Rahman v Minister for Immigration

[2016] FCCA 553

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAHMAN v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 553

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – Tribunal finding that it lacked jurisdiction as the review application was filed more than five years late – no jurisdictional error.

Legislation:

Evidence Act 1995 (Cth), s.69

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.66, 338, 347, 494B
Migration Regulations 1994 (Cth)

Haque v Minister for Immigration (2010) 221 FCR 289
Minister for Immigration Protection v Kim (2014) 220 FCR 494
Minister for Immigration v Singh (2000) 60 ALD 667; [2000] FCA 377
SZOBI v Minister for Immigration (No. 2) (2010) 119 ALD 233; [2010] FCAFC 151

Applicant: SYED ASHISH RAHMAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2601 of 2015

Judgment of: Judge Driver

Hearing date: 15 March 2016

Delivered at: Sydney

Delivered on: 15 March 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr L Dennis of Minter Ellison

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,825 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2601 of 2015

SYED ASHISH RAHMAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 21 August 2015.  The Tribunal found that it did not have jurisdiction in the review before it.  Background facts relating to the matter are set out in the Minister’s outline of legal submissions, filed on 7 March 2016. 

2. On 12 March 2010, the applicant, Mr Rahman, applied to the Department for a student (Temporary) visa[1].

   [1] Court Book (CB) 1-6

3. On 30 April 2010, the Minister’s delegate refused to grant Mr Rahman a visa[2]. The letter notifying Mr Rahman of that decision was dated 30 April 2010 and was addressed to Mr Rahman at 5/80 Beauchamp Street, Wiley Park, NSW, 2195, which was the Australian residential address provided to the Minister’s Department in the application of 12 March 2010[3].  The decision notification letter bears a registered post sticker with the number “564413417010”[4].

   [2] CB 19-22

   [3] CB 17-18; see also CB 2

   [4] CB 17

4. On 5 August 2015, the Tribunal received an application for review of the delegate's decision[5].  Mr Rahman provided a letter to the Tribunal with the application stating that he had not been informed that his visa application had been rejected at or around the time that the delegate's decision was made[6].

   [5] CB 23-32; see also CB 33-46

   [6] see CB 32; CB 46

5. On 14 August 2015, the Tribunal sent a letter to Mr Rahman by fax to invite him to provide any further comment on the validity of his application, noting that the application appeared to be invalid as it was made out of time[7]. On 18 August 2015, Mr Rahman provided a response to the Tribunal in which he again stated that he had not been informed of the delegate's decision[8].

   [7] CB 58-61

   [8] CB 63

Tribunal decision

1. On 21 August 2015, the Tribunal decided that it did not have jurisdiction in the matter[9].

   [9] CB 71-73

2. The Tribunal found that the material before it indicated that Mr Rahman was notified of the decision by letter dated 30 April 2010 that was dispatched by post, and was satisfied that Mr Rahman was notified of the decision in accordance with the statutory requirements[10]. The Tribunal found that, pursuant to s.347(1)(b) of the Migration Act 1958 (Cth) (Migration Act) and regulation 4.10 of the Migration Regulations 1994 (Cth) (Regulations), an application for review of the decision had to be made within 21 days after Mr Rahman was notified of the decision[11].

   [10] CB 72, at [3], [5]

   [11] CB 72, at [4]

3. The Tribunal noted that Mr Rahman had been invited to comment on whether a valid application had been made to the Tribunal[12], and that Mr Rahman provided a response claiming he was not informed of the delegate's decision and stating he could have been informed of the decision by email or mobile phone[13].  The Tribunal considered Mr Rahman’s response but was satisfied that he was notified of the decision in accordance with the statutory requirements and that, as the prescribed period in which he could seek review ended on 1 June 2010 and the application for review was not received until 5 August 2015, the Tribunal had no jurisdiction in the matter[14].

   [12] CB 72, at [6]

   [13] CB 72, at [7]

   [14] CB 72, at [8]

The present proceedings

1. These proceedings began with a judicial review application, field on 22 September 2015.  Mr Rahman continues to rely upon that application which raises the following ground of review:

   I, the applicant was not informed about the decision of application while it was made.  I was not informed by registered post or any other post, not by email or by mobile whereas I provided everything for any kind of notification.  It took me five years after it was made to notify me.  I lost five years only for just waiting to get response from immigration.

2. Mr Rahman’s principal contention is that he did not receive notification of the decision of the Minister’s delegate until 2015. 

3. In addition to the court book, I have before me as evidence two affidavits.  One is the affidavit of David Maxwell John McLaren, made on 9 February 2016, to which are annexed documents subpoenaed from Australia Post.  The other is the affidavit of Mr Rahman, made on 10 September 2015, and filed with the application. 

4. Mr Rahman made extensive oral submissions, emphasising what he sees as the injustice of his situation.  Mr Rahman stated from the bar table that he lived at his nominated residential address in Wiley Park until about July 2010, and had engaged in email correspondence with his departmental case officer at his nominated email address.  His visa application had also nominated a telephone contact number.  It appears that some time during April 2010, Mr Rahman’s case officer had informed Mr Rahman by email that he should anticipate receiving notification of the decision of the Minister’s delegate within 28 days.  That is consistent with the notification letter at CB 17, which is dated 30 April 2010.  Unfortunately, the notification letter, although sent by registered post, did not reach Mr Rahman.  It was ultimately returned to the Minister’s Department.  Mr Rahman left his Wiley Park address some time in July 2010 and says that he notified the Department of his change of address.  He did not make further enquiries of the Department about the fate of his visa application and the bridging visa that he held ran out 28 days after the delegate’s decision. 

5. Mr Rahman continued to live and work in Australia until in 2015, as a result of some altercation, he attended the Bankstown Police Station.  At that time his visa status became known and he was taken into immigration detention.  He has been there since.  Mr Rahman is aggrieved that no effort was made to inform him, either by phone or email, that an adverse decision had been made by the Minister’s delegate, and that the attempted notification of that decision to him had been unsuccessful.  It is a pity that apparently no effort was made by the Department to contact Mr Rahman after the return of the registered postal item sent to him.

6. It is also, on the other hand, appropriate to observe that Mr Rahman continued living and working in Australia for another five years without making enquiries of the Minister’s Department.  There may be some degree of fault on both sides.  That concerns the fairness of the outcome.  My task, however, is to deal with the legal issue, which is whether the Tribunal was correct in finding that it lacked jurisdiction. 

7. On that, I can find no fault with the Minister’s submissions.  In essence, the notification letter sent to Mr Rahman contained all of the elements which it was required to contain.  It was sent to the correct residential address nominated by Mr Rahman for the receipt of documents, and as appears from the affidavit of Mr McLaren, it was sent within three working days of the date it bore.

8. I accept the Minister’s submissions concerning the legislative scheme and the consequences of the application of the deemed notification provisions in the Migration Act.

9. At the time of the delegate's decision on 30 April 2015[15], s.66 of the Migration Act provided as follows:

   [15] Compilation prepared on 9 November 2009, taking into account amendments up to Act 91 of 2009. It is noted that the provisions of the Migration Act and Regulations relevant to this matter are in the same form as the current version of the Migration Act

   66     Notification of decision

   (1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.

   (2) Notification of a decision to refuse an application for a visa must:

   (a) if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa — specify that criterion; and

   (b) if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa — specify that provision; and

   (c) unless subsection (3) applies to the application — give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and

   (d) if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500 — 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)     This subsection applies to an application for a visa if:

   (a) the visa is a visa that cannot be granted while the applicant is in the migration zone; and

   (b) this Act does not provide, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.

   (4) Failure to give notification of a decision does not affect the validity of the decision.

   (5) This section does not apply to a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.

   Note: Sections 501C and 501G provide for notification of a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.

10. The notification letter and the decision record of 30 April 2010[16] complied with the requirements of s.66(2) of the Migration Act. In particular, the documents:

    a)specified the criterion (namely regulation 572.223(2)(a)(i)(B)) that Mr Rahman did not satisfy;

    b)gave written reasons why the criterion was not satisfied (namely Mr Rahman’s failure to provide evidence of his financial capacity);

    c)stated that Mr Rahman had the right to have the decision reviewed, the time within which an application for review may be made, that Mr Rahman was entitled to apply for review and the locations of the registries at which his application could be lodged.

    [16] at CB 17-22

11. Regulation 2.16 of the Regulations[17] prescribed the way in which the Minister was required to notify an applicant of a refusal to grant a visa. It provided relevantly as follows:

    2.16 Notification of decision on visa application

    (1) For subsections 66 (1) and 501G (3) of the Act (which deal with giving notice of decisions), this regulation sets out the way of notifying a person of a decision to grant or refuse to grant a visa. ...

    [17] Compilation prepared on 19 April 2010, taking into account amendments up to SLI 2010 No 71

    Refusal to grant visa

    (3) 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.

    Note      If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.

12. Section 494B of the Migration Act provided the methods by which the Minister gives documents to a person. For the purposes of this application, the relevant provisions are as follows:

    494B     Methods by which Minister gives documents to a person

    Coverage of section

    (1) For the purposes of provisions of this Act or the regulations that:

    (a) require or permit the Minister to give a document to a person (the recipient); and

    (b) state that the Minister must do so by one of the methods specified in this section;

    the methods are as follows. ...

    Dispatch by prepaid post or by other prepaid means

    (4)Another method consists of the Minister dating the document, and then dispatching it:

    (a)within 3 working days (in the place of dispatch) of the date of the document; and

    (b)by prepaid post or by other prepaid means; and

    (c) to:

    (i)      the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or

    (ii)     the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; or

    (iii)   if the recipient is a minor – the last address for a carer of the minor that is known by the Minister.

13. It is apparent from the face of the notification letter of 30 April 2010[18] that the notification was posted by registered post (which has been held to be a form of prepaid post[19]), and was addressed to the residential address given in the application form submitted by Mr Rahman[20].

    [18] CB 17-18

    [19] see Minister for Immigration v Singh (2000) 60 ALD 667; [2000] FCA 377 at [29]; SZOBI v Minister for Immigration (No. 2) (2010) 119 ALD 233; [2010] FCAFC 151 at [13]

    [20] see CB 2

14. With respect to the requirement under s.494B(4)(a) of the Migration Act that the document be dispatched within three working days of the date of the document, the affidavit of Mr McLaren establishes that the document was dispatched in accordance with that requirement. In particular, the information from Australia Post establishes that “item 564413417010” (which, it is noted, corresponds with the registered post sticker on the notification letter dated 30 April 2010)[21] was “lodged with Australia Post on 03/05/2010 at our Alexandria Bulk Lodgement Facility”. I received the document as a business record under s.69 of the Evidence Act 1995 (Cth).

    [21] CB 17

15. From the evidence that the letter was “lodged” with Australia Post at the Alexandria Bulk Lodgement Facility on 3 May 2010, I infer that the document was dispatched from the Minister’s Department, at the latest, on 3 May 2010.  30 April 2010 was a Friday, and 3 May 2010 was a Monday.  The document was therefore dispatched within, at the latest, one working day of the date of the document.

16. I find that the document was given in accordance with s.494B(4) of the Migration Act. That being so, s.494C of the Migration Act provided as follows:

    (1) This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A). ...

    Dispatch by prepaid post or by other prepaid means

    (4)If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:

    (a) if the document was dispatched from a place in Australia to an address in Australia — 7 working days (in the place of that address) after the date of the document; or

    (b)in any other case—21 days after the date of the document.

17. As the document was dispatched from a place in Australia to an address in Australia, Mr Rahman was taken to have received the document seven working days after the date of the document, that is on 11 May 2010.

18. The delegate's decision was an MRT-reviewable decision under s.338(2) of the Migration Act (as that provision was at the time of the decision). Under s.347(1)(b)(i) of the Migration Act and regulation 4.10(1)(a) of the Regulations at the time of the delegate's decision, the period in which an application for review of the delegate's decision had to be made was within 21 days after the day on which the notice was received. Given that the notification of the delegate's decision was taken to have been received on 11 May 2010, Mr Rahman would have had to apply for review by 1 June 2010. The application was not received until 5 August 2015, which is clearly well outside the prescribed time.

19. Mr Rahman asserts that he should have been notified of the visa refusal by email.  However, as was held by Buchanan J in Minister for Immigration Protection v Kim[22], notwithstanding that the visa applicant in that case had (as in the present matter) authorised communication from the Minister’s Department by email and had given an email address for that purpose, it remained open for the Department to communicate with the visa applicant at the last residential address provided[23].

    [22] (2014) 220 FCR 494

    [23] see [42] (citing Haque v Minister for Immigration (2010) 221 FCR 289) and [46]

20. Mr Rahman was notified of the delegate's decision in accordance with the Migration Act and Regulations, and the Tribunal was correct to find that it did not have jurisdiction to hear the application for review of the delegate's decision.

21. Whether or not the outcome was fair to Mr Rahman, the law was correctly ascertained and applied by the Tribunal.   

22. I will order that the application be dismissed.

23. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale.  Mr Rahman indicated that he would wish to exercise his rights of appeal generally. 

24. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,825 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding thirty-two (32) thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 17 March 2016