Parata v Minister for Home Affairs
[2020] FCCA 1582
•17 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PARATA v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 1582 |
| Catchwords: MIGRATION – Application for judicial review – Notice of Decision – last known address – decision Notice emailed to corrections centre email address – writs issued. |
| Legislation: Bankruptcy Regulations 1996 (Cth), reg.16.01 Migration Act 1958 (Cth), ss.66, 116, 127(2), 347, 412(1)(a), and 501 Migration Legislation Amendment Act (No. 1) 1998 |
| Cases cited: DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 Yu v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 912 |
| Applicant: | KARL WILLIAM PARATA |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 23 of 2019 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 6 May 2020 |
| Date of Last Submission: | 22 May 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 17 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Guo |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr Tran |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
THE COURT DECLARES THAT:
The Applicant has not been notified under s.127 of the Migration Act 1958 (Cth) of the decision of a delegate of the Minister made 20 September 2018.
THE COURT ORDERS THAT:
A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 12 November 2018.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine the application for review according to law.
The First Respondent pay the Applicant’s costs fixed in the sum of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 23 of 2019
| KARL WILLIAM PARATA |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant came to Australia in 1993 when he was 7 years of age. He remained on a Special Category Visa, never obtaining residency or citizenship.
Following incidents involving his ex-partner, on 10 September 2018, a delegate of the Minister gave notice to the applicant of an intention to consider cancelling his visa under s.116 of the Migration Act1958 (Cth) (‘the Act’). The Notice was sent by email to the Melbourne Assessment Prison (at [email protected]) where the applicant was on remand. The applicant responded in a document dated 13 September, which was sent by fax on 17 September 2018, arguing that the visa should not be cancelled: see Court Book (‘CB’) pp.43 to 44. The delegate cancelled his visa on 20 September 2018.
Notice of the cancelation of the visa was also emailed to the Melbourne Assessment Prison (at the same email address above) requesting that:
‘… the attached Notification of Cancellation under section 116 and Decision record section 116 be delivered to the above named prisoner who I understand is remanded at your correctional centre.
Can I also request the prisoner sign and date the attached Acknowledgement receipt and for you to return this via scan/email or fax (03) 9235 3661.
The applicant signed an acknowledgement of receipt of the documents on 21 September 2018: see CB p.59.
On 1 October 2018, the applicant faxed a letter to the Administrative Appeals Tribunal (‘the Tribunal’) seeking a merits review of the decision. That fax was sent at 9.52am on that date. After the close of business that day (at 5.07pm) the Tribunal sent an email to the email address [email protected] with the following correspondence:
Good afternoon
We have received correspondence via fax from the Marngoneet Correctional Centre this morning which was a letter seeking review of a decision made by the Department of Home Affairs. The letter was from Karl William Parata. If Mr Parata wishes to apply for review with the Administrative Appeals Tribunal he will be required to complete and submit the attached M1 Application for review form.
The attached M10 Migration review process and MR15 Information for migration review factsheets contain further information on the review process.
Can you please provide Mr Parata with the attached forms should [he] wish to lodge a review. Mr Parata should be advised that the AAT operate under strict timeframes for lodgement of applications and we do not have any power to extend the timeframes.
If you have any questions or clarification of the above please contact me on the details listed below.
Kind regards,
The following day an officer from the Operations Directorate of Corrections Victoria emailed the Tribunal advising that the applicant was then at Port Philip Prison and that the email had been forwarded to that prison.
On 5 October 2018 the applicant returned the completed forms and a ‘request for fee reduction’ form together with an authority to charge his mother’s credit card $100.00 (the amount he said that the Prisoner Legal Help program told him he would have to pay). The advice given to the applicant about the fee would have been correct had the cancellation been a character cancellation under s.501 of the Act (the most common process), however, as this cancellation was under s.116(1)(e) the fee, even if a reduced fee was approved, was far greater. The covering information in the application stated (at CB p.80):
What will it cost to apply for review?
An application fee of $1764 is payable in all cases except when applying for review of a bridging visa decision (including any related decision to require a security bond) that resulted in a person being placed in immigration detention.
We will refund 50% of the application fee if a favourable decision is made on your case. If you withdraw your application, we can only refund your application fee in very limited circumstances.
The fee may be reduced by 50% (or 50% will be refunded if the full fee has been paid) if we are satisfied that payment of the fee has caused, or is likely to cause, severe financial hardship to the review applicant. Form M11 Request for Fee Reduction is available from any registry or from our website. Supporting documentary evidence is required for all fee reduction applications.
Where a fee is payable, either the full application fee must be paid or 50% of the application fee must be paid and a fee reduction application lodged with us before the deadline for lodging the application for review.
The advice that the applicant says he received about the fee amount was incorrect and the amount that he offered to pay (by way of a charge on his mother’s credit card) was insufficient to even meet the reduced fee (if a reduction were to be granted).
The Tribunal proceeded on the basis that the applicant received notice of the delegate’s determination on 21 September 2018, relying upon his signed acknowledgement: see paragraph [3] of Tribunal’s decision. As a result, the Tribunal found that the last day for making an application to the Tribunal was 2 October 2018. The Tribunal accepted that the request for review made by the applicant on 1 October 2018 was an application for review, despite not being on the approved form. However, given that the applicant had not paid the prescribed fee, nor made application for a fee reduction at any time, the Tribunal concluded that:
8. The Tribunal has noted that the applicant has been in custody throughout this process, and the information in relation to the correct form for the application for review, and the timeframe within which the application fee was required to be provided may not have been accessible to the applicant within the prescribed time frame. The Tribunal has also noted there was some delay in first locating the applicant and then being able to correspond with the applicant in relation to providing him with the correct information. The Tribunal has noted the difficulties faced by people in custody in dealing with the process of applying for review.
9. However the application fee was required to be provided within the prescribed time. There has been no payment of fee received by the Tribunal by 2 October 2018. There has not been an application for reduction of the prescribed fee, by 2 October 2018.
10. The prescribed fee has not been paid. In these circumstances, the application for review is not a valid application and the Tribunal has no jurisdiction in this matter.
Grounds for Judicial Review
The applicant sets out three grounds for review, but pursued only the first two grounds. Those grounds argue two points:
a)That there was no valid notification of the primary decision to the applicant and therefore time had not commenced to run for the review application; and
b)That payment of the application fee within the time prescribed for making the application is not a requirement for a valid application.
Ground One
The applicant argues that the Notification did not comply with the requirements of s.127(2)(b) or (c) of the Act. The section provides:
127 Notification of decision
(1) When the Minister decides to cancel a visa, he or she is to notify the visa holder of the decision in the prescribed way.
(2) Notification of a decision to cancel a visa must:
(a) specify the ground for the cancellation; and
(b) state whether the decision is reviewable under Part 5 or 7; and
(c) if the former visa holder has a right to have the decision reviewed under Part 5 or 7—state:
(i) that the decision can be reviewed; and
(ii) the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made.
(3) Failure to give notification of a decision does not affect the validity of the decision.
Effect of section 127(2)(b)
The covering letter sent to the applicant, enclosing the decision, states (at CB p.49):
You may make an application for merits review of this cancellation decision with the Administrative Appeals Tribunal (AAT).
The wording used does not identify which Part of the Act provides for review of the decision. Some history of the provisions explains the nuance of the arguments.
Section 127(2)(b) initially required the Notice to ‘state if the decision is reviewable under Part 5 or 7’. It was amended in 1998 (by the Migration Legislation Amendment Act (No. 1) 1998) to change the word ‘if’ to the word ‘whether’. Rather unhelpfully, the explanatory memorandum merely restates the provision (as is unfortunately not unusual) saying:
165. This item amends paragraph 127(2)(b) to correct an ambiguity - it will ensure that notification of a decision to cancel a visa (under Subdivision E of Division 3) states whether a decision is reviewable under Part 5 or 7 rather than if it is reviewable’ (emphasis as in original).
Obviously the difference in grammatical effect between ‘if’ and ‘whether’ was viewed as significant to Parliament when enacting the amendment. The nuanced difference (commonly overlooked in everyday language) is that the word ‘if’ simply requires consideration of the fulfilment of the following clause: Is the decision reviewable under either Part 5 or Part 7? The use of ‘whether’ demands a selection from the following list: under which Part (5 or 7) can the decision be reviewed? For example, in the Oxford English Dictionary, the following phrases indicate a similar use:
a1616 W. Shakespeare King John (1623) i. i. 134 Whether hadst thou rather be a Faulconbridge,..Or the reputed sonne of Cordelion?
1713 G. Berkeley Three Dialogues Hylas & Philonous i. 5 Whether does Doubting consist in embracing the Affirmative or Negative Side of a Question?
a1822 P. B. Shelley Ion in Prose Wks. (1888) II. 115 Whether do you demonstrate these things better in Homer or Hesiod?
An example phrase from the definition of ‘if’ shows the differing meaning: ‘1608 W. Shakespeare xxiv. 258 “If that her breath will mist or staine the stone, Why then she liues.”’
A precise approach to the provision is required, as it is part of a scheme that provides very strict time limits. For example, in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 (‘DFQ17’) the Full Court considered a similar difficulty that arises under s.66 of the Act. Perram J said:
57. Regardless of which of these three definitions most comfortably fits the language of s 66(2), they all have a flavour of precision, formality or definitiveness. Those meanings are consonant, so it seems to me, with the observations made by Allsop J in Zhan as to how the scheme of the Act operates in relation to time limits. The regime creates a strict review system but requires certain critical information to be provided to an applicant. That scheme would be undermined were the information provided under s 66(2) either less than complete or less than clear.
58. I conclude that when s 66(2) uses the word ‘state’ it means that the notification must set out the information in each of the subsections in a way which is not only complete (as Zhan holds) but clear as well. This required the letter of 3 February 2017 annexed below clearly to convey to the Appellant that the period in which she could seek review ended on 13 March 2017.
The first respondent referred to the first instance decision of Yu v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 912 (‘Yu’s Case’) which is against the argument of the applicant. However, Yu’s Case provides the most limited reasoning and the outcome does not appear to accord with the reasoning in DFQ17 or Zhan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 327. Importantly, just as CGJ16 v Minister for Immigration and Border Protection [2018] FCA 1437 was distinguished in DFQ17 in which the argument with respect to the effect of the word ‘state’ was not put, it does not appear that the argument was put in Yu’s Case. Finally, unlike the other authorities, DFQ16 is a binding decision of the Full Court.
When considering the provision from a purposive perspective, one notes that the history of the two Parts of the Act (Parts 5 and 7) shows that at times there were different Tribunals established to hear reviews under each of the parts. Other character cancellation decisions (those under s.501 and following) are only reviewable under Part 9 of the Act, although also to the AAT. This explains the need for the Notice to state which of the Parts provides for reviews. Whilst there is now only one reviewing Tribunal, the time periods differ significantly from 7 days to 28 days: see Migration Regulations 1994 (Cth), reg.4.10(1)(b) and reg.4.31(2). The Act also contemplates that the forms may differ: see ss.347(1)(a) and 412(1)(a). The fees for reviews of Part 9 decisions are significantly lower (with the reduced fee for this category of decision being only $100). As set out above, the applicant received advice that the reduced fee would be $100, no doubt based upon an incorrect assumption that the decision was made under Part 9 of the Act.
Importantly, the two Parts of the Act, whilst similar, are not identical. It is not the case that the identification of which of Part 5 or 7 applies is irrelevant information (cf SZOFE v Minister for Immigration and Citizenship [2010] FCAFC 79 where the Notice failed to state all of the places where a review could be lodged, omitting a place irrelevant to the particular applicant).
The Notice failed to comply with s.127(2)(b) because it did not set out which Part of the Act provided for review of the particular decision. The distinction was of significant importance to Parliament to the extent that the section was amended to ensure the Part was identified in the Notice. The additional information is also important for practical reasons relating to time limits and fees for application for review. In light of DFQ17 and Zhan’s Case I am persuaded that the Notice was therefore invalid.
In these circumstances the applicant has not been notified in accordance with the section and therefore the time limit for review has not yet commenced to run.
Section 127(2)(c)(ii)
The applicant argues that s.127(2)(c)(ii) has been breached, as the letter did not state clearly when the time limit expired. The relevant parts of the letter said:
An application for merits review of this decision must be given to the AAT within the prescribed timeframe.
The prescribed timeframe commences when you are taken to have received this letter and ends at the end of seven (7) working days after the day on which you are taken to have received this letter.
As this letter was sent to you by Email, you are taken to have received this letter at the end of the day it was transmitted.
The information is quite clear on its face (unlike the way that the information was presented in the matter of DFQ17). The applicant argues that the letter should not be taken to be sent to the applicant by email (as it claims) and that in those circumstances the time limit expressed in the letter is misleading.
If the letter was delivered by hand then the time limit expired on 2 October 2018, as the Tribunal found, in accordance with reg.2.55(5).
Whist the Notice was purportedly sent by email, the Tribunal accepted that the informal application was received within time, relying upon personal delivery of the Notice. Regulation 2.55(9) provides for this situation, as it says:
(9) If:
(a) the Minister purports to give a document to a person by a method specified in this regulation but makes an error in doing so; and
(b) the person nonetheless receives the document or a copy of the document;
the Minister is taken to have given the document to the person and the person is taken to have received the document:
(c) at the time specified by this regulation for that method; or
(d) if the person can show that he or she received the document at a later time—at that later time.
The unusual factual circumstances in this case did not lead to any practical loss by the applicant. I am not persuaded that a Notice actually received by the applicant can be seen as defective because the delegate attempted to give it by one method and it was received by another method. The purpose of the provision is to provide notice and that has occurred.
Nevertheless, in this situation the time limit set out in the body of the letter was incorrect as it relied upon Notice by email under reg.2.55(8), rather than the date of receipt of the Notice, to define when time started to run. I am not persuaded that the Notice is invalid for this reason. The statement of the time period is sufficiently clear for the method by which notice was purportedly given. The effect of reg.2.55(9) is to overcome any technical error in the method of giving notice. In this case the situation is entirely academic, as the applicant lodged an application within the relevant time limit.
Whether the Minister can use an email address is governed by reg.2.55(3)(d), which permits the use of the email address last known to the Minister. A similar provision appears in the Bankruptcy Regulations 1996 (Cth) (at reg.16.01), referring to the ‘last-known address of the person’. In Drake v Stanton [1999] FCA 1635 Tamberlin J concluded that a similar provision in the Bankruptcy Regulations referred to, ‘that address which has been made known by the applicant as at the time closest to the date in question’: see paragraph [8].
The limited evidence in this case is that the applicant responded to a letter sent to him at the email address [email protected] when given notice of intention to consider cancelling the visa. The applicant’s response did not set out an alternative address for contacting him and he was then in custody. I am not persuaded that the use of this email address by the Minister was not open in the circumstances of this case. This email address must be considered the last one known to the Minister at the time of sending the delegates decision given that:
a)The Minister was aware that the applicant was now held in custody;
b)The applicant had responded to material sent to this address without giving an alternative address;
c)Generally access to methods of communication is limited for persons in custody; and
d)If the legislature intended that the documents would be served personally they would have required that, just as the courts require personal service for initiating applications.
I am not persuaded that the applicant has shown a failure to send the Notice to the last email address known to the Minister.
Whether it is legally reasonable to use email service to a corrections email for a prisoner is a difficult question. It seems likely that there would inevitably be a delay before a prisoner received the email, effectively shortening the time limit, as occurred in this matter. The Tribunal was wise to rely on personal delivery, rather than email. Had the Tribunal not relied upon personal delivery, I would have been inclined to find that use of email service was legally unreasonable when serving a prisoner via a justice department email address, where the time limit was only 7 days.
Ground Two
The applicant argues that the failure to pay the fee for review does not result in an invalid application for review. Section 347(1) relevantly provides:
(1) An application for review of a Part 5-reviewable decision must:
(a) be made in the approved form; and
(b) be given to the Tribunal within the prescribed period, being a period ending not later than:
…
(iii) if the Part 5-reviewable decision is covered by subsection 338(9)—the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision; and
(c) be accompanied by the prescribed fee (if any).
In this case the application was not accompanied by the prescribed fee (whether the fee waiver was granted or not). Section 347 sets out the requirements for an application and it was not met by the applicant. The argument that the application is valid despite not being accompanied by the prescribed fee cannot be accepted having regard to the relevant authorities: Benissa v Minister for Immigration and Border Protection [2016] FCA 76 per Edelman J and Dahi v Minister for Home Affairs [2019] FCA 784 per Davies J.
Whilst a fee waiver application may justify not paying a fee until the waiver is decided, it seems unlikely it would justify failing to pay the reduced fee with the application (as there is no full waiver available here): see Grey v Minister for Immigration & Anor [2018] FCCA 1564.
Conclusion
As I have found for the applicant with respect to the first limb of Ground One, I allow the application and make orders quashing the Tribunal’s decision and a declaration that the applicant has not been validly notified under s.127 of the Act.
Costs should ordinarily follow the event and therefore I make orders for costs at the scale amount to avoid the costs of a further appearance. Should a party seek an alternative costs order they may make application to vary this order.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 17 June 2020
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