Sheung v Minister for Immigration

[2018] FCCA 750

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHEUNG & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 750

Catchwords:
MIGRATION – Application for Partner (Residence) (Class BS) subclass 801 visa – refusal – review of Migration Review Tribunal decision.

MIGRATION – Whether notifications of refusal concerning two visa applicants’ visa applications, which had been made in one combined visa application, could be made in one letter or whether two notification letters were required.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, ss.52, 66, 338, 347, 474, 494B, 494C

Migration Regulations 1994, regs.1.15A, 2.08A, 2.16, 4.10

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

First Applicant: HEUNG CHING SHEUNG

Second Applicant: YAT FU CHIU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2575 of 2014

Judgment of: Judge Cameron

Hearing date: 21 March 2018

Date of Last Submission: 21 March 2018

Delivered at: Sydney

Delivered on: 29 March 2018

REPRESENTATION

Counsel for the Applicants: Mr L. Karp

Solicitors for the Applicants: Proactive Legal

Counsel for the First Respondent: Mr H. Bevan

Solicitors for the Respondents: Minter Ellison

ORDERS

1. As to the first applicant:

   (a)a writ of certiorari issue bringing into this Court to be quashed the decision of the second respondent dated 22 August 2014; and

   (b)a writ of mandamus issue directing the second respondent to determine according to law the first applicant’s application made to it on 11 December 2013.

2. As to the second applicant, the application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2575 of 2014

HEUNG CHING SHEUNG

First Applicant

YAT FU CHIU

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The first applicant, Ms Sheung, is a citizen of China who arrived in Australia on 29 October 2007.  In 2010 she married an Australian citizen, Mr Robin Fekonia, and on the basis of that marriage applied for partner visas on 31 March 2010.  Such visas consist of a temporary partner visa, the Partner (Temporary) (Class UK) subclass 820 visa, and later a permanent partner visa, the Partner (Residence) (Class BS) subclass 801 visa. 

2. On 23 February 2011 Ms Sheung was granted a temporary partner visa.  At some later point her son, Mr Chiu, who is the second applicant in this proceeding, was included in the second stage of her application concerning a permanent partner visa.

3. On 3 December 2013 the application for permanent partner visas for the two applicants was refused by a delegate of the first respondent (“Minister”).  Ms Sheung subsequently applied to the Migration Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of the delegate’s decision.  The initial application did not include Mr Chiu but on 6 January 2014 Ms Sheung filed a further review application which named him as a review applicant.

4. On 22 August 2014 the Tribunal affirmed the delegate’s decision to not grant Ms Sheung a permanent partner visa. As for Mr Chiu’s application, the Tribunal found that it did not have jurisdiction as his application had not been lodged within the prescribed period. The applicants have now applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

5. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

6. The Minister conceded that, when considering pursuant to reg.1.15A(3)(d)(iii) of the Migration Regulations 1994 (“Regulations”) “the degree of companionship and emotional support that the persons draw from each other”, the Tribunal had erred by failing to consider a significant and cogent piece of evidence. That evidence was the Psychological Assessment Report of a Dr John Jacmon dated 25 January 2014 which, amongst other things, addressed the continuing support given by Ms Sheung to Mr Fekonia. Consequently, the Tribunal’s decision in relation to Ms Sheung will be set aside and Ms Sheung’s matter remitted to the Tribunal for consideration according to law.

7. However, for the reasons which follow, the application will be dismissed as far as it relates to Mr Chiu.

RELEVANT LEGISLATION

Addition of applicants to pending visa application

1. Regulation 2.08A of the Regulations provides:

   2.08A Addition of certain applicants to certain applications for permanent visas

   (1)     If:

   (a)a person (in this regulation called the original applicant) applies for a permanent visa of a class for which Schedule 1, including Schedule 1 as it applies in relation to a particular class of visa, permits combined applications; and

   (b)after the application is made, but before it is decided, the Minister receives, in writing and in accordance with Division 2.3, a request from the original applicant to have:

   (i)     the spouse or de facto partner; or

   (ii)     a dependent child;

   of the original applicant (the additional applicant) added to the original applicant’s application; …

   …

   then:

   (e)the additional applicant is taken to have applied for a visa of the same class; and

   (f)     the application of the additional applicant:

   (i)     is taken to have been made on the later of:

   (A)the Minister receiving the request; and

   (B)the additional applicant charge (if any) being paid; and

   (ii)     is taken to be combined with the application of the original applicant; and

   (iii)   is taken to have been made at the same place as, and on the same form as, the application of the original applicant.

Consequences of addition of new applicants to visa applications

1. Relevantly for this proceeding, one of the consequences of joining an additional applicant to another’s visa application is found in s.52(3C) of the Act, which provides:

   52  Communication with Minister

   …

   (3C)If, in accordance with the regulations, 2 or more non-citizens apply for visas together, notifications given to any of them about the application are taken to be given to each of them.

Notification of decisions to grant or refuse visas

1. Section 66(1) of the Act provides:

   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. Regulation 2.16(3) of the Regulations provides that the Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in s.494B of the Act. At all material times that section relevantly provided:

   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.

3. Section 494C specifies when such documents are deemed to have been received. Relevantly, it provided at all material times:

   494C  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

   …

Review of decision to refuse visa

1. By virtue of s.338(2) of the Act as it stood at the time of application to the Tribunal, the decision to refuse the applicants a visa was an “MRT-reviewable decision” and could be reviewed by the Tribunal.

2. Section 347(1)(b) of the Act provided that an application for review of an MRT-reviewable decision had to be made within the prescribed period. It relevantly stated:

   347 Application for review by Migration Review Tribunal

   (1) An application for review of an MRT-reviewable decision must:

   (a) be made in the approved form; and

   (b) be given to the Tribunal within the prescribed period, being a period ending not later than:

   (i) if the MRT-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—28 days after the notification of the decision; …

   However, s.347(5) also provided:

   (5) Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of MRT-reviewable decisions (which may be decisions that relate to non-citizens in a specified place).

3. In this regard, reg.4.10(1)(b) of the Regulations relevantly provided as follows:

   4.10 Time for lodgment of applications with Tribunal (Act, s 347)

   (1) For paragraph 347(1)(b) of the Act, the period in which an application for review of an MRT-reviewable decision must be given to the Tribunal:

   (a) if the MRT-reviewable decision is mentioned in subsection 338(2) or (7A) of the Act—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; …

BACKGROUND FACTS

Visa application

1. Mr Chiu was added as an applicant in Ms Sheung’s visa application at some point between August 2013 and the delegate’s decision on 3 December.

Review application 

1. On 11 December 2013 Ms Sheung applied to the Tribunal for a review of the delegate’s decision but, as noted earlier, Mr Chiu was not included.  On 6 January 2014 Ms Sheung lodged an amended application including Mr Chiu as a review applicant.

Tribunal’s findings and reasons

1. The Tribunal noted that Mr Chiu was a secondary applicant in Ms Sheung’s application and that Ms Sheung had been notified of the Department’s decision to refuse them visas by a letter dated 3 December 2013. The Tribunal found that under the Act Mr Chiu was taken to have been notified of the decision on 12 December 2013 and that the last date by which he could have lodged a review application was 2 January 2014. The Tribunal concluded that as it had only received his review application on 6 January 2014 his application had not been lodged within the prescribed period. Consequently, the Tribunal found that it did not have jurisdiction in Mr Chiu’s matter.

PROCEEDINGS IN THIS COURT

1. In their second further amended application the applicants relevantly alleged:

   7.The Tribunal erred in finding it has no jurisdiction to the second applicant’s review application.

   Particulars

   (a)The Tribunal erred in finding that the purported notification of refusal of the second applicant’s application for a partner visa was lawful notification to him.

   (b)The Tribunal should have found that lawful notification to the second applicant pursuant to s.66(1) of the Migration Act required that that notification be addressed to him individually, or alternatively to both he [sic] and the first applicant (given that they lived at the same address at the time of the purported notification).

   (c)The purported notification did not inform the second applicant that he could apply for review at the Administrative Appeals Tribunal.

Consideration

1. It may be accepted, as the applicants submitted, that the second applicant had been included in the first applicant’s visa application pursuant to reg.2.08A, which was quoted earlier.

2. The issue is whether time to lodge a review of the delegate’s decision concerning the second applicant ever commenced to run and so whether the Tribunal erred in concluding that time had already run out when review of the decision concerning the second applicant was sought of the Tribunal. The second applicant contended that time had not commenced to run because he had never been advised of the outcome of his visa application in a manner sanctioned by the Act.

Particulars (a) and (b)

1. The applicants’ first and second contentions were to the effect that the Minister should have sent the second applicant his own, individual notification that his visa application had been refused rather than including that information in the first applicant’s refusal letter, which had been addressed only to her. 

2. Noting that the Minister had to consider the second applicant’s application individually, the applicants submitted that s.66(1) also required individual notification of decisions on visa applications. They argued that this construction was supported by the terms of s.494B(4)(c)(i) in that it states that a notification may be posted to an applicant:

   … [at] the last address for service provided to the Minister by the recipient for the purposes of receiving documents; (emphasis added)

3. Contrary to the applicants’ submissions I consider that s.52(3C), quoted earlier, covers the present situation such that the Minister did not have to send the second applicant his own, separate notification of the decision to refuse the application to the extent that it related to him or address the refusal letter to both him and the first applicant.

4. The applicants submitted that s.52(3C) did not apply in the present case, arguing that it is a general provision dealing with communications which applies in the absence of a more specific requirement such as the one found in s.66(1). However, ss.52(3C) and 66(1) do not operate in that interlocking way. They have different, individual functions. Section 66(1) is concerned with the practical steps required to effect notification of the outcome of a visa application whereas s.52(3C) is concerned to deem a certain consequence when only one of a couple or a group of applicants who applied “together” is notified, pursuant to the procedure to be followed under s.66(1), of the outcome of the application. The fact that s.52(3C) is found in subdiv.AB (Code of procedure for dealing fairly, efficiently and quickly with visa applications) of div.3 (Visas for non-citizens) of pt.2 (Arrival, presence and departure of persons), whereas s.66 is found in subdiv.AC (Grant of visas) does not compel a different conclusion, on the basis that a procedural code for dealing with visa applications must, logically, encompass the last stage of that process, namely notification of its outcome.

5. The applicants also submitted that “together” in s.52(3C) referred to parties who made their “combined” applications at the same time, rather than just in the same application. That construction would be inconvenient, which suggests that it is unlikely to be correct. Why would the Parliament provide for convenient communication with just one group of “combined” applicants rather than all of them? No obvious reason presents itself and none was advanced. I consider it unlikely and, on balance, conclude that, in context, “together” is better understood in the sense “combined”, a term which is used in reg.2.08A, rather than “at the same time”.

Particular (c)

1. The applicants’ third contention was that, in any event, the notification letter had not met the requirements of the Act in that its use of the word “you” when advising of review rights could be read as relating only to the first applicant because the letter was addressed only to her. The applicants argued in their final written submissions:

   The repeated use of the word ‘you’ in the context of the notification being addressed and sent only to Ms Sheung is at the very least ambiguous and at worst may lead to a conclusion in the mind of a secondary applicant that it is only necessary for the primary to apply for a merits review. Section 66(2)(d)(iii) of the Migration Act requires that the applicant be told that he or she can apply for review. In my submission that requires an unambiguous statement. An ambiguous statement, such as appears in the letter at CB 202, as extracted above, does not meet the requirements of s. 66(2)(d)(iii).

2. The letter was not ambiguous.  It was in three sections.  The first dealt with the first applicant’s application and, relevantly, advised review rights in that connection.  The second dealt with the second applicant’s application and, relevantly, advised review rights in that connection.  The third dealt with consequential matters, starting with where a review application might be lodged.  A reading of the letter from start to finish makes it perfectly clear that the second applicant had personal and individual appeal rights.  Read in context, the relevant use of the word “you” was not ambiguous and did not fail to advise the second applicant of his review rights.

CONCLUSION

1. The Tribunal was correct to conclude that it did not have jurisdiction to entertain the second applicant’s review application on the basis that it had been lodged out of time.  Consequently, jurisdictional error on the part of the Tribunal has not been demonstrated in that connection and the application will be dismissed as far as it relates to the second applicant.

2. As stated earlier, the Minister has conceded jurisdictional error in connection with the first applicant’s review and so the matter, as far as it relates to her, will be remitted to the Tribunal for consideration according to law.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  29 March 2018