration agent/exempt person of providing immigration assistance. That document noted that the Applicant’s migration agent was Ms Pavlou, and that her business or residential address was 306/598 St Kilda Road Melbourne in the State of Victoria 3004. Under the heading “Address for Correspondence” were the words “as above”, and in answer to Question 7, “Do you agree to the Department communicating with you by fax, email or other electronic means,” the Applicant’s registered migration agent had ticked the box “yes” and provided an email address of [email protected]. In answer to paragraph 18, the registered migration agent indicated that she had been appointed as the authorised recipient, and signed the necessary declaration in Part C of the form. The Applicant had signed the necessary declaration as to the appointment of his migration agent in paragraph 24 of Part C of the form.
The Applicant applied to the Tribunal for review of the Delegate’s decision on 14 August 2012. By letter dated 24 August 2012 forwarded to the authorised recipient of the Applicant, the Tribunal provided to the Applicant an invitation to comment on the validity of the application for review. That letter said in part:-
“I am of the view that your application is not a valid application as it was not lodged within the relevant time limit. The time limit is 28 days from the day on which you are taken to have been notified of the primary decision. The primary decision was posted to your authorised recipient on 14 June 2012 and, on the basis that 25 June 2012 was the date on which you are taken to have been notified, the last day for lodging the application for review was 23 July 2012. As the application was not received until 14 August 2012, it appears to be out of time. However, this is a matter which must be determined by a Tribunal Member.”
The Applicant was asked whether he wished to make any comments on whether a valid application had been made, and if so to provide same within 14 days of receiving the invitation. The invitation to comment in the letter of 24 August 2012 was sent to Ms Joey Tran of Sabelberg Morcos Lawyers, who was then acting for the Applicant. The Applicant responded that the Delegate had made a mistake in notifying the authorised recipient of the Applicant’s visa refusal via mail rather than email as requested by the authorised recipient at interview. Accordingly, the Delegate, Mr James Watson, had advised the authorised recipient that he had reset the notification timeframe so that notification of the Delegate’s decision should reflect a new date of 30 July 2012.
The Tribunal Hearing
In its Statement of Decision and Reasons, the Tribunal set out that the Delegate had decided to refuse to grant the visa applied for by the Applicant on 7 February 2012, and that such decision was made on 14 June 2012 and notified to the Applicant, together with his review rights by letter dated 14 June 2012, and posted within three working days of that date. The Tribunal noted that the Applicant applied to the Tribunal on 14 August 2012 for review of the Delegate’s decision. The Tribunal said in its Statement of Decision and Reasons at paragraph 4 that:-
“The question that arises in this case is whether the Tribunal has jurisdiction. Whether it does depends on whether the application lodged on 14 August 2012 is a valid application under s.412 of the [Migration] Act [1958 (Cth)] for review of the delegate’s decision.”
Section 66(1) of the Migration Act 1958 (Cth) (‘the Act’) provides that:-
“(1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.”
Regulation 2.16 of the Migration Regulations 1994 (Cth) (‘the Regulations’) provides that:-
“Notification of decision on visa application
(1) For subsections 66 (1) and 501G (3) of the Act (which deal with giving notice of decisions), this regulation sets out the way of notifying a person of a decision to grant or refuse to grant a visa.
Grant of visa
(2) If the visa is a bridging visa granted at the same time as a substantive visa, the Minister must notify the applicant of the grant of the bridging visa by notifying the applicant of the grant of the substantive visa.
(2A) If the visa:(a) is a special category visa; and
(b) has been granted using an authorised system in accordance with an arrangement made under subsection 495A (1) of the Act;
the Minister must notify the applicant of the grant of the visa by a general notice in immigration clearance.(2B) If the visa:
(a) is a special category visa; and
(b) has not been granted using an authorised system in accordance with an arrangement made under subsection 495A (1) of the Act;
the Minister must notify the applicant of the grant of the visa by an imprint stamped in the applicant's passport by an officer.(2C) If the visa is a Subclass 834 (Permanent Resident of Norfolk Island) visa, the Minister must notify the applicant of the grant of the visa by an imprint stamped in the applicant's passport by an officer.
(2D) If none of subregulations (2) to (2C) applies, the Minister must notify the applicant of the grant of the visa by:(a) telling the applicant orally that the visa has been granted; or
(b) notifying the applicant by one of the methods specified in section 494B of the Act.Note If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.
Refusal to grant visa
(3) The Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act.
Note If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.”Relevantly, I will now here set out s.494A to 494D of the Act being sections considered by the Tribunal and this Court:-
“494A Giving documents by Minister where no requirement to do so by section 494B method
(1) If:
(a) a provision of this Act or the regulations requires or permits the Minister to give a document to a person; and
(b) the provision does not state that the document must be given:
(i) by one of the methods specified in section 494B; or
(ii) by a method prescribed for the purposes of giving documents to a person in immigration detention;
the Minister may give the document to the person by any method that he or she considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section).
Note: Section 494D deals with giving documents to a person’s authorised recipient.
(2) If a person is a minor, the Minister may give a document to an individual who is at least 18 years of age if the Minister reasonably believes that:
(a) the individual has day‑to‑day care and responsibility for the minor; or
(b) the individual works in or for an organisation that has day‑to‑day care and responsibility for the minor and the individual’s duties, whether alone or jointly with another person, involve care and responsibility for the minor.
(3) However, subsection (2) does not apply if subsection 52(3C) (which relates to giving notifications in the case of combined applications) applies in relation to the minor.
(4) If the Minister gives a document to an individual, as mentioned in subsection (2), 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.
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.
(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, e‑mail or other electronic means
(5) Another method consists of the Minister transmitting the document by:
(a) fax; or
(b) e‑mail; or
(c) other electronic means;
to:
(d) the last fax number, e‑mail 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, e‑mail 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.
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).
Giving by hand
(2) If the Minister gives a document to a person by the method in subsection 494B(2) (which involves handing the document to the person), the person is taken to have received the document when it is handed to the person.
Handing to a person at last residential or business address
(3) If the Minister gives a document to a person by the method in subsection 494B(3) (which involves handing the document to another person at a residential or business address), the person is taken to have received the document when it is handed to the other person.
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.
Transmission by fax, e‑mail 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, e‑mail 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.
(6) Subsection (5) applies despite section 14 of the Electronic Transactions Act 1999.
Document not given effectively
(7) If:
(a) the Minister purports to give a document to a person in accordance with a method specified in section 494B (including in a case covered by section 494A) but makes an error in doing so; and
(b) the person nonetheless receives the document or a copy of it;
then the person is taken to have received the document at the times mentioned in this section as if the Minister had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.
494D 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 do things on behalf of the first person that consist of, or include, receiving documents in connection with matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents 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) The first person 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.
(4) The Minister may communicate with the first person by means other than giving a document to the first person, provided the Minister gives the authorised recipient notice of the communication.
(5) The Minister need not comply with subsection (1), or the requirement in subsection (4) to give a notice, 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).”
One of the methods of notification specified in s.494B of the Act (and as referred to above) consists of the Minister for Immigration and Citizenship (‘the Minister’) dispatching the document within three working days of the date of the document by prepaid post or other prepaid means to the last address for service or the last residential or business address provided to the Minister by the recipient for the purpose of receiving documents (s.494B(4) of the Act). If a document is given to a person by this method and the document was dispatched from a place in Australia to an address in Australia, the person is taken to have received the documents seven working days (in the place of the address) after the date of the document (s.494C(4)(a) of the Act). This will be so, even if the document was never, in fact, received. If an applicant has nominated an “authorised recipient” by giving the Minister written notice of the name and address of another person authorised by the applicant to receive documents in connection with matters arising under the Act or the Regulations, the Minister must give the authorised recipient, instead of the applicant, any documents that the Minister would otherwise have given to the applicant (s.494D(1) of the Act). If the Minister gives a document to the authorised recipient the Minister is taken to have given the document to the applicant (s.494D(2) of the Act). However, this does not prevent the Minister giving the applicant a copy of the document.
In its reasons, the Tribunal noted that the Applicant gave the Minister written notice under s.494D of the Act of the name and address of an authorised recipient and that the Decision Notice, dated 14 June 2012, was sent by prepaid post on 14 June 2012 from a place in Australia to the Applicant’s authorised recipient at an address in Australia. The Tribunal then referred to records contained in the Department of Immigration and Citizenship’s Integrated Client Service Environment (‘ICSE’) database which indicated that:-
a)the Applicant’s Protection (Class XA) Subclass 866 application was refused on 14 June 2012;
b)notification of the refusal decision was sent by post on 14 June 2012;
c)a note was made in the ICSE by the Delegate on 30 July 2012 to the effect that the notification had been sent incorrectly, as the Applicant’s then migration agent had requested at the conclusion of the protection visa interview that the decision be notified by email rather than post; and
d)a copy of the Decision was sent on 30 July 2012 by email or facsimile.
The Tribunal accepted that a verbal request was made by the Applicant’s then authorised recipient that the notification of decision should be sent by email rather than post. The Tribunal found that the address for correspondence given by the Applicant’s then authorised recipient in respect of his application for a Protection (Class XA) Subclass 866 visa at question 5 of the Form 956, signed by Ms Pavlou and the Applicant on 3 February 2012, was the authorised recipient’s postal address. The Tribunal found, in the absence of any evidence to indicate that this authority had ceased or been rescinded, that the verbal request to send the notification via email did not cause this to happen and that the postal address remained the address notified for receiving documents. The Tribunal found that the Delegate’s error in sending the notification by a different means from that agreed verbally with the authorised recipient at interview, had no effect on the validity of the notification itself as the Applicant was notified by one of the means specified in s.494B of the Act. Further, that there was no capacity in the legislation for an applicant to nominate a preferred means of notification for s.66(1) and s.494B of the Act. The Tribunal found it had no discretion to consider the Delegate’s subsequent purported notification by email as the Applicant had already been notified in accordance with s.66(1) of the Act.
The Tribunal found that the Applicant was taken to have received the notice on 25 June 2012, being seven working days after the date of the notice. The Tribunal found the Applicant was properly notified of the Delegate’s decision on 25 June 2012. Therefore, the prescribed period of 28 days within which an application for review could be lodged ended on 23 July 2012. That prescribed period was set out under s.412(1)(b) of the Act. As the application for review had not been received by the Tribunal until 14 August 2012, the application for review was not valid and the Tribunal had no jurisdiction in the matter. The Tribunal further went on to say, at paragraph 28 of its reasons:-
“The Tribunal notes that the circumstances that have led to the Tribunal having no jurisdiction may be grounds for considering a request to the Minister to consider exercising his power under s.48B to lift the s.48A bar to allow the applicant to make a further application for a Protection visa. The Tribunal notes that this discretion can only be exercised by the Minister personally and he is not obliged to consider doing so.”
Consideration
The Applicant’s Application was filed in this Court on 30 November 2012. That Application has, as its ground, the following:-
“1. The Tribunal fell into jurisdictional error by determining it lacked jurisdiction to hear the matter.”
An application for an extension of time pursuant to s.477 of the Act was made, the application having not been made within 35 days of the date of the migration decision. The Applicant relies upon Written Submissions filed 7 May 2013, an Affidavit sworn by the Applicant on 3 April 2013 and Affidavits sworn by Ms Pantelitsa Pavlou on 16 May 2013 and 20 May 2013.
Section 477(2) of the Act provides that:-
“(2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.”
The First Respondent opposed granting the Applicant an extension of time under s.477(2) of the Act on the basis that the application was unmeritorious. The merits of the appeal are one of the matters that the Court is to take into account. When looking to the other matters for consideration by the Court, as set out in Parker v The Queen [2002] FCAFC 133 at paragraph 6, and as considered, the Court determines that no prejudice, resultant from the delay, is occasioned to the First Respondent in defending the proceedings and further, that an acceptable explanation for the delay was given to the Court in the oral evidence put before it by the Applicant’s solicitor, Ms Tran. That evidence was that Ms Tran, being wary of the mental health of the Applicant as described to her by his treating psychiatrist, determined not to advise the Applicant of the outcome of the Tribunal hearing until 9 November 2012. This was despite the decision being dated 11 October 2012. The Application filed by the Applicant was some 15 days late. He provided instructions to file the application immediately upon being advised by his solicitor of the outcome of the Tribunal hearing. The Applicant further argued that his financial and medical circumstances at the relevant time were such that it was impossible for him to understand, seek assistance and file the application all within 35 days of the decision.
Additional time was also required to find an Urdu Pashto interpreter who could adequately explain the Tribunal’s decision, grounds and avenues for review and the costs involved. Severe delays in the Translating and Interpreting Service (TIS) National onsite and telephone services for translating and interpreting only added further delays and frustrations to the Applicant’s attempts to seek review of the Tribunal’s decision. In the circumstances of this case as described in this and the preceding paragraph, it is necessary in the interests of the administration of justice to allow the application to proceed and to provide for an extension of time.
The First Respondent in these proceedings relied upon Written Submissions dated 13 May 2013 and an Affidavit of Mr James Watson sworn 13 May 2013. The First Respondent also filed a Court Book which was introduced into evidence in the proceedings.
Both Mr Watson and Ms Pavlou were required for cross-examination in respect of the contents of their respective affidavits. Mr Watson attended at Court and was cross-examined by counsel for the Applicant, but Ms Pavlou did not attend, she claiming to be unable to excuse herself from her commitments on the day of hearing. Her evidence was, thus, not able to be challenged in cross-examination and I take that into account when determining the weight to be given to it. Where her evidence conflicts with that of Mr Watson I have accepted the evidence of Mr Watson.
The evidence of Mr Watson is as follows:-
a)he is a delegate of the First Respondent for the purposes of s.65 of the Act. He was appointed as the Delegate in relation to the application for a Protection (Class XA) Subclass 866 visa lodged by the Applicant in these proceedings on 7 February 2012. He noted on 7 February 2012 that the Applicant lodged a “Form 956 Advice by a migration agent/exempt person of providing immigration assistance” which appointed Ms Pavlou as the Applicant’s representative and authorised recipient in relation to the Protection (Class XA) Subclass 866 visa application. He noted the postal address for correspondence as provided in that document, and the email address for correspondence as provided in that document.
b)on 2 May 2012, he conducted an interview with the Applicant in relation to his protection visa claims in the Department’s offices at Level 31, 50 Lonsdale Street Melbourne. Ms Pavlou attended the interview with the Applicant. At the conclusion of the interview when everyone was packing up, and after the recording of the interview had been switched off, Ms Pavlou said to him words to the following effect:-
I will be overseas for the next few weeks, would you be able to send your decision if it’s made in that time to me by email rather than mail because I won’t be in my office.
To which he responded to the following effect:-
Yes, that shouldn’t be a problem.
Mr Watson’s further evidence was that at no time, either during the interview or at any other stage, did Ms Pavlou indicate to him, either verbally or in writing:-
a)that she was no longer the Applicant’s authorised recipient in relation to the Applicant’s Protection (Class XA) Subclass 866 visa application;
b)that her address for correspondence as stated in the Form 956 lodged on 7 February 2012 had changed; or
c)that he should send a copy of the notification of his decision to the Applicant directly at either his email address or his address for correspondence.
Mr Watson’s further evidence was that following his decision to refuse the grant to the Applicant of a Protection (Class XA) Subclass 866 visa, and after signing the notification letter attached to his decision, he placed same in an envelope addressed to “Pantelitsa Pavlou, 306/598 St Kilda Road, Melbourne, Victoria, 3004”. He did this on 15 June 2012. He did not send the notification letter to Ms Pavlou by email on 15 June 2012 as she had requested at the end of the interview on 2 May 2012 because he forgot that she had made such request.
Ms Pavlou’s evidence was that she did, at the conclusion of the interview conducted by Mr James Watson on 2 May 2012, make an oral request to him to provide her with his decision by email as she would be overseas for three months. Her evidence was further that for additional certainty she also asked Mr Watson to email a copy to the Applicant. Ms Pavlou’s evidence is that she expressed the request to Mr Watson on 2 May 2012, not as a matter of “preferred delivery method” but rather because she was certain that if his decision was posted to her whilst she was overseas she would not receive it until she returned from overseas in August. She had arranged with Australia Post on or about 8 May 2012 to place all her mail on hold until such time as she returned from her overseas trip. Mr Watson’s notification correspondence was physically held with Australia Post when it arrived and did not reach her address until after 8 August 2012. When Ms Pavlou heard from the Applicant that his application was refused on 14 June 2012, Ms Pavlou immediately contacted the Department’s team leader, and in response an email was forwarded by Mr Watson to her on 30 July 2012 apologising for his error and notifying her that he had reset the notification time on the Department’s system to allow the Applicant to lodge a review application within the permitted time. Mr Watson then sent Ms Pavlou a further email on 31 July 2012 notifying her that the Department’s decision notification date had been reset to 30 July 2012 and that the Applicant’s bridging visa was extended to 27 August 2012. He reiterated that the changes would give her enough time to lodge a review and he again apologised for his error. Ms Pavlou returned to Australia on 6 August 2012 and made contact with the Applicant on 7 August 2012. She ceased to act for him on 9 August 2012. His subsequent legal representatives lodged a Refugee Review Tribunal application on his behalf.
The Applicant’s submissions essentially assert that the Applicant had withdrawn the address for correspondence provided by his authorised recipient and migration agent, Ms Pavlou, and being 306/598 St Kilda Road Melbourne Victoria 3004, and had in its place substituted her email address in a verbal discussion had with Mr Watson. The Applicant argued that the verbal request to send the notification via email formed the last address for service provided to the Minister by the Applicant and that the correct means of service by the Minister to the Applicant was by email and not to the postal address provided on the form.
Ms Pavlou did request of the Delegate, Mr Watson, and on 2 May 2012 that his notification decision be sent to her at her email address. She did not, however, withdraw her postal address as an address for service either in writing or orally. Accordingly, it was open for the Delegate to give her his decision by means of the method in s. 494B(4) of the Act and that was by posting it to her address for correspondence. The fact that the Delegate could have emailed her the decision pursuant to s.494B(5) of the Act did not mean that he could not, instead, make use of the method in s.494B(4) of the Act.
The First Respondent accepts that it is unfortunate that the Delegate did not email his decision to Ms Pavlou until 30 July 2012 and notes further that the Delegate was under the mistaken impression that in doing so at that time he “reset the notification time frame”. That correspondence did not do so and nor could the Delegate’s email correspondence alter the legal consequence of the earlier notification by the method provided for in s.494B(4) of the Act. The notification provisions in ss. 494A to 494D of the Act reflect a legislative intention to achieve administrative certainty even if they can operate in a harsh way in an individual case (Vean of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs(2003) 204 ALR 80; Tay v Minister for Immigration and Citizenship[2010] FCAFC 23).
As the Tribunal’s decision concerns the existence of a condition precedent to its jurisdiction, it is open to re-examination before this Court. The Minister, accordingly, filed evidence not before the Tribunal concerning the conversation between the Delegate and Ms Pavlou on 2 May 2012 and the posting of the Delegate’s decision within three days of its date as required by s.494B(4)(a) of the Act. That evidence confirms that Ms Pavlou did not withdraw her postal address for receiving correspondence and that the Delegate’s decision was sent to her in accordance with s.494B(4) of the Act.
No jurisdictional error by the Tribunal has been shown on the evidence before the Court. The Tribunal correctly held that it did not have jurisdiction to review the Delegate’s decision in this case.
Accordingly, the application will be dismissed with costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 28 June 2013
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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