PATHANIA v Minister for Immigration
[2015] FCCA 932
•16 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PATHANIA v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 932 |
| Catchwords: MIGRATION – Application for judicial review of decision of Migration Review Tribunal (Tribunal) – whether the Tribunal was correct to conclude it had no jurisdiction to determine application for review that came before it because the application for review was made to it more than 28 days after the applicant was notified of the decision of a delegate of the first respondent not to grant a Student visa – whether the delegate was entitled to notify the applicant of the decision by post given that the applicant agreed that the delegate could communicate with the applicant by email and the delegate did communicate with the applicant by email – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.66, 66(1), 338, 338(2), 347, 347(1)(b)(i), 494B, 494B(4), 494C, 494C(4) Migration Regulations 1994 (Cth), reg.2.16(3) |
| Annetts v McCann (1990) 170 CLR 596 Re Minister for Immigration and Multicultural Affairs Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 |
| Applicant: | SAHIL PATHANIA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 94 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 1 August 2014 |
| Date of Last Submission: | 14 August 2014 |
| Delivered at: | Sydney |
| Delivered on: | 16 April 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Kinslor Prince Lawyers |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 94 of 2014
| SAHIL PATHANIA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The question that arises in this application for judicial review is whether a delegate of the first respondent (Minister) lawfully notified the applicant of the decision the delegate made on 24 July 2012 not to grant the applicant a Student (Class TU) visa (Student visa). If the applicant was lawfully notified, the second respondent (Tribunal), as it found, did not have jurisdiction to entertain the application for review the applicant filed in relation to the delegate’s decision; and the application for judicial review to this Court must be dismissed.
Before I identify the grounds on which the applicant relies for contending the delegate did not lawfully notify the applicant of her decision, it will be necessary to refer to the relevant statutory provisions that govern the means by which the Minister may notify visa applicants of decisions in relation to applications for visas. It will also be necessary to identify the facts on which the applicant relies for claiming he was not lawfully notified of the delegate’s decision.
Statutory provisions
The Tribunal has jurisdiction to review “MRT-reviewable decisions” as that expression is defined in s.338 of the Migration Act 1958 (Cth) (Act). That jurisdiction arises if an application in relation to an MRT-reviewable decision is properly made under s.347 of the Act, and within the time specified in that section. For decisions in relation to visas, such as Student visas, that fall within s.338(2) of the Act, s.347(1)(b)(i) provides that applications for review must be made “not later than . . . 28 days after the notification of the decision”.
Precisely when a particular decision is notified is determined by the application of a number of provisions of the Act and the Migration Regulations 1994 (Cth) (Regulations). The starting point is s.66(1) of the Act which requires the Minister to notify the applicant of a decision to grant or not to grant a visa “in the prescribed way”. Reg.2.16(3) of the Regulations provides that 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”.
One of the methods is that specified in s.494B(4). It permits a document to be dispatched by pre-paid post or other pre-paid means to “the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents”. Under s.494C(4) of the Act, where a document is dispatched to a person from an address in Australia to another address in Australia in the manner required by s.494B(4) of the Act within three working days of the date of the document, the person is taken to have received the document in the place of the address 7 working days after the date of the document.
There is no issue that the delegate dispatched the letter recording its decision within three working days of the date of the letter. If, therefore, the delegate was entitled to notify the applicant of his decision by dispatching the letter to the address stated in the letter, the applicant is taken to have received the letter by 2 August 2012. If the applicant was properly notified, he was required to file an application for review by no later than 23 August 2012.
Facts
The applicant applied for a Student visa by completing an application in the prescribed form. Under the heading “Residential address details”, the form required the applicant to provide “details of the Australian residential address that you are currently living at”. The applicant provided an address in Fairy Meadow. Under the heading “Contact Details”, the form of application required the applicant to give “details of your postal address in Australia”. The applicant provided the same address he provided under the heading “Residential address details”.
Under the heading “Communicating with you”, which appeared within the section headed “Contact details”, the following was printed:
Communicating with you
We can communicate about your application more quickly using e-mail and/or fax. Do you agree to this Department communicating with you via e-mail and/or fax?
Under this writing, the applicant answered “Yes”. Under the space the form provides for the insertion of an answer to this question, the form included the following words: “If yes, enter e-mail address”. The applicant provided an email address.
Under the heading “Declaration”, the form of application contained a number of questions the applicant was required to answer. One of these was:
Do you acknowledge that you must immediately advise this Department if you become aware that any information provided in this form is incorrect or if there is a change in your circumstances at any time?
The applicant answered “Yes”.
The Department of Immigration and Border Protection (Department)[1] acknowledged receipt of the application for a Student visa by sending to the applicant an email on 29 February 2012.[2]
[1] The Department was then known as the Department of Immigration and Citizenship
[2] Affidavit of applicant 18.07.2014, annexure “C”.
By email sent on 6 March 2012, a delegate of the Minister informed the applicant of her decision to grant the applicant a bridging visa.[3] The delegate, in the same email, identified the information the applicant should provide in support of his application for a Student visa. The applicant responded to the delegate’s email sometime before 23 June 2012, although that email is not in evidence. There is, however, an email from a delegate of the Minister sent to the applicant on 23 June 2012 in which the delegate requested the applicant provide further information. [4]
[3] CB13
[4] CB9
In the meantime, in June 2012 the applicant changed his residential address, and he did so again in July 2012. He says he did not advise the Department of these changes because it did not occur to him to update the Department. He says it did not occur to him because he had lodged the application for the Student visa on-line through an Internet portal on the Department’s website, he stated in his application that he had agreed to communicate by email and, he understood from the wording of the form of application and his communications with the Department that the Department would communicate with him by email.
The parties’ contentions
The applicant contends the delegate’s notification of its decision was not lawful for two reasons. First, the notification was given in breach of a duty to accord procedural fairness. Second, the Minister is estopped from asserting the delegate sent the document recording her decision in the manner prescribed by the Act. The Minister, on the other hand, submits that the circumstances of this case are indistinguishable from those considered by Buchanan J in Minister for Immigration and Border Protection v Kim[5] and I should reject the applicant’s claims for the reasons his Honour rejected the applicant’s claims in Kim. In response, the applicant submits Kim is distinguishable for a number of reasons.
[5] [2014] FCA 390
Before I consider the parties’ submissions, it would be useful if I first consider Buchanan J’s reasons for decision in Kim.
The decision in Kim
In Kim the applicant applied for a Student visa. In her application the applicant nominated a residential address in Australia, and one in Korea. The application form asked whether the applicant agreed to the Department communicating with the applicant by fax, email or by other electronic means. The applicant answered in the affirmative, and provided her email address. The Department notified the applicant by email that a bridging visa had been granted. The Department, however, communicated the delegate’s decision not to grant the applicant the Student visa by sending the decision by post to the applicant’s residential address in Australia the applicant specified in her application. By the time of the decision, the applicant had left that address, which meant she did not receive any notice of the delegate’s decision until some months after the decision.
A judge of this Court held that the delegate did not properly notify the applicant because the letter should also have been sent to the applicant’s residential address in Korea. The Tribunal’s decision, therefore, was set aside. Buchanan J held that the primary judge erred in so holding. However, before Buchanan J the visa-applicant raised an argument that was not considered by the primary judge. She submitted the delegate was bound not to send the letter to her residential address, but, instead, to send it to her email address. The basis of that submission was that she permitted the Department to communicate with her by email, and the Department did previously communicate with her by email.
The issue his Honour considered arose from the parties’ competing contentions was whether “the Minister retained an effective discretion to choose any of the methods prescribed by s 494B (including delivery by hand) to communicate a visa refusal to the first respondent”,[6] or whether “the Minister was bound not to send a letter” to the residential address in Australia the applicant nominated in her application “and was bound to communicate with the first respondent only by email, and not in some other fashion”.[7] His Honour held the Minister was not so bound, and that the Minister “retained an effective discretion to choose any of the methods prescribed by s 494B”.[8]
[6] [2014] FCA 390 at [28]
[7] [2014] FCA 390 at [34]
[8] [2014] FCA 390 at [28]
His Honour relied on a number of matters for adopting that view. First, to hold the Minister was bound to communicate by email would mean the Minister could not elect to deliver a communication by hand.[9] That, however, was not a method of delivery that was excluded by s.494B of the Act, and it was hard to see why the discretion to use that method of delivery could not be used. Second, the Minister was entitled to regard the residential address the applicant specified in her application as her current residential address. That is so because, in her application, the applicant declared she was aware she had to immediately advise the Department if she became aware that any information provided in the form of application was incorrect.[10] Third, his Honour [11] relied on the reasoning of Gilmour J in Haque v Minister for Immigration and Citizenship:[12]
The appellant’s consent to the receipt of communications by email did not oblige the first respondent to communicate with him by that means. . . . It was open to the first respondent to use any one of the methods provided for under s 494B . . . . Whilst an email address was provided by the appellant to receive correspondence, there is no requirement for the Tribunal to send communication electronically . . . .
[9] [2014] FCA 390 at [35]
[10] [2014] FCA 390 at [40]
[11] [2014] FCA 390 at [42]
[12] [2010] FCA 346 at [64]
With respect, the conclusion of Buchanan J in Kim that the Minister was not bound to communicate by email is undoubtedly correct. Section 494B of the Act confers on the Minister a discretion about the method by which the Minister must notify an applicant of a decision made under s.66 of the Act to grant or refuse to grant a visa. It is rare for a court exercising judicial review jurisdiction to conclude that a decision-maker is bound to exercise a discretion in a particular way. That only occurs where, in the circumstances of the case, a court concludes that a discretion can lawfully be exercised only in one way. But to hold that the Minister is not bound to exercise the discretion under s.494B in any particular way is not the same thing as holding that the Minister does not at the very least have to recognise he or she has a discretion and consider how that discretion should be exercised. Nor is it the same thing as holding that the Minister can exercise the discretion capriciously or arbitrarily or unreasonably or in a manner that is outside the subject matter, scope and purpose of s.494B of the Act. Thus, the Minister’s decision in this case to notify the applicant by prepaid post, rather than by email, was liable to be set aside if it could be shown the Minister, through his delegate, did not recognise he had a discretion about the manner in which he should communicate his decision to the applicant or, if he recognised he did have a discretion, he did not consider how the discretion should be exercised in the circumstances of the case, and, if he did consider that question, it was exercised in a manner that was not within the subject matter, scope and purpose of s.494B.
The applicant does not submit, however, that the Minister, through his delegate, failed to consider he had a discretion or that he did not consider how to exercise the discretion or that he exercised the discretion in a manner not within the subject matter, scope or purpose of s.494B of the Act. As I say earlier, the applicant advances two grounds. The first is that the Minister’s failure to inform the applicant by email amounted to a breach of procedural fairness; and, second, the Minister is estopped from asserting the delegate sent the document recording her decision in the manner prescribed by the Act.
Duty to accord procedural fairness?
Counsel for the applicant submits that Kim is not determinative of the case that is before me because the applicant in Kim did not rely on any principle of natural justice. This submission is self-evidently correct. Kim is not authority for the proposition that the exercise of the power under s.494B of the Act is not subject to a duty to accord procedural fairness. The question whether the exercise of the power conferred by s.494B is subject to the duty to accord procedural fairness must be answered without reference to Kim.
The duty to accord procedural fairness is implied, or at least is considered to be incidental to the exercise of a power which is likely to affect a person’s rights or interests. When it applies, the duty to accord procedural fairness requires the decision-maker to provide the person to be affected with a reasonable opportunity to be heard before the power is exercised. Precisely what is required in any given case to discharge such duty depends on the circumstances of the particular circumstances of the case. The duty extends to ensuring that, in appropriate cases, representations made by a decision-maker do not operate unfairly on the person whose interests are or may be affected by the exercise of the power.[13] The duty to accord procedural fairness, however, is not concerned with ensuring the discretion will be exercised in a particular way.[14]
[13] “There are undoubtedly circumstances in which the failure of an administrative decision-maker to adhere to a statement of intention as to the procedure to be followed will result in unfairness and will justify judicial intervention to quash the decision . . . .” (Re Minister for Immigration and Multicultural Affairs Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 at [25] (Gleeson CJ).
[14] Attorney-General (NSW) v Quin (1990) 170 CLR 1 at page 40 (Brennan J).
The duty to accord procedural fairness may be excluded by express statutory provisions or by necessary implication of the statute pursuant to which the power is conferred.[15] The power will be excluded by necessary implication where the application of the duty to accord procedural fairness would be inconsistent with the proper operation of the relevant statutory provision conferring that power.[16] In my opinion, that would be the case if a duty to accord procedural fairness were to apply to the exercise of the power conferred by s.494B of the Act.
[15] “It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment.” – Annetts v McCann (1990) 170 CLR 596 at page 598 (Mason CJ and Deane and McHugh JJ).
[16] M Aronson and M Groves Judicial Review of Administrative Action Fifth edition, 2013 at page 456
Section 494B of the Act prescribes methods by which the Minister may communicate with a visa applicant in connection with an application for a visa. Section 494D specifies the times by which an applicant is deemed to have received a communication that is effected according to any one of the methods prescribed by s.494B of the Act. The obvious purposes of s.494B and s.494D are to provide certainty in the methods by which the Minister may communicate with a visa applicant, and confer certainty in the identification of the times by which a visa applicant is deemed to have received a communication from the Minister.
Those purposes would be defeated if s.494B were subject to a duty to accord an applicant procedural fairness. If there were a duty to accord procedural fairness, and the Minister were required to give notice to a visa applicant of his intention to exercise the power in s.494B in a particular way, the Minister would not be able to rely on s.494B when giving such notice. The Minister would in every case be required to give notice of his or her intention to exercise s.494B in the manner required, not by s.494B, but by what the rule to accord procedural fairness would require in the circumstances of the particular case.
Breach of the rules of procedural fairness?
If, contrary to my conclusion, s.494B of the Act was subject to a duty to accord procedural fairness, was the applicant denied procedural fairness?
The particular aspect of the principle to accord natural justice on which the applicant relies is that stated by Logan J in the following passage from WZARB v Minister for Immigration and Citizenship:[17]
Where a decision-maker is bound to afford natural justice in the exercise of a statutory or other power to make an administrative decision, words or conduct by that decision-maker as to the procedure which will be followed prior to the exercise of that statutory power can inform the content of the natural justice obligation in the circumstances of a particular case and, if that procedure is subsequently not observed by the decision-maker, can lead to a conclusion that an individual affected by the decision has not been afforded natural justice.
[17] [2013] FCA 523 at [20]
The applicant submits that the fact the form of application indicated that communication will be made by electronic means, and that all communications between the applicant and the Department were by email, fairness required that the delegate communicate her decision also by email. The applicant further submits that the reasoning of Kim should not be applied because the facts in that case are materially different from the facts in the case before me. First, unlike the facts of the case before me, in Kim there was a hard copy application, and not all communications, therefore, were effected by email or electronically. Second, in this matter, unlike in Kim, there was exclusive electronic communication over the course of two visa applications, up to the time of decision on the second application. Third, the Department communicated to the applicant a decision to grant the applicant a previous visa by email, whereas this feature is missing from Kim. Fourth, the representation contained in the form of application the applicant completed is different from the representation the Department made in Kim. In the case before me, the form contains the words “We can communicate about your application more quickly using email and/or fax” whereas this statement was absent from the form the applicant completed in Kim.[18] Fifth, there were fewer email communications in Kim than in the case before me.
[18] [2014] FCA 390 at [24]
I accept counsel for the applicant has accurately identified differences in the facts between Kim and the case before me. Those differences, however, do not lead me to find the applicant was denied procedural fairness in the sense submitted by the applicant. Although the applicant, like the applicant in Kim, may well have believed the Department would communicate with the applicant by email, given the applicant recorded in the form of application an address for correspondence, and made a declaration he would notify the Department of any change in his circumstances, the applicant, just like the applicant in Kim, was not reasonably entitled to believe that the Department would only communicate with the applicant by email. Having provided a residential address in his application for review, and having provided the same address as the address to which the Department could correspond with the applicant, the applicant ought to have been aware that the Department could send documents to his residential address, and ought, therefore, to have informed the Department of his change of address when that occurred. The applicant could not reasonably have assumed on the basis that the delegate would communicate to the applicant by email that the applicant was relieved of the need to inform the Department of any change in his residential address and address for correspondence.
For these reasons, this part of the applicant’s challenge to the Tribunal’s decision fails.
Estoppel
The applicant submits that, under the law of Australia, a public authority can be held to a representation that a decision-maker made to a person in the course of the exercise of a statutory power in the following circumstances:
a)the person has been led by the words or conduct of the public authority to believe that a discretion will be exercised in a certain way; and
b)the exercise of the relevant discretion in that way is not ultra vires; and
c)the public authority is not materially hampered in the exercise of its statutory duty; and
d)the person has detrimentally relied on the public authority’s words or conduct.
The applicant further submits that these elements are made out on the facts of this case.
The applicant acknowledges there is no authority in Australia that has held that a public authority can be held to a representation it has made in the circumstances I have set out in paragraph 31 of these reasons. Relying on the reasons for decision of Mason CJ in Attorney-General (NSW) v Quin,[19] however, the applicant submits “the door has been left ajar” for the development of a doctrine of administrative estoppels.
[19] (1990) 170 CLR 1. The applicant particularly relies on the following passage from Mason CJ’s reasons (at page 11): “What I have just said does not deny the availability of estoppel against the Executive, arising from conduct amounting to a representation, when holding the Executive to its representation does not significantly hinder the exercise of the relevant discretion in the public interest.”
If the door for the development of a doctrine of administrative estoppels has been left ajar by what Mason CJ said in 1990, no one had ventured to enter, and it is not appropriate for this Court now to push open the door. In any event, the facts before me would not bring into operation the principles the applicant invites the Court to adopt. Although it may be accepted the applicant believed the delegate would communicate to the applicant by email, and that he relied on that belief in not informing the Department of the change in his residential address, for the reasons I have already given, the applicant’s reliance on his belief was not reasonable. That is, the applicant recorded in the form of application an address at which correspondence would be sent, and the applicant declared he would inform the Department of any changes in his circumstances, which included changes in his residential address. In those circumstances, it was not reasonable for the applicant to assume that the Department would not communicate with the applicant by sending correspondence to the applicant’s residential address; and it was not reasonable for the applicant to assume that he was relieved of informing the Department of changes in his circumstances, including changes in his residential address.
This part of the applicant’s challenge to the Tribunal’s decision, therefore, also fails.
Conclusion and disposition
The applicant has not established the Tribunal had jurisdiction to entertain the application for review the applicant lodged in relation to the delegate’s decision not to grant the applicant a Student visa. The application, therefore, will be dismissed with costs.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 16 April 2015
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