Nassouh v Minister for Immigration
[2016] FCCA 2779
•27 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NASSOUH V MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2779 |
| Catchwords: MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision is affected by jurisdictional error – whether the applicant was notified of a decision of a delegate of the Minister pursuant to s.494B of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.66,494B, 494C Migration Regulations 1994 (Cth), regs.2.16, 4.10 |
| Cases Cited: SZFOV & Ors v Minister for Immigration and Anor [2006] FMCA 1280 |
| Applicant: | HOSSAM NASSOUH |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 789 of 2016 |
| Judgment of: | Judge Emmett |
| Hearing date: | 27 October 2016 |
| Date of Last Submission: | 27October 2016 |
| Delivered at: | Sydney |
| Delivered on: | 27 October 2016 |
REPRESENTATION
| The Applicant appeared in person with an Arabic interpreter. |
| Counsel for the Respondents: | Mr Martin Smith |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 789 of 2016
| HOSSAM NASSOUH |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
On 5 April 2016, the applicant filed an application seeking judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 9 March 2016, in which the Tribunal determined that it did not have jurisdiction to review a decision by a delegate of the first respondent (“the Delegate”) which refused the applicant a visa on 22 April 2015.
Pursuant to s.66 of the Migration Act 1958 (Cth) (“the Act”), when the Minister grants or refuses to grant a visa, the Minister must notify the applicant of the decision in the prescribed way. Relevantly, s.66 of the Act is as follows:
“Notification of decision
(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(3) of the Migration Regulations 1994 (Cth) (“the Regulations”) prescribes that the Minister notify an applicant of a refusal to grant a visa by one of the methods specified in s.494B of the Act.
Where the Minister validly gives a document to an applicant by the method identified in s.494B(4) of the Act, the document is taken to have been received by the applicant seven working days after the date of the document pursuant to s.494C(4) of the Act. If the notification to refuse a visa was validly given to the applicant, then the notification letter dated 22 April 2015 would be taken to have been received by the applicant on 1 May 2015. From that time, the applicant had 21 days in which to seek review of that decision by the Delegate with the Tribunal in accordance with reg.4.10(1)(a) of the Regulations. That period expired on 22 May 2015.
On 29 September 2015, the applicant lodged an application for review of the Delegate’s decision with the Tribunal. That application for review was plainly lodged in excess of the mandatory 21-day time limit.
The Tribunal concluded that the application for review by it of the Delegate’s decision was not made in accordance with the relevant legislation and that it had no jurisdiction in the matter.
The issue before this Court is whether or not that decision of the Tribunal is legally correct.
The applicant was unrepresented before the Court this afternoon, although had the assistance of an interpreter.
At the outset of the hearing, I explained to the applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.
I referred the applicant to his appearance before a Registrar of this Court on 19 May 2016, on which occasion he was given leave to file and serve an Amended Application, any further evidence and submissions in support of his application. On that occasion, the applicant was also provided with the contact details of legal services providers and translating and interpreting services in documents headed in his own language.
On 21 October 2016, the applicant filed an Outline of Submissions which essentially asserted that he had not received notification of the Delegate’s decision.
The applicant confirmed that he had not filed any other documents either in accordance with the directions made on 19 May 2016 or otherwise, and that he had no other documents to provide to the Court this afternoon in support of his application.
Due to the technical nature of the issue before this Court, I explored with the applicant whether it would be of greater assistance to him to hear the submissions from counsel for the first respondent, Mr Martin Smith, prior to being invited to make submissions in support of his application. I explained that Mr Smith’s submissions may assist him in understanding why the first respondent was opposing his application for relief by this Court. The applicant agreed to that course of action and accordingly, Mr Smith was invited to make submissions on behalf of the first respondent.
Mr Smith took the Court thoroughly through the history of this matter, including taking the Court to the applications made by the applicant and his wife (“the Sponsor”) for a combined subclass 309/subclass 100 visa for the applicant. The subclass 309 Partner (Provisional) visa is a temporary visa which must be obtained before a subclass 100 (Permanent Partner) visa can be obtained.
The applicant lodged two temporary partner visa applications. In each, the applicant stated an address in Lebanon as his current residential address and his address for correspondence. The first application was dated 16 November 2009 and received by the Department of Immigration and Border Protection (“the Department”) on 8 April 2010. The Sponsor’s application for the applicant to migrate to Australia was dated 1 December 2009. The Sponsor’s application identified Mr Toufic Laba Sarkis as an authorised recipient, and authorised Mr Laba Sarkis to receive written communication for her application in respect of all matters.
On 19 October 2010, the second temporary partner visa application was lodged by the applicant in similar terms to his first visa application, again providing the same address in Lebanon for correspondence and confirming that all communication was to be with him. There is no explanation as to why this further application was filed, however I am satisfied that nothing turns on that fact.
On 17 November 2010, a further application was lodged by the Sponsor, again identifying Mr Toufic Laba Sarkis as the authorised recipient of correspondence with the Sponsor. The Sponsor’s residential address was given as 13 Pelman Avenue, Greenacre, New South Wales (“the Pelman Avenue Address”).
A bundle of documents, identified as the Court Book and filed on 2 June 2016, was tendered by counsel for the first respondent and marked ‘Exhibit 1R’. Exhibit 1R contained copies of the applications and contained various communications between the Department and Mr Laba Sarkis, originating on or about 2 September 2010.
On 27 June 2011, the temporary partner visa was granted to the applicant. The applicant then arrived in Australia on 13 July 2011.
On 20 December 2013, Mr Laba Sarkis wrote to the Department attaching two Statutory Declarations made by the applicant and the Sponsor, including a Statutory Declaration by the applicant identifying his address in Australia as the Pelman Avenue Address, being the same residential address as the Sponsor. His letter was in the following terms:
“Dear Officer
I was the authorised recipient for the applicant when his visa was granted in 2011.
The applicant and his wife asked me to email you regarding his permanent residence.
The Couple wish to inform that have lived and continue to live at 13 Pelman Avenue, Greenacre NSW 2190 and asked me to submit the attached statutory application by the sponsor and applicant and appreciate a reply as to any further information required.”
(Errors in Original).
On 12 March 2014, the Department wrote to the applicant at the Pelman Avenue Address, requesting further information including a police check. On 30 April 2014, a police check was sent to the Department by Mr Laba Sarkis, stating no more than “Please find attached National Police Certificate”.
On 2 May 2014, the Department wrote to Mr Laba Sarkis in the following terms:
“Dear Mr Sarkis
Thank you for your e-mail.
Unfortunately our onshore systems do not have you authorised to act in this capacity for this client. If you have been appointed by the client as Authorised agent, you need to advise the department in writing. If you previously advised the overseas embassy at the first stage of processing either on the application form or by letter, then we can hold the application and recall the file from overseas. You could however provide a new letter from the applicant to authorise you to act on their behalf. The Department also has a Form 956A Appointment or withdrawal of Authorised Recipient which you can also use for this purpose. The form is available from our website at >
On 7 January 2015, the Department wrote again to the applicant at the Pelman Avenue Address, inviting him to comment on adverse information received.
On 19 January 2015, the applicant responded to that letter in a letter identifying his address as the Pelman Avenue Address. That letter attached various Statutory Declarations and other documents in support of the applicant’s permanent partner visa application. In that letter, the applicant confirmed that he continued to live together with his wife in Australia and that the address provided by the Sponsor had never been different to the Pelman Avenue Address.
On 28 January 2015, the Department again wrote to the applicant at the Pelman Avenue Address, requesting further information for his permanent partner visa application, including a National Police Certificate. On 13 March 2015, the National Police Certificate was sent to the Department by Mr Laba Sarkis under the following cover:
“The applicant has asked me to send you this National Police Certificate.”
Thereafter, on 22 April 2015, the Department sent a copy of its decision refusing the applicant’s permanent partner visa application dated 8 April 2010. The letter was sent to the applicant at the Pelman Avenue Address.
Section 494B(4) of the Act is 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.”
Compliance with s.494B(4) of the Act has three relevant requirements: (1) that notification of the Minister’s decision be sent within three working days; (2) that it be sent by prepaid post; and, (3) that it be sent to the last address for service provided to the Minister by the recipient for the purpose of receiving documents, or the last residential or business address provided to the Minister by the recipient for the purpose of receiving documents.
Both applications lodged by the applicant with the Department stated that the Department was to communicate with the applicant. The last letter from the applicant dated 19 January 2015 to the Department had on it the Pelman Avenue Address, as did the Statutory Declaration signed by the applicant, sent by Mr Laba Sarkis via email on 20 December 2013.
As referred to above, Mr Laba Sarkis had been invited to lodge an appointment as authorised recipient on 2 May 2014. No such document or form was ever lodged by Mr Laba Sarkis. He did no more than forward to the Department a National Police Certificate in respect of the applicant. There was no other document provided by the applicant to the Department, identifying any address other than the Pelman Avenue Address as his address for correspondence in Australia. There was no other document lodged either by Mr Laba Sarkis or the applicant to suggest that the applicant’s address for correspondence was other than the Pelman Avenue Address. The most recent correspondence received from the applicant was the letter dated 19 January 2015 which, as stated above, had the Pelman Avenue Address on it.
The applicant in submissions this afternoon referred to various references throughout Exhibit 1R to Mr Laba Sarkis, identifying him as an authorised recipient. However, those authorisations were confined to applications lodged by the Sponsor, not the applicant. In the circumstances, the last address for service provided to the Minister by the applicant for the purpose of receiving documents, or the last residential address provided to the Minister by the applicant for the purposes of receiving documents, was the Pelman Avenue Address.
In relation to compliance with ss.494B(4)(a) and (b) of the Act, the first respondent read two affidavits. The first affidavit was an affidavit of Alannah Lucchese affirmed on 14 July 2016. The second affidavit was an affidavit of Robyn Elizabeth Scerri affirmed on 20 October 2016. Those affidavits annexed documents, which I accept as evidence, showing that the notification letter sent by the Department was sent via prepaid post within three working days of the date of the document, being 22 April 2015. I further accept that the notification letter was sent to the applicant in accordance with s.494B(4)(c) of the Act.
The applicant handed to the Court a copy of a decision SZFOV & Ors v Minister for Immigration and Anor [2006] FMCA 1280 which addressed the exercise of discretion where an applicant had not received an invitation to a tribunal hearing and the tribunal had determined to proceed in the absence of the applicant to make its decision. The applicant made no particular submission in respect of the relevance of that case, and none is apparent to me.
In its decision record, the Tribunal referred to s.66 of the Act and the requirements thereto to which I have referred above. The Tribunal also referred to the Sponsor’s appointment of Mr Laba Sarkis as her authorised recipient. The Tribunal referred to the applicant’s two application forms and noted that they indicated that the applicant wished to have all written communication sent to himself. The Tribunal noted the email sent by Mr Laba Sarkis to the Department on 20 December 2013, which is referred to above.
The Tribunal noted that the applicant had travelled to Australia on the temporary partner visa that he was granted on 27 June 2011. The Tribunal referred to the Department’s letter dated 2 May 2014 to Mr Laba Sarkis, informing him that he was not authorised to act onshore for the applicant without obtaining written authorisation from the applicant to act on his behalf. The Tribunal noted that no such authorisation was forthcoming from the applicant.
The Tribunal further referred to a file note dated 23 April 2014, suggesting that the applicant had a telephone conversation with an officer of the Department, in which he confirmed that his address was the Pelman Avenue Address.
The Tribunal noted that on 19 January 2015, the applicant responded to the Department’s invitation to comment on information in a letter which stated his address as the Pelman Avenue Address. The Tribunal also noted that on 1 June 2015, the applicant sent to the Department confirmation via email that his contact details had not changed.
The Tribunal found that the last residential address provided to the Minister by the applicant for the purposes of receiving documents was the Pelman Avenue Address, and that notification of the Delegate’s decision had occurred in accordance with s.494B of the Act.
The Tribunal found that in accordance with s.494C of the Act, the applicant was taken to have been notified of the Delegate’s decision on 1 May 2015, and that the prescribed period within which a review application must be made ended on 22 May 2015. As stated above, the Tribunal found that, as the application for review was not lodged with the Tribunal until 29 September 2015, the application for review was not made in accordance with the relevant legislation. Therefore, the Tribunal found that it had no jurisdiction in the matter.
Those findings and conclusions were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal applied the correct law to its factual findings. In those circumstances, the Tribunal’s determination that it had no jurisdiction was without error.
Accordingly, the proceeding before this Court, commenced by way of application filed on 5 April 2016 should be dismissed with costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 7 November 2016
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