SALUJA v Minister for Immigration

[2010] FMCA 952

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SALUJA v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 952

MIGRATION – Change of address not notified to the Minister – whether applicant was properly notified – whether Minister has duty to search for a new address – failure to seek review within prescribed period – no power to extend period.

Migration Act 1958 (Cth), ss.127(2). 338(3), 347, 359, 412(1)(b), 424, 474, 476(2), 494A
Migration Regulations 1994, regs.2.55, 4.10(1)(b), 4.31(2)(b)
Acts Interpretation Act1901 (Cth), s.36

Attorney General for the State of NSW v Quin (1990) 170 CLR 1
Dhanoa v Minister for Immigration & Anor [2009] FMCA 383
Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589, 173 ALR 362 at 417
Minister for Immigration and Citizenship v Abdul Manaf[2009] FCA 963
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12
Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155
Sainju v Minister for Immigration and Citizenship & Anor (2010) 185 FCR 86
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749
SZHQG v Minister for Immigration & Anor [2006] FMCA 1275
SZJCQ v Minister for Immigration and Citizenship & Anor [2008] HCA SL 66
Tay v Minister for Immigration and Citizenship[2010] FCAFC 23
Xie v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCAFC 172

Applicant: PUNEET SALUJA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1074 of 2010

Judgment of: Turner FM

Hearing date: 23 November 2010

Date of Last Submission: 23 November 2010

Delivered at: Melbourne

Delivered on: 16 December 2010

REPRESENTATION

The Applicant appeared In Person with the assistance of an Hindi interpreter

Counsel for the First Respondent: Mr Knowles

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application for judicial review filed on 30 July 2010 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1074 of 2010

PUNEET SALUJA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The primary question in this case is whether the Migration Review Tribunal (the “Tribunal”) as found by it, lacked jurisdiction to deal with the application for review, because the application was lodged out of time?

2. The Court does not have jurisdiction to review the decision of the delegate as there was no jurisdictional error in it. [s.476(2) of the Migration Act 1958 (the “Act”)].

3. At the outset, the applicant who had the assistance of his migration agent and an interpreter, sought an adjournment to prepare written submissions – the first respondent opposed an adjournment, and the Court dismissed that application as the applicant had notice of the hearing and had failed to comply with the order of Registrar Allaway on 1 September 2010 to file and serve written submissions by

   
   

   29 October 2010. The applicant sent written submissions to the Court on 9 December 2010, the Court having reserved its decision on

   
   

   23 November 2010. The Court will not entertain those submissions.

   Re: Chief Commissioner of Police (Vic) (2005) 214 ALR 422 (Gleeson CJ et al) at [22]:

   [22] On its face, the course followed appears to depart from, and to be sharply at odds with, orderly procedures for the disposition of matters before an appellate court. In R v Theophanous,[12] the Court of Appeal of Victoria had pointed out (not for the first time) that, in an appeal, once argument had been presented at the hearing, leave is necessary before further submissions may be made, and that leave to do so will be granted only in very exceptional circumstances. [13] Yet, without leave, further evidence and further submissions were filed after argument had concluded.

   [12] (2003) 141 A Crim R 216 at 286 [204]; [2003] VSCA 78.

   [13] R v Zhan Yu Zhong [2003] VSCA 56; BC200302405 at [2]-[4]. See also Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at 330 [29]; 198 ALR 1 at 9; [2003] HCA 28.

4. The Court finds that the Tribunal was correct in finding (at Court Book “CB” 238) that the applicant is seeking review of an MRT–reviewable decision covered by s.338(3) of the Act.

5. The applicable prescribed period (for applying to the Tribunal for review) is 28 working days, starting from when the applicant was validly notified of the decision in accordance with the Act [s.347(1)(b)(i) and reg.4.10(1)(b) of the Migration Regulations 1994 (the “Regulations”)], and ending seven working days after which the notice is received [s.347(1)(b)(i) and reg.4.10(1)(b)]. There is an inconsistency between these two provisions which does not have to be resolved for the purposes of this decision as the application was made outside both time limits. The application for review was received by the Tribunal on 23 April 2010.

6. The Court finds that the contents of the delegate’s decision notice

   
   

   (CB 137) complies with s.127(2) of the Act.

7. The decision notice was sent to the applicant at “309/91D Bridge Street, Westmead, New South Wales 2145” (the “Westmead address”) (CB 137) on 10 December 2009. The applicant alleges that at that time he was living in Melbourne and had attended a course at Ozford College of Business in Melbourne (Exhibit A1). The applicant submits that he had notified his new address to Ozford which should have entered it on a database called PRISMS/ICE, and that he assumed the Minister for Immigration and Citizenship (the “Minister”) would have checked, or been made aware of, the new address from the database. The applicant admits that he did not notify a change of address to the Minister.

   The PRISMS/ICE database is a database within the Department of Education, Employment and Workplace Relations (CB 198). The Minister was not obliged to search databases outside his Department. Further, information from two sources gave the Westmead address [Form 1101 14 February 2006 (CB 55): Form 1221 dated 8 July 2008 (CB 57 - 62)].

8. The applicant was advised by letter dated 13 October 2008 that he must “advise us (the Department) in writing as soon as possible” of any “change to address and/or contact details” (CB 76). The applicant having admitted that he did not notify the Minister of his change of address, and the Court having searched the material on file, the Court finds that the Westmead address was the last address known to the Minister.

9. Sections 359 and 424 of the Act are essentially in the same terms other than that s.359 applies to the Tribunal and s.424 to the Refugee Review Tribunal. The Court refers to the following decisions:

   There is no positive obligation on the tribunal to obtain further information: see Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [43]. While s.424 of the Act provides that the Tribunal may get any information that it considers relevant in conducting the review, there is no obligation on the Tribunal to do so. The Tribunal has the power to obtain further information, it does not have a duty to investigate the applicant’s claims: SZHQG v Minister for Immigration & Anor [2006] FMCA 1275 at [33].

   In Dhanoa v Minister for Immigration & Anor [2009] FMCA 383 Driver FM stated at [34]:

   In SZIAI Flick J held that there may be circumstances in which a failure on the part of the Tribunal to make enquiries, or further enquiries, on a matter would amount to jurisdictional error.  Such circumstances will be rare.  At [25]-[26] his Honour said:

   “The circumstances in which a decision of the Tribunal should be set aside by reason of a failure to make inquiries, it is acknowledged, may be a confined category of case: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155. Wilcox J there observed at 169–70:

   ... The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. ...

   This decision was subsequently endorsed by the Full Court: Luu v Renevier (1989) 91 ALR 39. See also: Tickner v Bropho [1993] FCA 208; (1993) 40 FCR 183 at 197–8 per Black CJ. Subsequently in Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589, 173 ALR 362 at 417 Wilcox J returned to his earlier decision in Prasad and further observed:

   [214] ... It will be a relatively rare case in which a statutory decision is vitiated because of the decision-maker’s failure to make inquiries. It will need to be apparent that relevant material was readily available to the decision-maker, but ignored.

   The circumstances in which an obligation may be imposed upon an administrator to make further inquiries is thus repeatedly said to be "strictly limited": Wecker v Secretary, Department of Education Science & Training [2008] FCAFC 108 at [109] per Greenwood J (Weinberg J agreeing). And the fact that it is no part of the task of the decision-maker to make out an applicant’s case is also repeatedly recognised -- it was referred to at the outset by Wilcox J in Prasad and subsequently emphasised: eg, Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369 at [50], [2002] FCAFC 369; 127 FCR 24 at 40–1 per Gray, North and Mansfield JJ.

   Whether or not it is unreasonable not to make further inquiries may well depend upon the availability of further information and its importance to the factual issues to be resolved. It may also depend upon the subject matter of inquiry and an assessment of the comparative ability of individuals to provide or to obtain relevant information. There may thus be little (if any) scope for a duty upon a decision-maker to inquire into facts well known to an applicant and facts within his power to adduce: eg, Singh v Minister for Immigration and Ethnic Affairs (1985) 9 ALN N13. In refugee cases, reference may also be made to the comparative difficulty in some circumstances confronted by an applicant seeking refugee status and the comparative ability of decision-makers to elicit further information: cf Taylor S, Informational Deficiencies Affecting Refugee Status Determination: Sources and Solutions (1994) 13 U Tas LR 43. And an assessment as to whether further inquiries should be undertaken may also take into account the importance of a decision upon an individual -- an administrative decision-making process which impacts upon an individual’s freedom or a claimed ability to live in freedom may warrant more extensive inquiries being undertaken than one, for example, where the imposition of a modest pecuniary penalty is under consideration”.

   The Court refers to the decision of the Full Court of the High Court in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] and [26] as follows:

   “Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction [35]. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

   The first reason is that there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the Tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the Tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI's solicitors to the Tribunal's letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer's letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the Tribunal's decision was infected by jurisdictional error”.

   As a result of the above decisions the Court finds that the Minister had no duty to enquire. The change of address was known to the applicant and he should have notified the Minister of the change [Change of circumstances (CB 76.2)].

10. The Court finds that it would not have been apparent to the Tribunal that relevant material about the applicant’s address was readily available and that it ignored it (Foxtel and Prasad supra). There was nothing on the record to indicate that the address notified to the Minister had been changed or that a new address may have been elicited if a search had been made of the PRISMS/ICE database (SZIAI supra). The decision of the Tribunal is not vitiated by jurisdictional error (SZIAI supra).

11. Section 494A and reg.2.55 apply to the giving of documents to a visa holder relating, amongst other things, to the cancellation of a visa. Regulation 2.55(3) provides relevantly that the subject document be dated, and despatched within three working days of the date of decision, by prepaid post, to the last residential address, business address or post box address known to the Minister (emphasis added).

12. The decision notice (CB 137) was dated 10 December 2009, and sent by registered post to the applicant on 10 December 2009 (CB 137), to the last residential address known to the Minister.

13. The Court finds no breach of s.494A or reg.2.55. The decision notice was therefore sent to the applicant in accordance with the Act and Regulations.

14. Regulation 2.55(7) deems that if a letter is sent by prepaid post, the recipient is taken to have received it seven working days after the date of the document. The Court refers to the decision in Sainju v Minister for Immigration and Citizenship & Anor (2010) 185 FCR 86 per Justice Jacobson, p.89 at [20] in relation to the deeming provision in reg.2.55(5) to (8). The Court refers to the following passages in the decision:

    Application of reg 2.55

    49. The Federal Magistrate approached the construction of reg 2.55 in an orthodox manner by considering the language and the legislative context of the regulation. This was in accordance with well established authority: CIC Insurance Ltd v Bankstown Football Club Ltd (1987) 187 CLR 384 at 408; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69].

    50. As the learned Federal Magistrate observed, the immediate context in which reg 2.55(8) appears is as one of a series of sub-regulations which define the time of receipt of documents given by the methods prescribed in reg 2.55(3).

    51. What seems to me to be decisive is that each of the deeming provisions focuses upon the physical act of the Minister in giving the document to the person, rather than whether the document is actually received.

    52. The underlying assumption in each of the deeming provisions is that the act taken by the Minister is sufficient to bring the document to the attention of the person, regardless of whether this has actually occurred (emphasis added).

    53. Thus, when a document is handed to the person, it is assumed that the person will open the envelope and read it, regardless of whether he or she actually does. Also, when a document is handed to another person at the addressee’s residence or place of business, it is assumed that the other person will give it to the named person. So too, it is assumed that the postal system will work in the ordinary way and that the addressee will receive the document within the time stated.

    54. The same assumption is made in the deeming provision which deals with electronic communications. Thus, an email is taken to be received at the end of the day on which the Minister transmits, or sends it, to the addressee.

    55. It may be that in an unusual case there will be unfairness because the assumption which underlies the deeming provision is not fulfilled. The other person may not hand the document to the addressee, the postal system may produce inordinate delay or the email may be lost for a period of time in cyberspace. Perhaps the document will never find its way to the addressee.

    56. But the authorities dealing with deeming provisions in relation to non-electronic communications make it clear that the effect of those provisions is not to create a rebuttable presumption of fact. They are not to be read as if they were subject to a proviso that the person is not taken to have received the document if the contrary is proved: Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 (“Xie”) at [13] – [14] per Spender, Kiefel and Dowsett JJ; see also the review of the authorities by Sundberg J in Minister for Immigration and Citizenship v Abdul Manaf [2009] FCA 963 at [21] – [24]; and see Tay v Minister for Immigration and Citizenship [2010] FCAFC 23 at [16] – [19] per Dowsett, Stone and Bennett JJ (emphasis added).

    57. The same reasoning applies to the statutory deeming provision relating to electronic communications in reg 2.55(8). There is nothing in the language of the paragraph, particularly when read in its full context, or in the evident statutory or regulatory purpose, to suggest a different view. That is to say “by transmitting” means by sending and the person is taken to have received the document at the end of the day on which it is sent.

    58. The purpose of provisions such as these is to achieve administrative certainty as to whether a document has been given to a person, and as to the time at which this has occurred. It affects time limits for review of administrative decisions and may, in some instances, foreclose that possibility.

    59. In Joshi v Minister for Immigration and Multicultural Affairs [2001] FCA 1765; (2001) 116 FCR 87 at [41] – [42], Emmett J pointed to the tension between the interests of administrative certainty and an effective right of review of administrative action which is revealed in this type of provision. However, in the present case, it is not necessary to consider that question because the Federal Magistrate was not satisfied on the balance of probabilities that the email did not reach the appellant’s mailbox.

1. The Court decides that as the notification provisions of the Act and Regulations were complied with, and on the basis of the above authorities, the applicant is taken to have been notified of the decision of the delegate seven days after the notice was sent on 10 December 2009 (CB 137).

2. The fact that there may “be unfairness because the assumption that underlines the deeming provision is not fulfilled”: Sainju [55] (supra), does not result in reading the provisions “as if they were subject to a proviso that the person is not taken to have received the document if the contrary is proved”. Xie, Manaf and Tay (supra).

3. The result is that the applicant is deemed to have received notification of the decision on 17 December 2009 [s.36 of the Acts Interpretation Act 1901 (Cth)]. The applicant then had the prescribed period to apply to the Tribunal for a review [s.347(1)(b)(i) and reg.4.10(1)(b)].

4. The Tribunal has no power to extend the time limit SZJCQ v Minister for Immigration and Citizenship & Anor [2008] HCA SL 66. That decision related to an application to the Refugee Review Tribunal to extend the time limit is s.412(1)(b) of the Act and reg.4.31(2)(b). The Court decided “there is no statutory power for the Tribunal or anyone else, to extend the time limit, whatever the reasons for the default” at [33]. Similarly there is no statutory power for the Migration Review Tribunal or anyone else to extend the time limit.

5. The Court finds that the Tribunal was correct in holding that it had no jurisdiction in the matter (CB 239 at [26]).

6. The applicant complains of an unjust result. The Court refers to the following passages in Attorney General for the State of NSW v Quin (1990) 170 CLR 1 at 35:

   “The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

   The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.

   There is one limitation, “Wednesbury unreasonableness” (the nomenclature comes from Associated Provincial Picture Houses Ltd v Wednesbury Corporation), which may appear to open the gate to judicial review of the merits of a decision or action taken within power. Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined”.

   The Court does not find the decision to be so unreasonable that no repository of the power could have taken it.

7. The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.

8. The application for judicial review is dismissed.

9. If the applicant feels that an injustice had occurred he may of choose to apply to the Minister to substitute for the decision of the Tribunal, a decision that is more favourable to the applicant. Whether he does so is a matter for him.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Turner FM

Date:  16 December 2010