Perera v Minister for Immigration - [2013] FCCA 1227

FEDERAL CIRCUIT COURT OF AUSTRALIA

PERERA v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 1227

Catchwords:
MIGRATION – Application to set aside earlier Orders made – whether an arguable case – review of decision of Migration Review Tribunal – Skilled (Provisional) (Class VC) Subclass 487 visa – application for Review not given to the Tribunal within the prescribed period – application for Review not valid – no jurisdictional error – application to set aside dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05(2)

Migration Act 1958 (Cth), ss.65, 66, 338, 347, 359A, 494B, 494C, 494D

Migration Regulations 1994 (Cth), regs.2.16, 4.02(4), 4.10

Applicant:

GAYAN DHANAJAYA PERERA

First Respondent:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 1614 of 2012

Judgment of:

Judge Hartnett

Hearing date:

8 August 2013

Delivered at:

Melbourne

Delivered on:

8 August 2013

REPRESENTATION

Counsel for the Applicant:

Mr Sorenson

Solicitors for the Applicant:

Goz Chambers Lawyers

Counsel for the First Respondent:

Ms Randall-Smith

Solicitors for the First Respondent:

Australian Government Solicitor

THE COURT ORDERS THAT:

The name of the First Respondent be changed to Minister for Immigration, Multicultural Affairs and Citizenship.
The Application filed 13 February 2013 be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $3,326.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1614 of 2012

GAYAN DHANAJAYA PERERA

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

These proceedings commenced on 14 December 2012 when the Applicant made application for judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) made 22 November 2012, and notified to the Applicant on 23 November 2012. The Response filed by the First Respondent sought that the Application filed 14 December 2012 be dismissed and the Applicant pay the First Respondent’s costs on the basis that the decision under review is not effected by jurisdictional error.
The matter first came before the Court on 6 February 2013 before Registrar Allaway. On that date there being no appearance by the Applicant the Court ordered that:-
“(1) The application be dismissed.
(2) The applicant pay the first respondent’s costs fixed in the sum of $1,296.00.”
On 13 February 2013, an Application in a Case was filed by the Applicant seeking that the Order made on 6 February 2013 be set aside and that the matter be listed for directions on a date to be fixed by the Court or such further or other orders as the Court deemed fit. Filed with that Application was an Affidavit in Support sworn by Mr Godson Nwankwo, solicitor, on 12 February 2013. Mr Nwankwo has the care and conduct of the matter on behalf of the Applicant.
In that Affidavit Mr Nwankwo set out the reason for his non-attendance at the directions hearing at 2.00pm on 6 February 2013. At that time he was acting on behalf of the Applicant. Essentially, by the time he arrived at the Court for the directions hearing the matter had been dismissed due to the Applicant’s lack of appearance. Mr Nwankwo is a solicitor of the firm of Gos Chambers Lawyers and the Application that was filed on 14 December 2012 had that firm’s name, its address for service, its email details and telephone and fax numbers on the front page of the Application.
Mr Nwankwo had not communicated with the solicitors on record for the First Respondent and prior to the directions hearing, as he claimed he did not know who it was that appeared on behalf of the First Respondent. The Australian Government Solicitor did file and it claims serve, a Notice of Address for Service and Response on 7 January 2013, being approximately one month prior to the hearing of the directions hearing. The solicitors for the Applicant claim not to have received such documents.
On 6 February 2013, Ms Julia Randall-Smith, solicitor, appeared on behalf of the First Respondent. Neither Mr Nwankwo nor the Applicant attended the directions hearing on time. On the basis of the Applicant’s non-attendance, Ms Randall-Smith applied to have the matter dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’) and on behalf of the First Respondent. She did not have the matter stood down to attempt to communicate with the solicitors acting on behalf of the Applicant. Mr Nwankwo attended at Court, but he arrived after the dismissal of the matter.
The Applicant applies to the Court this day under r.16.05(2) of the Rules. In determining whether to grant the Application of the Applicant the Court must be satisfied that the Applicant has provided a satisfactory explanation for non-attendance at the directions hearing, and that the substantive application raises an arguable case. The Court is satisfied with the explanation provided by the Applicant’s solicitor for his non-attendance at the directions hearing as set out in his Affidavit sworn 12 February 2013.
The issue for the Court this day is whether the substantive application raises an arguable case. The Applicant filed an Affidavit sworn by him on 14 December 2012 when filing the initial Application. The Applicant is a citizen of Sri Lanka. He was born on 12 June 1985 and is now 28 years of age. He arrived in Australia in February 2007 on a Student (Temporary) (Class TU) Subclass 573 visa. He applied to the Department for Immigration and Citizenship (‘the Department’) for a Skilled (Provisional) (Class VC) Subclass 487 visa on 7 March 2011. The Delegate refused to grant the Skilled (Provisional) (Class VC) Subclass 487 visa on 13 April 2012 and notified the Applicant of the decision and his review rights by letter dated 13 April 2012 by email to the Applicant’s registered migration agent at the email address contained on the visa application form submitted by the Applicant. That visa application provided postal and email details of the Applicant’s registered migration agent, Mr Geoffrey Ward of Mendoza Australian Immigration Solutions. Notification of the decision was also made to the Applicant at his residential address as provided by him in his visa application of 7 Arunta Crescent, Clarinda, 3169.
The Applicant applied to the Tribunal for review of the Delegate’s decision on 9 May 2012. That application included the representative details of Mr Godson Nwankwo of Goz Chambers Lawyers, who lodged the Application on the Applicant’s behalf with the Tribunal.
The Application for Review was accompanied by a Statutory Declaration dated 9 May 2010 of the Applicant stating that:-
a)on 7 March 2011, he sought the assistance of Mr Ward, migration agent, who had lodged the visa Application on the Applicant’s behalf;
b)after lodging the visa Application, he had attempted to follow up the progress of the application but Mr Ward rarely responded to his calls;
c)on or about November 2011, the Applicant terminated his contract with Mr Ward and notified the Department in writing and requested that all future correspondence be forwarded to his then residential address, 7 Arunta Crescent, Clarinda, Victoria, 3169 (‘the Clarinda address’). The Court notes the Applicant has subsequently stated that he has been unable to locate a copy of this letter because he lost his documents in the process of relocating from one address to another;
d)on 8 May 2012, the Applicant conducted a web search in order to ascertain the progress of his visa application and discovered that the application had been finalised on 13 April 2012;
e)on 9 May 2012, the Applicant attended upon the Departmental office at Dandenong, where he was provided with a copy of the decision letter dated 13 April 2012 addressed to his previously provided residential address, the Clarinda address, and a copy of the decision; and
f)because the Applicant had moved from the Clarinda address in January 2012, he telephoned his then landlord, Mr Derek Ruben, who informed him that he had some letters for him. He recalled that in or about mid-May 2012, Mr Ruben handed some letters to him. He noticed that one of the letters came from the Department and was a true copy of the one given to him at the Department’s office in Dandenong.
On 9 July 2012, the Tribunal sent a facsimile to Mr Nwankwo enclosing an invitation and letter addressed to the Applicant inviting the Applicant to comment on the validity of the application for review as lodged. The letter stated that:-
a)it was the Tribunal’s view that the application was not a valid one, as it had not been lodged within the relevant time limit;
b)the time limit was 21 days from the day on which the Applicant had been notified of the primary decision;
c)the primary decision was emailed to the Applicant’s authorised recipient on 13 April 2012, and on that basis, the last day for lodging the application was 4 May 2012;
d)as the application was lodged on 9 May 2012, it appeared to be out of time; and
e)the Applicant was invited to comment on whether a valid application had been made, in writing, within 14 days of receiving the invitation (by 23 July 2012).
On 23 July 2012, the Applicant through his legal representative, Mr Nwankwo, wrote to the Tribunal in response to its invitation to comment on the validity of the application for review to the Tribunal. The letter annexed a Statutory Declaration made by the Applicant dated 19 July 2012, which stated that:-
a)a copy of the decision notification dated 13 April 2012 was posted to the Clarinda address;
b)he had vacated the property at that address in January 2012 and his landlord had handed the letter to him on or about 15 May 2012;
c)a copy of the same decision had been printed out for him when he attended the Department on 9 May 2012; and
d)he had notified the Department that his authorised recipient (Mr Ward) was no longer acting for him prior to 13 April 2012.
On 22 November 2012, the Tribunal handed down its decision, concluding that it had no jurisdiction to conduct a review of the decision to which the Application for Review related, because the Application for Review was not valid, it having been received by the Tribunal on 9 May 2012 after the prescribed period of 21 days within which the Application for Review could be lodged had expired. Accordingly, the Tribunal determined it had no jurisdiction in the matter. The notification of that decision was provided to the Applicant by correspondence with Mr Nwankwo on 23 November 2012. The Applicant then filed his Application in this Court for judicial review of the Tribunal’s decision on 14 December 2012.

The Tribunal decision

The Tribunal had before it the Department’s file and the Submissions received from the Applicant’s solicitor of 23 July 2012. The Tribunal noted that its jurisdiction arises if an application is properly made under s.347 of the Migration Act 1958 (Cth)(‘the Act’) for review of a Migration Review Tribunal reviewable decision. Section 338 and reg.4.02(4) of the Migration Regulations 1994 (Cth) (‘the Regulations’) set out the various decisions that are Migration Review Tribunal reviewable decisions. A decision to refuse to grant a Skilled (Provisional) (Class VC) Subclass 487 visa under s.65 of the Act is covered by s.338(3) of the Act. Section 347(1)(b) of the Act requires an application for review to be given to the Tribunal within the prescribed period. The prescribed periods are set out in reg.4.10 of the Regulations and commence on the day on which the Applicant is validly notified of the decision. In this case, the Application for Review was required to be lodged in the Registry of the Tribunal within a period of not later than 21 days after the day on which the notice of the Delegate’s decision was received by the Applicant. There is no provision for an extension of time. The Tribunal referred to the provisions relevant to the matter before it being those that dealt with notification of a decision to refuse to grant a visa as contained in ss.66, 494B, 494C, and 494D of the Act and reg.2.16 of the Regulations. The Tribunal set out the following at paragraph 9 of its Reasons:-
“Section 66(1) provides that 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 provides that for the purposes of s.66(1), the Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in s.494B. Section 494B specifies alternative methods for giving a document to a person.”
And at paragraph 10:-
“One of the methods specified in s.494B consists of the Minister transmitting the document by fax or e-mail to the last fax number or email address provided to the Minister for the purposes of receiving documents: s.494B(5). If a document is given to a person by this method, the person is taken to have received the document at the end of the day on which the document is transmitted: s.494C(5). This will be so despite the deemed receipt provisions of the Electronic Transactions Act 1999: s.494C(5) and (6). Therefore, if the notice of a decision to refuse to grant a visa was sent in accordance with s.494B(5), the prescribed period within which a review application must be lodged with the Tribunal commences at the end of the day in which the document is transmitted.”
And at paragraph 11:-
“If an applicant has nominated an ‘authorised recipient’ by giving the Minister written notice of the name and address of another person authorised by the applicant to receive documents in connection with matters arising under the Act or the regulations, the Minister must give the authorised recipient, instead of the applicant, any documents that the Minister would have otherwise given to the applicant, s.494D(1) of the Act. If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the applicant: s.494D(2) of the Act. However, this does not prevent the Minister giving the applicant a copy of the document.”
And at paragraph 12:-
“Section 66(2) provides that notification of a decision to refuse to a visa must contain certain information about why the visa was refused and, if there is a right of review, how to apply for review of the decision.”
The Applicant was notified of the Delegate’s decision to refuse to grant the Skilled (Provisional) (Class VC) Subclass 487 visa on 13 April 2012. An email was sent to the Applicant’s authorised migration agent at the email address provided by the Applicant in his General Skilled Migration Application form.
The Tribunal was satisfied that the contents of the Delegate decision notification had complied with s.66(2) of the Act, and further the requirements of ss.494D and 494B(5) of the Act had also been complied with. The Tribunal found the Applicant was taken to have received the decision notice on 13 April 2012, being the day when the notice was transmitted by email to Mr Ward, the Applicant’s then migration agent. The Applicant claims in oral submissions made this day that the Reasons of the Tribunal are not sufficiently particularised and should include the name of the authorised recipient, namely Mr Geoffrey Ward of Mendoza Australian Immigration Solutions, a description of the actual email address, rather than the words “to the applicant’s authorised recipient’s last email address provided to the Minister for the purposes of receiving documents”.
This argument fails. The Tribunal in its statement of decision and reasons set out the relevant law with accuracy, and then applied it. Although the Applicant claimed to have terminated the services of Mr Ward and notified the Department of a change to his authorised recipient, no such communication was put before the Court by the Applicant and none was contained in the Department file. There is no evidentiary basis to support the submissions of the Applicant in that regard. Furthermore, even if that was the case (which the Court finds it is not) the Applicant’s own evidence is that the Department did forward to him the decision record of the Delegate attached to correspondence addressed to him and dated 13 April 2012, and forwarded such documents to the residential address provided by him in his visa application form, and claimed letter to the Department of November 2011, namely the Clarinda address. The Applicant departed from that residence in January 2012, but failed to inform the Department of any change to his residential address or to his authorised recipient and nor did he make any arrangements for the forwarding of his mail to him at any subsequent postal address.
The First Respondent submitted this day that the Application before the Court does not demonstrate an arguable case and should not be reinstated. I accept that submission. The Tribunal had no jurisdiction to consider the Application for Review. The Applicant was provided with an opportunity to comment on the validity of his application for review as set out in the Tribunal’s letter dated 9 July 2012, which contained clear particulars of the information the Tribunal considered would be the reason for finding that the Application was not a valid one. He was invited to comment on whether a valid application had been made (s.359A(1)(c) of the Act). There was no requirement upon the Tribunal that the Applicant be provided with an opportunity to attend a hearing and to give evidence under s.359A of the Act.
The decision notice was emailed to the Applicant’s authorised recipient, Mr Ward, on 13 April 2012 at the last email address provided to the Minister for the purposes of receiving documents, and it is taken to have been received on the same day. The Department had no record of any notification of a change in authorised representative prior to 13 April 2012. The Applicant provided no documentary evidence indicating that he had provided such notice as claimed to the Department. The prescribed period of 21 days having ended on 4 May 2012 meant that there was no provision for the Tribunal to exercise discretion and grant an extension of time (s.347(1)(b)(i) of the Act and reg.4.10(1)(a) of the Regulations).

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate:

Date: 30 August 2013