Romero v Minister for Home Affairs
[2018] FCCA 1116
•11 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ROMERO v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 1116 |
| Catchwords: MIGRATION – Judicial review of decision made by Administrative Appeals Tribunal that it did not have jurisdiction to review decision made by delegate of the Minister for Immigration and Border Protection not to grant Partner visa to applicant – whether delegate notified the applicant by post or by email of the decision – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.66(1), 67, 338, 347, 348(1), 494B, 494C Migration Regulations 1994 (Cth), regs.2.16(1), 4.10(1)(a), 4.31 |
| Cases cited: DZAFH v Minister for Immigration & Anor [2017] FCCA 387 |
| Applicant: | MORRIS OSCAR ROMERO |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 91 of 2018 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 2 May 2018 |
| Date of Last Submission: | 2 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 11 May 2018 |
REPRESENTATION
| Applicant in person |
| Solicitors for the Respondent: | Mr J Pinder of MinterEllison |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 91 of 2018
| MORRIS OSCAR ROMERO |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The question in this application for judicial review is whether the second respondent (Tribunal) correctly concluded it has no jurisdiction to review the decision made by a delegate of the first respondent not to grant the applicant a Partner (Residence) (Class BS) (subclass 801) visa (Partner visa).
The delegate’s decision is recorded in a document titled “Decision Record” (Decision) dated 20 October 2017.[1] The applicant lodged his application for review by the Tribunal on 23 November 2017.[2] The Tribunal was of the view that its jurisdiction to review the Decision could arise only if the applicant applied for review of the Decision within 21 days after the applicant was notified of the Decision; but the applicant was notified of the Decision more than 21 days before the applicant applied to the Tribunal for review.
[1] CB157
[2] CB176-178
Statutory provisions
The Decision is a “Part 5-reviewable decision”, as that expression is defined in s.338 of the Migration Act 1958 (Cth) (Act). That means the Tribunal would have come under an obligation to review the Decision under s.348(1) of the Act if the application the applicant made to the Tribunal on 23 November 2017 could be said to have been “properly made under” s.347 of the Act.
An essential element of an application’s being “properly made under” s.347 of the Act is the requirement prescribed by s.347(1)(b) of the Act, namely, that an application for review of a Part 5-reviewable decision must be made within the “prescribed period”.[3] The period for making an application for review of the class of Part 5-reviewable decisions of which the Decision is a member has been prescribed by reg.4.10(1)(a) of the Migration Regulations 1994 (Cth) (Regulations). It is the period that “starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received”.
[3] SZQVV v Minister for Immigration and Citizenship [2012] FCA 871, at [55] where Greenwood J, speaking of s.414 of the Act (being equivalent to s.348 of the Act), said: “The enlivening of the jurisdiction is dependent upon the jurisdictional fact of whether the application was given to the Tribunal within the prescribed statutory time.”
The word “receives notice of the decision” directs attention to s.66(1) of the Act. That subsection 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”. Section 66 must be read with s.67(1) of the Act which provides, among other things, that a decision to refuse to grant a visa is taken to be made by the Minister causing a record to be made of the decision. The effect of s.67(1) of the Act, therefore, is to require a decision made by the Minister not to grant a visa to be recorded in a document; and that the requirement under s.66(1) of the Act that the Minister notify the applicant of the Minister’s decision not to grant a visa necessarily implies that the notification is to be effected by the Minister giving the applicant the document recording the Minister’s decision.
This is borne out by reg.2.16(1) of the Regulations. It provides that, for the purposes of s.66(1) of the Act, reg.2.16 of the Regulations “sets out the way of notifying a person of a decision to grant or refuse to grant a visa”. Paragraph 3 of reg.2.16 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”. Section 494B specifies the methods by which the Minister, where required or permitted by the Act or the Regulations to do so, must give a document to a recipient. The effect of these provisions, therefore, is that the Minister must notify the applicant of his or her decision refusing to grant the visa by recording the decision in a document and giving the document to the applicant by one of the methods prescribed by s.494B of the Act.
Section 494B of the Act specifies a number of methods, two of which are relevant to the application before me. The first is the method specified by s.494B(4) which:
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 second method is that specified by s.494B(5) of the Act which (relevantly):
consists of the Minister transmitting the document by:
(a)fax; or
(b)email; or
(c)other electronic means;
to:
(d)the last fax number, email address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents . . .
Section 494C of the Act specifies the time by which the person to whom notification of the decision refusing to grant a visa has been given using the methods prescribed by s.494B of the Act is to be taken to have received the notification. Where notification has been given by the dispatch of a document by the method prescribed by s.494B(4) of the Act then, under s.494C(4), if the document was dispatched from a place in Australia to an address in Australia, the person to whom the notification was given is taken to have received the document 7 working days after the date of the document and in the place of address. Where notification has been given by the method prescribed by s.494B(5) of the Act then, under s.494C(5), the person is taken to have received the document at the end of the day on which the document is transmitted.
From this summary of the relevant provisions, it will be seen that whether or not the applicant in the case before me made his application for review by the Tribunal within 21 days of his being notified of the Decision depends on what the evidence before me reveals about whether the Decision was notified to the applicant, whether it was notified to the applicant using one or more of the methods specified by s.494B of the Act and, if so, when, as a result of the application of the deeming provisions specified by s.494C of the Act, the applicant is to be taken to have been notified of the Decision.
Evidence and findings of fact
The starting point is the contact details the applicant provided in his application for the Partner visa. The contact details the form requested the applicant to provide are for the most part set out in the section of the form headed “Part C — Your details”. In that part of the form:[4]
a)in the box under the words “Your current residential address”, the applicant specified an address in New South Wales (applicant’s residential address);
b)in the box which appears under the words “Address for correspondence”, the applicant included the words “AS ABOVE”;
c)under the heading “Address for correspondence for processing of Second Stage visa” the applicant placed a tick in a box next to which appear the printed words “Use contact nominated at Part K”; and
d)after the printed question: “Do you agree to the department communicating with you by fax, email, or other electronic means?” the applicant placed a tick in a box that appears after the word “Yes”, and in the box positioned next to the words “E-mail address” the applicant included an email address (applicant’s nominated email address).
[4] CB2
The ticking of the box that appears next to the words “Address for correspondence for processing of Second Stage visa” required the applicant to complete the details contained in that part of the form which is headed “Part K – Options for receiving written communications”.[5] In that section the applicant ticked the box after the word “Myself” which appeared under the words “All written communications about this application should be sent to: (Tick one box only)”.
[5] CB15
The effect of the manner in which the applicant completed these parts of the application for a Partner visa is that the applicant indicated, first, that all written communications about the “processing of Second Stage visa” should be sent to the applicant; second, that the address for correspondence was the applicant’s residential address; and, third, the Department of Immigration and Border Protection (Department) could communicate with the applicant by email to the applicant’s nominated email address.[6]
[6] The expression “Second Stage visa” refers to the fact that an application for a Partner visa can proceed only after the applicant has applied for and has been granted a Partner (Temporary) (Class UK) (subclass 820) visa (820 visa). By decision record dated 26 May 2015 the applicant was granted an 820 visa (CB138)
Next it is necessary to refer to three documents that are in evidence. The first is a file copy of what purports to be a letter dated 26 May 2015 from the Department addressed to the applicant at the applicant’s residential address stating that the applicant had been granted a Partner (Temporary) (Class UK) (subclass 820) visa.[7] The file copy contains the words “Transmission method Email sent to [applicant’s nominated email address]”. The second document is a file copy of what purports to be a letter dated 6 December 2016 addressed to the applicant at the applicant’s residential address requesting further information in relation to the applicant’s application for a Partner visa.[8] This copy contains the words “Transmission method Email sent to [applicant’s nominated email address]”. The third document is a file copy of a purported letter dated 7 September 2017 addressed to the applicant at the applicant’s residential address.[9] This copy contains the words “Transmission method Post”.
[7] CB136-137
[8] CB142
[9] CB149
It was submitted by Mr Pinder, who appeared for the Minister, that although there is evidence on the basis of which I could find that letters to the effect of the file copies of the letters I have identified in the previous paragraph had been sent to the applicant, it was not necessary for me to make any findings about whether the letters had been sent. I agree. To the extent the purported letters record any decisions, the application for review the applicant made to the Tribunal did not relate to any decisions that may have been recorded in these letters; the application for review relates to the Decision. It is therefore necessary to refer to the evidence concerning the notification of the Decision.
The Decision is referred to in a letter dated 20 October 2017 (Decision Letter).[10] There is evidence that the Decision Letter and the Decision were sent both by post and by email. The evidence in relation to the sending by post is as follows:
a)There is a copy of the Decision Letter itself, which is addressed to the applicant at the applicant’s residential address.[11]
b)There is a copy of a document that bears a number of endorsements and some handwriting.[12] These include a “Registered Post Prepaid Label” with a bar code and identification number and a box headed by the word “Return” which in turn includes a number of boxes with words printed next to each. One of the boxes contained has the word “Unclaimed” next to it, and there is a cross in that box.
c)There is an affidavit affirmed by Mr Pinder to which he attaches what he describes as a “Postal Log 23OCT2017 – VIC.PDF”. Mr Pinder deposes he received that document by email from an administrative support officer at the Minister’s department. The document is headed “DIBP OUTGOING REGISTERED & EXPRESS POST REGISTER”, and is divided into four columns headed, respectively, “Date”, “RP/EP/INT”, “Reference Number”, and “Comment”. The document is also divided into a number of rows, all but one of which is redacted. The row that is not redacted contains a date (“23-10-17”), the letters “RP” in the column headed “RP/EP/INT”, a reference number, which includes all the numbers specified in the “Registered Post Prepaid Label” to which I have already referred, but prefaced with an additional four numbers; and an address, being the applicant’s residential address.
[10] CB154
[11] CB154-172
[12] CB173
I am satisfied on the basis of this evidence that the Decision Letter and the Decision were dispatched on 23 October 2017; that the dispatch occurred within three working days from the date of the Decision Letter and the Decision; the Decision Letter and the Decision were dispatched by registered post, being a form of prepaid post;[13] the Decision Letter and the Decision were dispatched to the applicant’s residential address; and, on the evidence before me, this was the last address for service the applicant provided to the Minister for the purpose of receiving communications.
[13] Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 377, at [33]: “In our judgment, therefore, the use of registered mail is a means of sending by pre-paid post a notice of a decision in compliance with s 66(1) of the Act.”
The evidence that the Decision Letter and the Decision were sent to the applicant’s nominated email address consists of three items. One is an undated document addressed to the applicant as follows (Purported Email Notification Document):[14]
[14] CB153
Dear Morris Oscar ROMERO
Please see the attached information.
Yours sincerely
[Name and position number of author of document]
Department of Immigration and Border Protection
This email and attachment(s) was sent to [applicant’s nominated email address]
The second item of evidence is statements made by the applicant in a document he submitted together with his application for review to the Tribunal. The applicant there stated he was “in the wrong by missing an email”, and that this was “a huge mistake on my behalf”.[15] The applicant explained how it was that he was unaware of the email that attached the Decision Letter and the Decision and the circumstances in which he became aware of that email. Although the applicant does not identify the email to which he refers, the inference is reasonably available, and I do infer, that the applicant is referring to an email message that consisted of the Decision Letter and the Decision. That inference is reinforced by the fact that the applicant made these statements in the context of his application for review to the Tribunal of the Decision.
[15] CB179
The third item of evidence is statements the applicant made in a letter dated 3 December 2017 to the Tribunal.[16] The applicant sent that letter in response to the Tribunal’s invitation made by letter dated 28 November 2017 that the applicant provide submissions on whether his application for review to the Tribunal was made within 21 days of the date on which the applicant was notified of the Decision.[17] The applicant stated:[18]
I’m writing to you regarding my case in which I need to prove the validation of my application. On the late afternoon of November 21st, I had to access my old email. My account was not my main email at that time, but I went back to have a look as I have an Expedia account bound to that email. My partner and I were planning a trip overseas and were looking at affordable accommodation. When I went to my old email I noticed the letter of refusal of my visa.
[16] CB201
[17] CB199
[18] CB201
If the only evidence that was before me was the Purported Email Notification Document, I would have had difficulty in accepting that document as evidence that the Decision Letter and the Decision were sent by email to the applicant. When, however, those documents are considered with the applicant’s statements to which I have referred, there can be no doubt that the Purported Email Notification Document was sent to the applicant’s nominated email address together with the Decision Letter and the Decision. It is also reasonably available to me to infer, and I do infer, that the Purported Email Notification Document, the Decision Letter, and the Decision were sent – that is, transmitted – by email to the applicant’s nominated email address on 20 October 2017. The basis of that inference is that the Purported Email Notification Document referred to “attached information”; on the evidence before me the only relevant “attached information” to which the Purported Email Notification Document could be taken to have referred is the Decision Letter which, in turn, refers to the Decision; the Decision Letter is dated 20 October 2017; the Purported Email Notification Document stated that the email was sent to the applicant’s nominated email address; and the applicant accepts he received the Decision Letter and the Decision but does not say he did not receive the Decision Letter and the Decision on the dates they bear.
Tribunal’s reasons
The Tribunal was of the view that the material before it indicated the applicant was notified of the Decision by letter dated 20 October 2017 sent by registered post to the applicant’s residential address, and by email sent to the applicant’s nominated email address.[19] Having reviewed the material before it the Tribunal found it to be clear that the delegate had notified the applicant of the Decision both by email and by post; and it was satisfied the applicant was notified of the Decision not to grant the applicant a Partner visa at the applicant’s last known address and at his last known email address in accordance with statutory requirements.[20]
[19] CB210, [4]
[20] CB210, [4]
As I have already noted, by letter dated 28 November 2017 the Tribunal invited the applicant to provide his comments on whether the applicant’s application for review was made more than 21 days after he was notified of the Decision;[21] and that the applicant provided his comments by letter 3 December 2017.[22] The Tribunal considered the applicant’s response but was of the view it had no discretion in this matter, and “it must apply the law”.[23]
[21] CB199
[22] CB201
[23] CB210-211, [6]-[7]
In his response to the Tribunal, the applicant referred to the Department having available to it the email address of his fianceé, and alternative means of contacting the applicant, such as his telephone number. The Tribunal referred to these submissions in its reasons and observed that as the applicant was the person who was applying for the Partner visa the Department was correct in communicating directly with the applicant as the visa applicant, rather than the sponsor;[24] and that the Act provides for the “Department to communicate (only) by way of documentation dispatched by prepaid post or documentation transmitted by facsimile, email or other electronic means”.[25]
[24] CB210-211, [7]
[25] CB211, [7]
The Tribunal concluded, therefore, that it had no jurisdiction to review the Department’s decision because the applicant had not made his application for review to the Tribunal in accordance with the relevant legislation.[26]
[26] CB211, [8]
Grounds of application
The applicant’s grounds of application are as follows:
Orders sought by Applicant
1, I disagree with DIBP and AAT's decision. They did not consider that I have the genuine intention to apply for subclass 820 visa application. They did not consider the fact that I had compelling reasons not to lodge my review application with AAT within 21 days. And I did try my best to seek help.
2, DIBP send all their correspondence to my email address which I finally found them all in the Junk mail. I usually do not open my Junk mail box which led to the delay for the AAT lodgment.
3, AAT should accept my review application and allow me to continue it with AAT.
The Grounds of the Application are:
[4] 1, I am an American citizen and applied for subclass 820 under the sponsorship of my Australian wife. I did provide with DIBP and AAT with my correct contact email address, however they sent to my Junk mail.
[5] 2, DIBP contacted my sponsor few times a few years ago and they advised my sponsor to check her emails for further documents from them, however my sponsor has never received any mails from them. I fell so innocent with the delay of AAT review.
[6] 3, It is unfair for AAT not to accept my review application, I wish federal court could give me a fair decision.
The first ground makes two claims. The first is an expression of disagreement with the Tribunal’s decision. The second is the Tribunal failed to consider two matters, namely, the applicant’s having a genuine intention to apply for a Partner visa, and the Tribunal’s failure to consider the explanation he had given for not having lodged his application within the prescribed time.
An expression of disagreement with a decision of the Tribunal usually is an impermissible appeal to merits review. In the circumstances of this case, however, the applicant’s disagreement relates to a jurisdictional fact, namely, whether he lodged his application for review of the Decision more than 21 days after he had been notified of the Decision;[27] and it is within the jurisdiction of this Court to determine for itself whether, as the Tribunal found, the applicant was notified of the Decision more than 21 days before he applied to the Tribunal for review of the Decision.
[27] SZQVV v Minister for Immigration and Citizenship [2012] FCA 871, at [55] where Greenwood J, speaking of s.414 of the Act (being equivalent to s.348 of the Act), said: “The enlivening of the jurisdiction is dependent upon the jurisdictional fact of whether the application was given to the Tribunal within the prescribed statutory time.”
I have already identified the evidence relating to the sending of the Decision Letter and the Decision by prepaid post and by email; and I have made findings on the basis of that evidence. It only remains for me to determine, on the basis of my findings and the application of s.494C(4) and s.494C(5) of the Act, the dates on which the applicant is to be taken to have been notified of the Decision; and to determine, on the basis of the application of reg.4.10(1)(a) of the Regulations, the date by which the applicant was required to lodge his application to the Tribunal for review in relation to the Decision.
I have found that the Decision Letter and the Decision were dispatched on 23 October 2017; that this occurred within three working days from the date of the Decision Letter and the Decision; the Decision Letter and the Decision were dispatched by registered post, being a form of prepaid post;[28] the Decision Letter and the Decision were dispatched to the applicant’s residential address; and that was the last address for service the applicant provided to the Minister for the purposes of receiving documents. The consequences of these findings is that, under s.494C(4) of the Act, the applicant is taken to have received the documents 7 working days after the date of the document. That date is 31 October 2017. That means that, under reg.4.10(1)(a) of the Regulations, the applicant was required to lodge his application in the period that started on 31 October 2017 and ended “at the end of 21 days after” 31 October 2017. That day is 21 November 2017, which is two days before the day on which the applicant lodged his application for review, namely, 23 November 2017.
[28] Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 377, at [33]: “In our judgment, therefore, the use of registered mail is a means of sending by pre-paid post a notice of a decision in compliance with s 66(1) of the Act.”
Before I leave this part of my reasons, I should note that Mr Pinder drew my attention to the decision of Judge Jarrett in DZAFH v Minister for Immigration & Anor.[29] Mr Pinder submitted that on the basis of his Honour’s reasoning in that case the 21-day period in the case before me ended on 20 November 2017, not 21 November 2017. That may be so. But reg.4.31 of the Regulations, being the regulation Judge Jarrett considered in DZAFH, is different from reg.4.10(1)(a). Reg.4.31 defines the relevant period in terms of “working days, commencing on . . . the day the applicant is notified of the decision” whereas reg.4.10(1)(a) defines the relevant period as beginning “when the applicant receives notice of the decision”, and ending “at the end of 21 days after the day on which the notice is received”. Thus, Judge Jarrett’s reasoning in DZAFH is not relevant to the proper construction of reg.4.10(1)(a) of the Regulations; and his Honour’s reasoning does not require me to alter my finding that the 21 day period after day on which the applicant is taken to have received the Decision Letter and the Decision by post ended on 21 November 2017.
[29] [2017] FCCA 387
I have also found that on 20 October 2017 the Decision Letter and the Decision were transmitted by email to the applicant’s nominated email address. That means that under s.494C(5) of the Act the applicant is taken to have received the Decision Letter and the Decision on 20 October 2017.
Thus, the Tribunal was correct to conclude that the applicant made his application for review more than 21 days after the date on which the applicant was notified of the Decision and, for that reason, the Tribunal did not have jurisdiction to review the Decision. This conclusion renders irrelevant the other claim made in ground 1 that the Tribunal failed to consider the applicant’s having a genuine intention to apply for a Partner visa, and the explanation the applicant gave for not having lodged his application for review within the prescribed time. The Tribunal had no discretion to extend the 21-day period prescribed by reg.4.10(1)(a) of the Regulations. That point was made by Wigney J in Rana v Minister of Immigration and Border Protection:[30]
The Tribunal has no discretion to extend the time within which an application can be made, or to otherwise waive the time limitation or receive an application out of time.
[30] [2014] FCA 1233, at [3]
Grounds 2 and [4] state the Department sent all correspondence to the applicant’s nominated email address which the applicant found in his junk mail inbox, and that the applicant usually does not open his junk mail inbox, which is the reason that led to his delay in applying to the Tribunal for review of the Decision. Even if this is accepted as true, it affords no reason to alter the findings of fact I have already made and the conclusions that follow from those findings, namely, that the applicant lodged his application for review more than 21 days after he was notified of the Decision, and, therefore, the Tribunal did not have jurisdiction to determine the applicant’s application for review. Ground 3 is a submission that the Tribunal should accept the application for review. Given I have found the Tribunal did not have jurisdiction to consider the applicant’s application, the Tribunal could not, and I cannot compel the Tribunal, to accept the applicant’s application for review of the Decision.
Ground [5] refers to the Department having contacted the sponsor a few years ago and informing her that she should check her emails for further documents from the Department. Whether or not that is true, any such communication from the Department could not alter the operation of the provisions to which I have referred as they applied to the contact information the applicant provided to the Department in his application for a Partner visa. Ground [5], therefore, provides no ground for concluding the Tribunal was incorrect to conclude the applicant lodged his application for a review more than 21 days after he was notified of the Decision.
Finally, there is ground [6] where the applicant says it is unfair that the Tribunal concluded it had no jurisdiction. Fairness, unfortunately, is not relevant to whether an application for review of a Part 5-reviewable decision was made within the prescribed time because the Tribunal does not have any discretion to extend the 21-day period that applied to the applicant.
At the hearing before me the applicant, who is not legally represented, submitted the Department had other means of contacting the applicant, including his telephone number. That may be so. But that circumstance does not affect the operation of the provisions I have identified, given the contact information the applicant provided to the Department in his application for a Partner visa. As I have found, given the information the applicant provided to it, the Department was entitled to communicate documents to the applicant either by sending the documents by post to the applicant’s residential address or by sending documents by email to the applicant’s nominated email address. On my findings the Tribunal did both; it sent the Decision Letter and the Decision by post to the applicant’s residential address and by email to the applicant’s nominated email address.
Disposition and conclusion
The Tribunal was correct to conclude it did not have jurisdiction to review the application for review of the Decision. I propose, therefore, to order that the application be dismissed.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 11 May 2018
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