Patel v Minister for Immigration
[2011] FMCA 223
•7 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PATEL v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 223 |
| MIGRATION – Application for judicial review of Migration Review Tribunal decision – Tribunal held application out of time – whether there was a second notification – whether there can be two notifications – consideration of allegedly conflicting Full Federal Court decisions – alleged estoppel against Minister – whether estoppel can apply. |
| Migration Act 1958, s.347 |
| H v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 153 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Singh v Minister for Immigration and Citizenship [2010] FMCA 305 |
| Applicant: | BHAVINKUMAR ARVINDBHAI PATEL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1408 of 2010 |
| Judgment of: | Burchardt FM |
| Hearing date: | 23 February 2011 |
| Date of Last Submission: | 4 March 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 7 April 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms S. Burchell |
| Solicitors for the Applicant: | Da Gama Pereira & Associates Pty Ltd |
| Counsel for the First Respondent: | Ms E. Latif |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,865.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1408 of 2010
| BHAVINKUMAR ARVINDBHAI PATEL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of the decision of the Migration Review Tribunal (“the Tribunal”) dated 16 September 2010. As the first respondent’s contentions of fact and law correctly state:
“The Tribunal found it did not have jurisdiction to determine an application for merits review because the application was not made within the time prescribed by s.347 of the Migration Act 1958.”
The applicant raises by his amended application essentially two grounds of review. The first ground is that the Tribunal failed to decide, as it is submitted it should have decided, whether a purported notification by the Department to the applicant on 10 June 2010 operated so as to extend the time for application. The second ground is that the first respondent is estopped from denying the efficacy of the 10 June 2010 notice.
For the reasons that follow, I do not think that either ground is made out and the application must be dismissed.
The facts
The facts in this matter are not controversial and what follows is an amalgam of the matters in the court book (including the Tribunal’s decision) and the written submissions filed by the parties.
The applicant was born on 12 June 1987 and is a male citizen of India. He arrived in Australia on 30 April 2007 on a student visa. He held a number of student visas from time to time. On 10 March 2010 the applicant lodged an application for a further student visa (subclass 572).
On 24 March 2010, the Department sent a copy of its notice of refusal of application for a student visa by registered post to the applicant’s home address. The notice was not received by the applicant and was returned to the Department unclaimed, stamped 13 April 2010.
On 10 June 2010, the applicant attended the Melbourne office of the Department and was “handed a notification letter dated 10 June 2010”, according to the applicant’s affidavit at paragraph 12. The letter at CB49-52 is identical to the earlier decision sent to the applicant in March (but not received because it was returned unclaimed), save that the 10 June letter bore the date 10 June 2010, was stamped “copy” and was not signed.
On 21 June 2010 the applicant applied to the Tribunal for merits review. On 24 June 2010 the Tribunal invited the applicant to comment on whether the Tribunal had jurisdiction to consider the application, which was the subject of a response on 29 July 2010.
As earlier indicated, the Tribunal declined the application on the basis that it was outside the statutory timeframe.
It should be noted that the Department’s records do not show any further notification of the notice of decision to the applicant in June 2010, although a case note was entered on the applicant’s file with the Tribunal on 22 June 2010 (Applicant’s SCB85):
“However date on notification letter is 10 June 2010, yet there is no case note to indicate that PRA was re-notified or any reasons why date on notification letter is 3 months to Decision Record.”
Was the application in time?
It is not necessary in the circumstances of this case to set out in any detail the legislative scheme. It is common cause that s.347 of the Migration Act 1958 (“the Act”) requires that the applicant should have made his application within 28 days after notification of the decision. It is also common cause that notwithstanding that the applicant did not receive the documents sent to him on 24 March 2010, that process is sufficient to comply with the Minister’s obligations as to notification.
The real issue of course is whether the 10 June 2010 “notification” was effective to extend the time limit of 28 days. If it was then the application was plainly in time.
Notwithstanding the helpful and detailed submissions made by both advocates, in reality consideration of this question boils down to what is the state of the authorities arising out of three decisions. The relevant portion of the Tribunal’s decision is at paragraph 22 (CB82):
“The Tribunal finds that the applicant was properly notified of the delegate’s decision and is taken to have been notified on 6 April 2010. The judgments in Zhang v MIAC [2007] FCAFC 151 and MIAC v Abdul Manaf [2009] FCA 963 confirm that once a delegate’s decision has been correctly notified, the time to make a valid review application will not start again even if the applicant is given the primary decision again. Therefore, the prescribed period of 21 days within which the application for review could be lodged ended on 27 April 2010.
The application for review was not received by the Tribunal until 21 June 2010, after the prescribed period had expired.”
The applicant’s primary criticism was that the Tribunal failed to consider the Full Court decision of H v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 153. In that case, two notifications were sent. The first was sent to the applicant’s nominated migration agent and the second was sent to the applicant. The Full Court accepted that the appellant’s migration agent received the notification before it was handed (as it was) to the appellant (see H at [7]).
The Full Court at [8] went on to find that the result of the notification to the migration agent, which was effected pursuant to s.53(6) and Regulation 5.02, was effective to discharge the statutory obligation of notification. That, by virtue of the regulations, lead to an extension of time which was sufficient to enable the applicant to file his application for review up until 13 November 2000, in circumstances where the application was actually filed on 8 November 2000. The Full Court went on to say at [9]:
“When the case came on for hearing before the Tribunal, it decided that it could not determine the application, taking the view that it had been commenced out of time. The Tribunal acted on the assumption that the only relevant dates were, first, the day on which the appellant was personally handed notification of the delegate’s decision (26 or 27 October) and, second, the date on which the application for review was lodged (8 November). If these were the relevant dates, the Tribunal correctly declined jurisdiction. But the Tribunal fell into error because it paid no regard to the notification sent to the migration agent. On the basis of this notification, there are two alternative bases for concluding that the application for review was in time. The first is that the notification to the migration agent was the only relevant notification of the decision, so that the application for review could be lodged at any time before 14 November. This approach assumes that once the Minister first notified the appellant of the decision, that exhausted the Minister’s obligation under s.66. If that be correct, any further “notifications” (for example, by personally serving the appellant with a copy of the decision), would not be notifications under the statute and would have no legal consequence. The second basis for holding the application to be within time assumes that the second notification cannot be ignored, and that it brought into operation a second timetable within which the appellant could file a notice of review. In that event the appellant has been given two inconsistent timetables within which to make application for review and, in the absence of any statutory basis for giving one priority over the other, the appellant was entitled to choose the timetable that best suited him. That is what occurred in this case, albeit the appellant did not know he was making a choice.”
The Full Court did not go on to say which of the two alternative bases was to be preferred. That is not surprising because at [10] the Court went on to say:
“The trial judge reached a different conclusion. He was not asked to, and therefore did not, consider the effect of the notification to the migration agent. Indeed, the issue only came up during the course of submissions on the appeal. When it did, counsel for the Minister asked for the matter to be stood down so that she could obtain instructions, after which counsel advised the Court that opposition to the appeal had been withdrawn. Being satisfied that the appeal should be allowed for the reasons we have already expressed, the Court ordered the appeal be allowed and that the matter be returned to the Tribunal for determination.”
Two points may be noted about the decision of the Full Court in H. The first is that the appeal was allowed in effect by consent, and thus the Court did not need to make any finding as to which of the two alternative bases it had identified was to be preferred. The second point is that whichever way one approaches it, it was only the notification to the migration agent which was capable of providing the applicant a successful outcome. He was out of time in respect of the notification made to him personally and the Full Court would have upheld the Tribunal’s decision insofar as it related to that.
The next case to which counsel referred me was that of Zhang v Minister for Immigration and Citizenship (2007) 161 FCR 419. That case turned on somewhat different facts. In Zhang the Tribunal notified the applicant by sending a letter to him together with a copy of the decision on 2 March 2006. The address to which the correspondence was sent was not the applicant’s address and he had provided his new address to the Department on 8 December 2005. On a date, probably 2 March 2006 but uncertain, the Department attempted to send the applicant by email a copy of the letter and the decision but these, as the Department was aware, failed.
On 5 April 2006, the appellant completed an application for review by the Tribunal. Also on 5 April 2006, the appellant’s migration agent sent an email to the delegate inter alia providing the correct email address. In response to a request, the delegate sent the cancellation letter and the decision record on 7 April 2006. In its decision, the Tribunal found that the letter and decision record were correctly notified to the applicant on 2 March 2006 and that the failed email was merely an attempt to provide a copy of the decision notification correctly sent by the post. The Tribunal went on accordingly to find that the application was out of time.
The applicant’s submission on appeal that the delegate chose two methods of notification, the one by email and the other by pre-paid post, was described by the Full Court at [23] as “ambitious”.
That observation should be understood in the context that it was put that the email method was only completed on 7 April 2006 when, at the migration agent’s request, the delegate provided by email the cancellation letter and decision.
The Court then considered H at [24], and quoted the paragraph [9] set out above.
The Full Court went on to say at [25]:
“It is unnecessary to express any view in this appeal on the correctness or otherwise of the second of the two bases mentioned in H 118 FCR 153 and in particular whether there can be two operative and effective notifications made. In the circumstances of this matter two methods of notification were not utilised giving rise to "inconsistent timetables". Even if it was the case that the failed attempt to e-mail the appellant on
2 March 2006 was intended to be a notification under reg 2.55, that form of notification was knowingly abandoned and the pre-paid post method alone was relied upon. The course taken by the migration agent over a month later to obtain an e-mail from the delegate cannot meaningfully be described as involving continuation of the process of notification by e-mail begun on
2 March 2006. There was by then no such process to continue. Notification had long since been effected. The appellant had attempted to act on it but was too late. At best all that can be said of the e-mail sent to the migration agent and the appellant was that, to use its own words, it provided them, by way of an attachment, with "the cancellation letter and decision record as requested". It was not purporting to be a reg 2.55 notification. Unlike H’s case, the present was not one in which two methods of notification were utilised.”
The Full Court also found (at [31]) that in circumstances of the matter, the service on the appellant (by post) complied with the requirements of the Act and regulations.
The third case to which counsel referred me was that of Minister for Immigration and Citizenship v Manaf [2009] FCA 963, a decision of Sundberg J given on 31 August 2009. The relevant facts were that:
a)In February 2006 the respondent lodged an application for a further business visa in which he provided an address to which correspondence should be sent (the Bridgewater Way address).
b)On 7 August 2007, the delegate refused to grant the visa and later on the same day sent a letter by registered post to the Bridgewater Way address enclosing a copy of the decision.
c)On 22 August 2007, the respondent advised the department of a change of address (the Bindowan Drive address).
d)On 23 August 2007, in response to that advice, the department sent a further letter to the respondent enclosing the first notification letter, but as a result of error that was not sent to the Bindowan Drive address but to an address that did not exist.
e)On 24 August, the first notification letter was returned to the department unopened.
f)On 3 September 2007, the second notification letter was returned to the department marked “no such address”.
g)On or about 8 February 2008, the respondent became aware of the delegate’s decision and on 28 February 2008, she applied to the Tribunal for review.
h)On 6 May 2008, the Tribunal declined jurisdiction because the application had not been made within time, based on its acceptance that the respondent had been notified of the delegate’s decision on 16 August 2007 by the first notification letter.
i)Following a decision of the Federal Magistrates’ Court contrary to the Minister’s position, on 24 March 2009 the Department sent the respondent a letter (the third notification letter) enclosing a letter to the respondent dated 23 March 2009 and the decision record dated 7 August 2007 by which the delegate refused her visa application. The 23 March letter stated that the visa application had been refused.
The Court was required to consider an extension of time for the appeal to be brought. In considering the matter, Sundberg J said at [26]:
“In my view the Minister has a strong case that once the Federal Magistrate had rejected the technical attacks on the validity of the first notification letter, he should have concluded that the respondent had been notified of the delegate’s decision on the ground that the defect in the second notification letter cannot affect the validity of a notification that had already been “taken” or “deemed” to have occurred prior to the second notification letter being sent.”
His Honour went on to say to say at [28]:
“The contention that the respondent’s application for review will determine her right to a visa is in my view much weaker than the Minister’s strong case described at [26]. On that case, the third notification letter was incapable of having any effect because the first notification letter was effective. Accordingly the Tribunal would have no jurisdiction to entertain the application … The current application was not made within the prescribed period, and accordingly is not competent. The Tribunal has no jurisdiction to entertain it. The Department’s letter of 24 March 2009 cannot confer on the Tribunal jurisdiction it does not have. The respondent’s discretionary consideration depends on the Minister’s contention, just described, being erroneous. All I need say at this stage is that in view of the strength of the Minister’s case, I do not regard this discretionary consideration, which is at odds with that strong case, to be sufficiently persuasive to cause me to refuse an extension of time.”
At [35], dealing with a second discretionary consideration advanced by the respondent to the appeal, Sundberg J said:
“The viability of the second discretionary consideration depends on the soundness of the contention that the second notification letter negates the effect of the first. As I have said at [28], the Minister’s argument to the contrary is much stronger than the respondent’s argument in support of denying the extension of time. What I have said there is applicable to this discretionary consideration.”
Having granted the extension of time, Sundberg J went on to consider the appeal itself. At [38] his Honour stated:
“In dealing with the application for extension of time, I have said that the Minister has strong prospects of success on an appeal. Having heard the argument on the appeal itself, I have concluded that the matters recorded at [16]-[26] and [28] lead to the conclusion that the appeal should be allowed. It is necessary, however, to deal with the respondent’s submissions on the appeal that were not deployed on the extension application.
The respondent submits that the Act does not prevent the Minister notifying a decision on more than one occasion, either because there is doubt whether the duty imposed by s.66 had been discharged or because it is expedient to do so.”
His Honour went on to refer to the circumstances of Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597.
At [40] his Honour continued:
“The present case is quite different. Here the Tribunal found, correctly, that it did not have jurisdiction to entertain the appeal.”
Having considered s.33 of the Acts Interpretation Act 1901, his Honour went on to say at [48]:
“48. If, contrary to my view, s.33(1) could in an appropriate statutory context operate in the manner sought by the respondent, it could not do so in the present case because the notification scheme of the Act, especially s.494C, discloses a contrary intention. The prescriptive timing regime that runs through the Act is inconsistent with the notion that, as the Minister put it, “you can reset the clock as often as you like by just sending a new letter”.
49. In support of the contention that a subsequent notification cancels the effect of an earlier one, the respondent relied on H v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 153. There notification had first been sent to the appellant’s agent and was later handed to the appellant in person. Notification to the agent gave the appellant more time in which to lodge his application for review. The Refugee Review Tribunal dismissed the application on the ground that it was out of time. The primary judge dismissed an appeal from that decision. The appellant’s appeal was upheld by the Full Court. The Court agreed with the Tribunal’s decision so far as it concerned personal notification, but said that the Tribunal had overlooked the notification to the agent. At [9] their Honours said:
“On the basis of this notification, there are two alternative bases for concluding that the application for review was within time. The first is that the notification to the migration agent was the only relevant notification of the decision, so that the application for review could be lodged at any time before 14 November. This approach assumes that once the Minister first notified the appellant of the decision, that exhausted the Minister’s obligation under s.66. If that be correct, any further “notifications” (for example, by personally serving the appellant with a copy of the decision), would not be notifications under the statute and would have no legal consequence.
The second basis for holding the application to be within time assumes that the second notification cannot be ignored, and that it brought into operation a second timetable within which the applicant could file a notice of review. In that event the applicant has been given two inconsistent timetables within which to make application for review and, in the absence of any statutory basis for giving one priority over the other, the appellant was entitled to choose the timetable that best suited him. That is what occurred in this case, albeit the appellant did not know he was making a choice.”
50. In Zhang v Minister for Immigration and Citizenship (2007) 161 FCR 419, the appellant relied on the second basis in H, which the Full Court described at [23] as an “ambitious claim”. At [25] their Honours said it was unnecessary to express any view on the correctness or otherwise of the second basis in H and in particular “whether there can be two operative and effective notifications made”. They were of the opinion that in the case before them two methods of notification were not utilised giving rise to inconsistent timetables.
51. In my view the Full Court in H was not endorsing both alternative bases. Only one can be the correct approach. An assumption is part of each of them. I understand the Court to have said that on whichever of the two bases argued was the correct one, the application for review was within time. It was thus unnecessary to decide which was the true view. For the reasons I have given, the first basis is to be preferred. That would appear to have been the opinion of the Court in Zhang.”
Counsel for the applicant submitted that the observations of Sundberg J were not binding on me on what I understood to be two bases. First it was submitted that his Honour’s decision was inconsistent with H and ought not be followed as his Honour was a Full Court sitting as one, whereas there was a Full Court of three in H. I do not think this submission can be sustained. What Sundberg J had to say in Manaf was not inconsistent with what the Full Court said in H rather, as is clear from paragraph [51] of his honour’s Reasons for Judgment quoted above, was that he was explaining what the Full Court meant. Even if I am wrong in this regard, I note that in Singh v Minister for Immigration & Citizenship at [61], it was said, in relation to Manaf:
“In my view, Sundberg J’s decision in Manaf binds me to hold that there cannot be two timetables for the commencement of a review application.”
Jarrett FM’s decision was upheld on appeal (see Singh v Minister for Immigration & Citizenship & Anor [2011] FCAFC 27).
I am obliged to follow Jarrett FM’s decision unless I think it is plainly wrong. I do not. Further, I bear in mind the guidance given by Perram J in Informax International Pty Ltd v Clarius Group Ltd [2011] FCA 183 at [53]-[56] as to the ambit of the expression “plainly wrong” in the light of his Honour’s reasoning and the Full Court decisions therein cited.
In the circumstances the first basis submitted by the applicant cannot be upheld.
The second basis upon which it was submitted I should not follow Manaf was that the case concerned different facts, that the observations were further and in any event obiter dicta.
I do not think that his Honour’s remarks can be approached in that way. The applicant in Manaf squarely raised the capacity of the second and third notification letters to operate when the first letter was, as both the Federal Magistrate and Sundberg J found, an effective notification. His Honour was plainly required to address this issue in order to determine the case.
Further, the facts in this case are in many ways very similar to those in Manaf. Here there were only two notifications (if the 10 June letter characterises notification) but the second, an attempt in effect to revivify the notification process, seems to me to be relevantly on all fours with that in Manaf.
In my view, the decision of Sundberg J is on point, and clearly requires me to determine the aspect of this case adversely to the applicant.
It is convenient to deal at this point with a subset of argument about which both parties made submissions. The applicant has submitted that the 10 June 2010 letter was a further notification to him. The letter provided to him was plainly a copy of the earlier March notification simply run off on the day. It is not known why the relevant officer chose to change the date but one would assume that this was done as a matter of course because that was the date upon which it was being given to the applicant. It is marked “copy” and is not signed. To the extent that anything turns upon the matter I would have found that this was merely, as was the case in Zhang, a courtesy whereby a copy of correspondence previously sent was provided.
The estoppel point
It is immediately apparent that the estoppel point raised by the applicant must fail. The decision of Sundberg J in Manaf quoted at paragraph 32 above is plainly decisive on this point. There can only be one notification.
What was put by the applicant was that the Minister was estopped from denying the efficacy of the 10 June 2010 notice because (according to the applicant’s affidavit) on 10 June Mr John Scott, an officer of the Department, provided the applicant with a copy of the notice of refusal dated 10 June 2010 and advised him that his application was refused and that he could make an application to the Tribunal for review.
I was referred by the parties to numerous authorities on the question as to the extent to which the estoppel would lie against the executive. This question was considered in terms by Jarrett FM in Singh v Minister for Immigration and Citizenship [2010] FMCA 305. For his reasons set out at [72] – [77], his Honour declined to hold the Minister estopped.
His Honour’s reasoning in that case seems to me to be highly persuasive although it should be noted that his Honour did not find conclusively that estoppel may not lie against the executive. Nonetheless, and having regard to all the matters set out in his Honour’s reasons for judgment and in the submissions of the parties, it is plain on any view that the Tribunal made no representation. For the reasons set out at paragraph 35 of the first respondent’s written submissions, in my view estoppel would not lie in this case in any event. It should be noted that the decision of the Full Court in the appeal from the decision of FM Jarrett in Singh v Minister for Immigration and Citizenship [2011] FCAFC 27 at [47]-[48] is also strongly against the applicant on this point.
Furthermore, it is difficult to see in what way the applicant can establish detriment flowing from the alleged reliance upon the representation made by Mr Scott. It was submitted that the applicant might have applied directly to the High Court but, leaving aside the delay that has been occasioned by the processing of this application for review to this Court, it is not clear that the applicant’s rights such as they might be in that regard have in any way been affected.
Failure to make inquiries
An alleged failure to make inquiry by the Tribunal was not put as a substantive ground of application but was raised in passing by the applicant’s counsel. In this regard I uphold the submissions set out in paragraph 30 of the first respondent’s written submissions in any event. Clearly it would have been futile for the Tribunal to make inquiries given that it did not have jurisdiction to entertain the application.
Conclusion
For the above reasons it follows that the application must be dismissed with costs and I will so order.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate:
Date: 7 April 2011
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