Rawal v Minister for Immigration
[2012] FMCA 71
•9 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RAWAL v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 71 |
| MIGRATION – Review of Migration Review Tribunal decision – application for student (Temporary) class TU visa – where application refused on ground that IELTS test not taken prior to application – where applicant booked test at time application was being processed – where applicant sent test results upon their receipt – where decision made prior to receipt of test results – where applicant sent notification by registered post – whether notice delivered – whether applicant notified of decision – where applicant, on being notified in person, applied for review of decision after 28 day limitation period – where MRT held no jurisdiction to hear review – whether jurisdictional error. |
| Migration Regulations 1994, reg.573.223 Migration Act 1958 (Cth), ss.494B, s.494C(4) |
| Berenguel v Minister for Immigration and Citizenship (2010) 84 ALJR 251 SZOBI v Minister for Immigration & Anor HCATrans 347 |
| Applicant: | KAPIL RAWAL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1476 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 21 October 2011 |
| Date of Last Submission: | 14 December 2011 |
| Delivered at: | Sydney |
| Delivered on: | 9 February 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Young |
| Solicitors for the Applicant: | Shamser Thapa |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1476 of 2011
| KAPIL RAWAL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
If one was ever to wish a demonstration of the adage that hard cases make bad law then this is such a case.
By way of an undated document received by the Department of Immigration and Citizenship on 1 December 2010 Mr Kapil Rawal, a citizen of Nepal applied for a student (Temporary) Class TU visa. At the time he made the application he was enrolled in or had been offered a place that had been specified as a type of course for a sub-class 573 visa. Not all of the documentation that would have been necessary for Mr Rawal’s visa to be granted was supplied with that application. On 5 January 2011 he sent a letter to someone called “Merian” at the email [email protected] providing some additional documentation including relevantly for this matter an IELTS booking confirmation. That confirmation was relevant because it was needed in order to enable Mr Rawal to satisfy Reg.573.223 of the Migration Regulations 1994[1] that he had proficiency in English appropriate to his proposed course of study. The applicant’s proficiency would be certified by his results in the IELTS test. It is common ground that if the results of the test were known before the delegate made his or her decision then it was not necessary for the results to accompany the application. Mr Rawal had booked his IELTS test for 15 January 2011 and expected that no decision on his application would be made before the results of the test, which were due on 25 January 2011, were made known to him so that he could advise the case officer. In the email of 5 January, which in part responded to a request from the case officer for IELTS details, Mr Rawal wrote:
“And about the IELTS report I will mail the result as soon as I get it. My exam date is 15.01.2011. If you need any further information regarding my document please mail me.”
[1] “Regulations”
Although the court now has an affidavit filed on 14 December 2011 from the Minister’s delegate she does not explain whether or not she received that email. But as a copy of it is produced in the court book one can only assume that it was received.
On 25 January 2011 the delegate made a decision to refuse the applicant his visa. The ground was that he did not satisfy Reg.573.223:
“The applicant was required to provide evidence they met the English language requirements of Schedule 5A for the assessment level to which they are subject. The applicant was asked to provide this information and was given 28 days to respond to the request. The applicant has been unable to provide evidence that their English language proficiency meets the requirements of the legislation, as required under schedule 5A, for the assessment level to which they are subject.
In view of this information, I as the delegate am not satisfied that the applicant is a genuine applicant for temporary entry and stay as a student.” [CB 34]
There was annexed to the letter an extract from Reg.573.223 and also the Schedule 5A requirement that was not satisfied. The relevant ones being Clause 1(a) or 1(aa):
“(1) The applicant must give evidence that one of the following applies:
(a)the applicant:
(i)will not undertake an ELICOS before commencing his or her principal course; and
(ii)achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 6.0 or the required score in an English language proficiency test that is specified in a Gazette Notice for clause 5A102;
(aa)the applicant:
(i) has achieved, in an IELTS test that was taken less than 2 years before the time of making the application, an Overall Band Score of at least 5.5 or the required score in an English language proficiency test that is specified in a Gazette Notice for clause 5A102; and
(ii) has a certificate of enrolment in a foundation course that is to be undertaken before commencing the applicant’s principal course.”
It is now settled that the words “in an IELTS test that was taken less than 2 years before the time of making the application” includes a test taken after the application and before the decision. In Berenguel v Minister for Immigration and Citizenship,[2] French CJ, Gummow and Crennan JJ opined:
“The requirement in reg 1.15B that the requisite test has been conducted "not more than 2 years before the day on which the application was lodged" is susceptible of the construction that the test was conducted no earlier than two years before the application was lodged. So construed, it does not require that the test has to be conducted before the application is lodged. That requirement can only be imposed by some direct operation of the undefined heading "Criteria to be satisfied at time of application".
Although cl 885.213 is part of the group of clauses headed "Criteria to be satisfied at time of application", the heading does not connect grammatically to its terms. Applying s 13 of the Acts Interpretation Act, it may be regarded as "part of the regulations". It may therefore inform their construction. But the text of Pt 885 does not support any general conclusion that the criteria in Pt 885 speak exclusively to satisfaction at the time of application. For example, cl 885.212 reads:
"The Minister is satisfied that the applicant has applied for an assessment of the applicant's skills for the nominated skilled occupation by a relevant assessing authority." (emphasis added)
Moreover, in this case, the construction for which the Minister contends leads to such plain unfairness and absurdity that it is not to be preferred. The alternative construction for which the plaintiff contends does not compromise the purpose of the Migration Regulations. There is nothing to prevent relevant information being submitted to the Minister after lodgement of the application. Indeed, s 55 of the Act expressly provides for that to be done and requires the Minister to have regard to such information. The Act specifically provides that the Minister may have regard to up-to-date information and, where the purpose of the relevant criterion is to ensure that the standard of English language competency is recently ascertained, a construction which would deprive him of the most recent information seems to be antithetical to that purpose.” [emphasis added]
[2] (2010) 84 ALJR 251.
Mr Rawal received the results of his IELTS test on 28 January and on the same day he sent an email to Ms Bautista attaching the result. The result gave the applicant an overall band score sufficient to meet the requirements of Schedule 5. The email was acknowledged by way of an email dated 28 January 2011. That email said:
“Thank you for emailing the NSW Onshore Student Visa Processing Centre.
This email is to confirm that the processing centre has received your email.
You will be notified of the outcome of your student visa application, otherwise your case officer may contact you regarding any queries they may have.”[3]
Although the email stated that the applicant would be notified of the outcome of his student visa application, a decision had already been taken, and allegedly, sent to him.
[3] [CB 67]
The applicant’s evidence, which is not dispute on this point, is that he did not receive notification of the decision. Because he had not heard from the department he went into the department office on 18 April 2011. On that date he was told that a decision was made on 25 January and handed a copy. He immediately sought review of the decision from the Migration Review Tribunal. In its short decision concluding that it had no jurisdiction to hear the matter the Tribunal set out the relevant law:
“[6]The Tribunal’s jurisdiction arises if an application is properly made under s.347 of the Act for review of an MRT-reviewable decision: s.438 of the Act. Section 338 of the Act and r.4.02(4) of the Migration Regulations 1994 (the Regulations) set out the various decisions that are MRT-reviewable decisions. A decision to refuse to grant a Student (Temporary) (Class TU) visa under s.65 of the Act is covered by s.338(2). Section 347(1)(b) requires an application for review to be given to the Tribunal within the prescribed period. The prescribed periods are set out in r.4.10 of the Regulations and commence on the day on which the applicant is validly notified of the decision.
[7]In respect of an applicant who has applied for review of an MRT-reviewable decision covered by s.338(2) and is not in immigration detention when notified of the delegate’s decision, the application for review must be lodged at a registry of the Tribunal within a period not later than 21 days after the day on which notice is received: s.347(1)(b)(i) and r.4.10(1)(a). Thus, notification of the decision provides the reference point for the commencement of the prescribed period provided for in s.347(1)(b)(i) and r.4.10(1)(a). There is no provision for an extension of time. An application sent to the Tribunal by post or by fax or other electronic means is taken to be given to the Tribunal when it is received at a registry of the Tribunal: r.4.10(5) and (6).
[8]The provisions relevant to this matter that deal with notification of a decision to refuse to grant a visa are contained in ss.66, 494B, 494C and 494D of the Act and r.2.16 of the Regulations.
[9]Section 66(1) provides that when the Minister grants or refuses 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.
[10]One of the methods specified in s.494B consists of the Minister dispatching the document within 3 working days of the date of the document by prepaid post or other prepaid means to the last address for service of the last residential or business address provided to the Minister by the recipient for the purpose of receiving documents: s.494B(4). If a document is given to a person by this method and the document was dispatched from a place in Australia to an address in Australia, the person is taken to have received the document 7 working days (in the place of the address) after the date of the document: s.494C(4)(a). This will be so even if the document was never in fact received. Therefore, if the notice of a decision to refuse to grant a visa was sent in accordance with s.494B, from a place in Australia to an address in Australia, the prescribed period within which a review application must be lodged with the Tribunal commences 7 working days after the date of the notice.”[4]
And in its findings and reasons concluded:
[4] [CB 72-73]
“[16]The Tribunal finds that the applicant is seeking review of an MRT reviewable decision covered by s.338(2) and that the applicable prescribed period is 21 days, starting when the applicant was validly notified of the decision in accordance with the Act: s.347(1)(b)(i) and r.4.10(1)(a).
[17]As the decision notice was sent by prepaid registered post, the Tribunal made enquiries with the Department to determine whether the letter was sent within 3 working days. Converga, which provide mail and distribution services for the Department, responded on 11 May 2011 and confirmed that the decision notification was dispatched by prepared registered post on 27 January 2011.
[18]The Tribunal is satisfied that the contents of the delegate’s decision notice complied with the requirements of s.66(2).
[19]The material before the Tribunal indicates that the applicant did not give the Minister written notice under s.494D of the name and address of an authorised recipient and that the decision notice, dated 25 January 2011, was sent by prepaid post on 27 January 2011 from a place in Australia to the applicant at an address in Australia, being the last residential address provided to the Minister by the applicant for the purposes of receiving documents.
[20]The Tribunal finds that the decision notice was dispatched within 3 working days of the date of the letter to the correct address, in accordance with s.66(1) and s.494B(4). Therefore, the applicant is taken to have received the notice on 4 February 2011, being 7 working days after the date of the notice.
…
[23]The Tribunal has considered the representative’s submissions and the applicant’s statutory declaration but does not consider that these provide any basis for accepting the application for review lodge don 19 April 2011. The Tribunal notes that the applicant and his adviser in their submissions made reference to the DIAC email correspondence dated 28 January 2011. Based on the contents of this email, it would appear that it was a non-case specific general email message generated by the system acknowledging the receipt of a correspondence from the applicant. In any case, once an applicant has been validly notified of the primary decision, the application for review must be lodged with the Tribunal within the relevant prescribed period. The Tribunal does not have any discretion to accept applications lodged outside the prescribed period.
[24]The Tribunal is satisfied on the evidence before it that the decision notice was posted to the applicant on 27 January 2011 in accordance with s.66 of the Act.
[25]The Tribunal finds that the applicant was properly notified of the delegate’s decision and is taken to have been notified on 4 February 2011. Therefore, the prescribed period of 21 days within which the application for review could be lodged ended on 25 February 2011.”[5]
[5] [CB 73 – 75]
The applicant filed an Amended Application on 30 October 2011 in which he sought the following orders:
“1.A writ of mandamus requiring the Second Respondent to consider and make a determination in respect of the application for review lodged by the applicant on 19 April 2011 (“the application for review”).
2.A writ of certiorari quashing, the decision of the Second Respondent dated 17 June 2011 and faxed on 20 June 2011.
3.In the alternative to 2 above, a declaration that the Tribunal has not validly exercised its jurisdiction in respect of the application for review.
4.An order that the First Respondent pay the Applicant’s costs.”
The amended grounds of the application were:
“The grounds of the Application are:
“1.The Second Respondent has not exercised its jurisdiction in respect of an MRT reviewable decision under s 338(2) of the Migration Act 1958 (“The Act”) being a decision dated 25 January 2011 (“The Decision”).
2.The Applicant was notified of the decision of the delegate on 18 April 2011 and lodged his application for review to the second respondent on 19 April 2011, being within the time prescribed under s 347(1)(b)(1) of the Act and reg 4.10(1)(a) of the Migration Regulations 1994 (“The Regulation”).
3.Notwithstanding the finding of the Second Respondent on 20 June 2011 to the contrary, the applicant was not notified of the decision by letter dated 25 January 2011 and dispatched by prepaid registered post on 27 January 2011 to the last residential address provided to the Minister by the applicant (“the last address”).”
Particulars
(a) No letter was sent on 27 January 2011 to the applicant at the last address being 20/83-87 Albert Street Hornsby, NSW, 2077.
(b) The sending of the decision by letter (if it occurred) rather than by email did not constitute sending, for the purposes of s 494B of the Act or reg 4.10.
(c) Further to (b) above, obiter statements of Gilmour J in Haque v Minister for Immigration [2010] FCA 346:
(i)Are distinguishable;
(ii)Should not be followed,
(d) If, as found by the Migration Review Tribunal, the letter was sent by registered post, such sending is not one of the methods specified in s 494B of the Act.”
The essence of the applicant’s case was that upon the documents appearing in the Court Book the court cannot be satisfied:
A. That any letter was sent to Mr Rawal by registered post.
B. That if a letter was sent to Mr Rawal by registered post that it was the decision letter.
C. That the letter was sent on 27 January 2011.
Additionally the applicant argued that sending a letter by prepaid registered post did not comply with the provisions of s.494B of the Migration Act 1958 (Cth)[6].
[6] “Act”
The matter was first heard by me on 21 October 2011 at which time it was ordered that it be adjourned for consideration after written submissions, the filing of an Amended Application and the filing of further evidence. That was concluded on 14 December 2011 with the filing of the affidavit of Ms Bautista. The status of the evidence has now changed considerably. Ms Bautista has deposed to having signed the decision letter folding it and placing it in a prepaid window envelope with a registered number 567615935016 so that the address on the letter, being 20/83 – 87 Albert St, Hornsby, was visible through the window on the envelope. She states:
“Since I became a case officer all my decision letters have been sent in window envelope with the name and address of the applicant or the agent on the left hand side of the letter.”
And later:
“There is nothing on the department file to suggest that the procedures were not followed in this matter.”
Ms Bautista stated that she retained a copy of the letter that she sent to which was affixed the registered post sticker with the number 567615935016 attached to it (Exhibit B to her affidavit). That letter clearly shows that it is addressed to Mr Kapil Rawal, 20/83 – 87 Albert Street, Hornsby, NSW, 2077. Ms Bautista then deposes to putting the envelope into an internal mail collection box from whence the standard procedure was that it would be delivered to Converga, the department’s mail management service. She stated:
“Converga records the despatch of the decision letter by recording the bar code number of the registered post sticker on the envelope, the date the decision letter was sent (being 27 January 2011 in this case) and the suburb the decision letter was sent to (being Hornsby in this case). Annexed here to and marked “C” is a copy of the relevant Converga record for the matter.”
The record does indeed show that a letter was sent to Mr Kapil Rawal in Hornsby on 27 January 2011 and it bore a number identical to the 576 number previously referred to.
The applicant’s evidence contained in an affidavit filed on 23 November 2011 refers to some earlier evidence filed by the respondent which indicated the actual delivery of the letter. This letter, contained in an affidavit of the applicant, shows a document produced by Australia Post called “proof of delivery browser” which refers to the registered letter barcode number and a date/time of scan event being 13.58 on 18 February 2011. The document shows that the letter was signed for by a Mr R Tadros said to be a member of the household. The applicant states in his affidavit that he does not know anybody by the name of R Tadros who appears to have signed the form and that the form does not show the address at which the letter was delivered.
As the applicant will be aware from advice doubtless given to him by his legal advisors the various sections of the Act which deal with the notification of a decision are deeming provisions. The relevant parts of s.494B are:
“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.”
The relevant provisions of s.494C are:
“When a person is taken to have received a document from the Minister
(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.”
I am satisfied from the evidence of Ms Bautista that a letter addressed to the applicant at his last residential address provided to the Minister, being the residential address provided in the application, was despatched to him within three days of the decision in accordance with the provisions of s.494B(4). I do not know whether the letter was delivered to Mr Rawal’s address, it would appear not. But that is not the test. It is deemed to have been so delivered by the provisions of s.494C(4). Having been deemed delivered Mr Rawal was required to file an application for review of that decision within twenty-one days expiring on 25 February 2011, as found by the Tribunal.
Insofar as the applicant argues that sending a letter by registered post does not comply with the provisions of s.494B I would refer to the transcript of the refusal by the High Court of special leave to appeal in SZOBI v Minister for Immigration & Anor[7]. It commences as follows:
“Mr Owens:Your Honours the issue raised by this application is whether a method commonly used by the Minister to notify visa applicants that their application has been unsuccessful is a method of notification that is authorised by the Migration Act. This is an important question because when an authorised method of notification is used, the Migration Act deems the visa applicant to have been notified of the Minister’s decision at a particular time regardless of whether, in fact, the decision has been bought to their attention.
Gummow J:So that the 28-day period runs?
Mr Owens:It does, your Honour, yes. The date of notification exactly is important because the time period which cannot be extended runs from the date of deemed notification. Put more concretely, the issue in this case is whether the use of registered post conforms with the method set out in section 494B(4) of the Migration Act.”
[7] HCATrans 347 (9 December 2011)
After argument, including reference to decided cases, Gummow J concluded:
“Counsel for the appellant has put all that could be put in favour of the construction of s.494B of the Migration Act 1958 (Cth) for which he contends. Nevertheless, there are insufficient prospects of success on an appeal to warrant a grant of special leave. Special leave is refused with costs.”
In these circumstances it seems that however unfair it might appear that a person, who has all the qualifications to enable him to obtain the visa that he applied for and who in normal circumstances had done everything he could to enable the grant of that visa, has not had the opportunity for a merits review of what appears to be a premature decision I regret that I am unable to find any ground upon which the Tribunal fell into jurisdictional error in asserting that it had no jurisdiction to hear that review. The application is dismissed. The Applicant must pay the First Respondent’s costs which I assess in the sum of $4,500.00.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 9 February 2012
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