Silva v Minister for Immigration and Anor
[2012] FMCA 1233
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SILVA v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1233 |
| MIGRATION – Judicial review – Migration Review Tribunal – subclass 572 visa – cancellation of visa – failure to apply for review within time – reminder email sent by Department – whether there was an error of law – whether the Tribunal had no jurisdiction – whether there was a denial of a fair hearing – whether there was a denial of procedural fairness – whether the reminder email was a mere reminder or a fresh notification which extended the time for application – no error of law – no denial of fair hearing – need for administrative certainty – no denial of procedural fairness – reminder email not required by statute – no issue of procedural fairness can arise in respect of a matter not formally required – application dismissed. |
| Acts Interpretation Act 1901 (Cth), s.29(1) Human Rights and Equal Opportunity Commission Act1986 (Cth), Schedule 2 Migration Act 1958 (Cth), ss.338(3), 347(1)(b)(i), 441C(4), 494B(4) Migration Regulations 1994 (Cth), rr.4.10(1)(b), 2.55 |
| Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223 Bin Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 Kioa v West (1985) 159 CLR 550 Minister for Immigration and Citizenship v Li [2012] FCAFC 74 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 550 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Sainju v Minister for Immigration and Citizenship [2010] FCA 461 Tay v Minister for Immigration and Citizenship [2010] FCAFC 23 |
| Applicant: | SANTIAGO DIEZ SILVA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | BRG 347 of 2012 |
| Judgment of: | Burnett FM |
| Hearing date: | 13 December 2012 |
| Date of Last Submission: | 13 December 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 20 December 2012 |
REPRESENTATION
| Solicitors for the Applicant: | FLA Partners |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
Application dismissed.
Subject to any application made for any other order the applicant pay the respondent’s costs of and incidental to the application fixed in the sum of $6,471.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 347 of 2012
| SANTIAGO DIEZ SILVA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant was granted a vocational education visa to enter Australia. Subsequently, the Minister gave him notice that he was considering the cancellation of the visa and ultimately cancelled his visa. The applicant did no make application in respect of the Minister’s decision within the time provided for under the Migration Act 1958 (Cth) (the Act) and the Minister now refuses to reconsider the merits of his application. The applicant now makes such application to set aside the Minister’s decision and have the application remitted for merits review.
Background facts
On 26 August 2011, the Department of Immigration and Citizenship granted the applicant, Santiago Diez Silva, a Subclass 572 Vocational Education and Training Sector visa. On 5 January 2012 the applicant was notified by a delegate of the Minister that the Minister was considering cancelling his visa. Ultimately, on 31 January 2012 a decision was made to cancel the visa. The applicant was notified of the decision and his review rights by letter dated 31 January 2012 which was posted that day. The decision notification was returned to the Department “unclaimed.” Subsequently, by email sent 20 February 2012 at 10:42am, an officer of the Department, Sandi Daniels, wrote to the applicant informing him that his visa had been cancelled on 31 January 2012 and advising:
“…
You may still be eligible to make an application for merits review of this cancellation decision with the Migration Review Tribunal (MRT). An application for review of this decision must be made to the MRT within seven (7) working days after you are taken to have received the cancellation notification letter that was sent to you. As the cancellation decision was made on 31 January 2012 and the notification of the cancellation decision was sent to you by letter in Australia, your last date to lodge an application for review to the MRT is 20 February 2012.
…”
Ms Daniels says that this email was forwarded as a matter of courtesy and that there was no regulatory requirement upon her to do so.
The applicant says that he only became aware of the notice from reading the email of 20 February 2012 on that date at 6:42pm, by which time it was too late to attend upon the registry of the MRT and file an application for review of the decision to cancel his visa. It is not contested that he filed an application the next day. However, by its decision of 12 April 2012, the Tribunal determined that, by operation of s.338(3), s.347(1)(b)(i) of the Act and r.4.10(1)(b) of the Migration Regulations 1994 (Cth), the applicant was seeking review of an MRT reviewable decision and had only seven working days from when he was validly notified of the decision to make an application. He was deemed to have received the notice on 9 February 2012, that being seven working days after the date of notice, and allowing for a further seven working days, the last date for filing any application was 20 February 2012. The application was filed 21 February 2012 and, accordingly, the Tribunal determined that it had no jurisdiction to entertain the application and the decision to dismiss the application was ultimately made on 12 April 2012 after having received submissions from the applicant in respect of that matter. It is this decision which aggrieves the applicant.
Grounds for review
On 26 April 2012, the applicant made application to this Court for review of the Tribunal’s decision of 12 April 2012. Although the application outlined six bases for review, in its written outline filed in support of the application four contentions were advanced:
a)The Tribunal erred in law in finding the Tribunal had no jurisdiction under the Act in dealing with the application for review because the application had been filed out of time;
b)The applicant was denied a fair hearing because the Tribunal failed in its exercise of its inquisitorial powers to obtain information that may have been relevant in the exercise of the decision in circumstances such that the failure was so unreasonable that no reasonable decision maker could have exercised it;
c)That there was a denial of procedural fairness by failing to afford the applicant an opportunity to respond to the email of 20 February informing him of the imminent expiry of the application period; and
d)That the email of 20 February ought be characterised as something more than a mere reminder to the applicant but was in effect a fresh notification by it emailing to him an invitation to respond which had the effect of extending time for a fresh statutory period, if not being another notice in its own right affording a statutory period.
Ground 1 – Error in law
The applicant contends that the Tribunal erred in law by failing to apply s.29(1) of the Acts Interpretation Act1901 (Cth) to the calculation of the time limit. Section 29(1) of the Acts Interpretation Act relevantly provides:
“29(1) here an Act authorizes or requires any document to be served by post, whether the expression "serve" or the expression "give" or "send" or any other expression is used, then the service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.”
It was submitted that the phrase “unless the contrary is proved” permits the presumption provided for in s.29(1) to be rebutted. It is contended that on that basis the Tribunal ought to have received and considered the evidence offered by the applicant to the effect that he had not received the envelope containing the relevant notice even though it was posted correctly to his then current home address by registered mail. It was submitted that the Tribunal should also have received the additional evidence surrounding the circumstances that might corroborate this assertion, such as recent difficulties encountered by his neighbours with their own mail deliveries.
The respondent contends however that s.29 is not pertinent to the present case as any general presumption as to the time of service that may arise by virtue of s.29 of the Acts Interpretation Act is made irrelevant by the specific provisions of the Migration Act, in particular r.2.55 of the Migration Regulations. Both the applicant and the respondent cited in support of their respective contentions Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 550. In that case, Spender J, considering the analogous provision of s.494B(4) of the Act, said at [68] – [69]:
“[68] …in my view, s.29 of the Acts Interpretation Act has no application in the present case, because in my judgment, s.494C of the Migration Act manifests a contrary intention to that expressed in s.29 as to service by post. It will be recalled that subs 494B(4) of the Migration Act provides:
(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 … address provided to the Minister by the recipient for the purposes of receiving documents.
[69] The person is “taken to have received the document”, in the circumstances of this case, seven working days after the date of the document. In my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification. There is nothing to indicate that the effect of the subsection is to be read as if there was a proviso that the person was not taken to have received the document where the documents had been returned undelivered to the sender within seven working days after the date of the document, or that the subsection operates in its terms only “until the contrary is proved.”
His Honour noted that those considerations applied in relation to s.441C(4) of the Migration Act and arguably by implication would also apply to r.2.55. Significantly, his Honour continued:
“[71] I accept that this conclusion means, in circumstances like the present, that the requirements of notification to a person descend to a ritualistic and solemn farce. That, however, is a consequence that lies directly at the feet of the applicant, who failed to inform DIMIA of any relevant change of address, and so has brought about the present situation by his own misfeasance.”
His Honour proceeded at [72] of his judgment to speculate upon the reasons for that provision. That matter is not relevant. However, what was contended for by the applicant is that his Honour’s remarks at [71] indicate that some misfeasance on the part of the applicant must be demonstrated before an applicant would be subject to the harsh consequences of r.2.55. He submitted that as the applicant in this instance was blameless and there was no suggestion or evidence to indicate culpability on his part, the view expressed in Murphy ought be distinguished from the current case before the Court.
However, the respondent contends that Spender J’s construction of s.494B(4) of the Act in Murphy has since been applied by more than one decision of the Full Federal Court; see Bin Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 at [13] – [14]; Tay v Minister for Immigration and Citizenship [2010] FCAFC 23 at [16] – [19]. In particular, the respondent referred to the decision of Jacobson J in Sainju v Minister for Immigration and Citizenship [2010] FCA 461 at [49 ] – [59], where his Honour considered those authorities in the context of r.2.55 and at [56] noted:
“[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…”
The effect of his Honour’s observations is, as Spender J remarked, to provide that “the requirements of notification to a person descend to a ritualistic and solemn farce,” and that, accordingly, if that ritual is fulfilled that is a complete answer. I accept that submission as stating the law. Accordingly, there is no scope for operation of s.29 in the face of r.2.55. It follows that this ground must fail.
Ground 2 – Denial of a fair hearing
The applicant contends that the Tribunal operates in an inquisitorial rather than adversarial manner where its core function is to “review the decision.” It noted the High Court’s observations in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 that:
“[20] The failure of an administrative decision-maker to make inquiry into factual matters which can readily be determined and are of critical significance to a decision made under statutory authority, has sometimes been said to support characterisation of the decision as an exercise of power so unreasonable that no reasonable person would have so exercised it.”
For the applicant it was contended that in the current case it was open to the Tribunal to proceed at least one step beyond the mere counting of the number of days available for filing his application on time. It was submitted that the Tribunal could (and on this occasion should) have taken into account his explanatory evidence about the non-arrival of the registered post envelope containing the notice of cancellation, and that the Tribunal’s failure to do so meant that it did not conduct a fair hearing. In his submissions he relied upon the observations in Minister for Immigration and Citizenship v Li [2012] FCAFC 74, where at [66] it was observed:
“…The applicant’s detailed explanation of the reasons why the decision was wrong ought to have put the Tribunal on notice that this was not merely a stalling tactic on the part of the applicant. That matter was the only item outstanding in what otherwise ought to have been a successful application…”
In making those comments, the High Court approved the earlier observations of Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 167 – 170.
The applicant submitted that his detailed explanation of the reasons why the decision was wrong ought to have put the Tribunal on notice that this was not merely a stalling tactic on his part. That matter was the only item outstanding in what otherwise ought to have been a successful application. It was contended that, when considered together with the significance of the impact of that wrong decision, the Tribunal’s decision to proceed in this circumstances rendered it unreasonable in the Wednesbury Corporation sense.[1] That is to say that it constituted an improper exercise of the power and it went to the very jurisdiction. The applicant submitted that in this case the Tribunal engaged in jurisdictional error in concluding that it held no jurisdiction in circumstances where it refused to receive evidence to the effect that the applicant had never received the notice of cancellation dated 31 January 2012 and first became aware of the notice at 6:42pm on the day of cancellation. That is, after the period for appeal had expired, and, finally, the applicant acted promptly upon receiving notice.
[1] Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1 KB 223.
The respondent contends that the Tribunal’s decision at [23] to [27] in fact shows that the Tribunal did consider the applicant’s explanations regarding non-receipt of notice of cancellation however that, by reason of the deeming provision in r.2.55, the fact of receipt was irrelevant when the prescribed time in relation in which to make an application for review had expired. It submitted, contrary to the applicant’s assertions, that the Tribunal was not entitled to have his application for review considered on its merits in circumstances where no application for review was lodged until after the time in which to lodge an application had expired.
Respectfully, the respondent’s submission is correct. As was submitted on its behalf, the strict statutory regime provided for under the Act is designed to impose a regime that provides for administrative certainty irrespective of the potential harshness of the consequences and circumstances where an applicant through no fault of his/her own is shut out from bringing an application: see Sainju v Minister for Immigration and Citizenship (supra) at [58].
Ground 3 – Procedural Fairness
The third ground advanced by the applicant is that, as a matter of procedural fairness, the respondent should have allowed the applicant sufficient time to respond to the notice forwarded by Ms Sandi Daniels on 20 February 2012 before shutting him out from making application. It was contended for the applicant that the presumed intention behind the email of 20 February was less likely to have been that of acting as a reminder concerning the initial notice (and the imminent expiry of the appeal period at the close of that working day) than of being construed as one for the purpose of inviting him to comment. That however was not the evidence of Ms Daniels. Ms Daniels was quite plain in her evidence that there was no statutory basis for the reminder email of 20 February. She stated that it had been a policy of the Brisbane office of the Department to forward letters of this kind out to applicants who had not responded and whose applications were due to expire within three days of the due date. Letters of this kind were forwarded as a matter of courtesy.
The applicant contended that the legal obligation upon the Minister to exercise procedural fairness arose from two sources:
a)Principles established at common law, codified through international treaty and adopted in Schedule 2 of the Human Rights and Equal Opportunity Commission Act1986 (Cth); and
b)The requirement upon the Minister in any event to act traditionally in the exercise of powers given statutorily under the Migration Act. He submitted that the nature of the procedural fairness, whilst obviously varying from case to case, would be determined consistent with the principles in Kioa v West (1985) 159 CLR 550 at 609, where Brennan J observed:
“…when the statute does not expressly require that the principles of natural justice be observed, the court construes the statute on the footing that “the justice of the common law will supply the omission of the legislature” … The true intention of the legislature is thus ascertained…”
It was submitted for the applicant that the respondent’s advice of 20 February which afforded him barely over six hours within which to respond by filing an application for review was not procedurally fair treatment. He contended that there should have been at least as many days rather than hours allowed to the applicant within which to respond by filing any such application for review and that the applicant certainly should have been allowed at least more than one working day beyond that day.
However, as was submitted by the respondent, the fact remains that the email which was forwarded was one which had no statutory basis. It was, as Ms Daniels said, merely a courtesy letter, and the Department was under no obligation to do so. Regulation 2.55 is clear in that it deemed the applicant to have received the notice of cancellation seven working days after the date of the notice regardless of when (if at all) the applicant actually received the notice of cancellation. The email of 20 February was plain in its terms that it was not a notice of cancellation. Indeed, it merely confirmed the fact, for instance stating in the first sentence that:
“… Departmental records indicate that your Student Visa was cancelled on 31 January 2012 and that you are now in Australia without authority. The cancellation decision was sent to you via letter in Australia to your last known postal address.”
I accept as correct the respondent’s contention that no issue of procedural fairness can arise in respect of a matter which is not formally required and particularly one which is asserted in the face of regulation to the contrary. It follows, in my view, that the applicant’s application on this ground also fails.
Ground 4
Upon the hearing of the application the applicant abandoned Ground 4. Accordingly it is unnecessary for me to deal with that argument.
Conclusion
The applicant was served with notice of cancellation of his visa in accordance with r.2.55. The Regulations provide a prescriptive scheme for service which is not open to rebuttal. Following service a strict limitation applies for the commencement of any application for review of the relevant decision. The limitation cannot be extended. In this case the applicant only came to actually know of the decision after the expiration of the time for commencing an application for review. The Tribunal determined that it had no jurisdiction to entertain the application because it had been commenced out of time. As harsh as it may appear to be, there has been no denial of procedural fairness by the Tribunal in reaching its conclusion, as it is bound by the prescriptive nature of r.2.55. Section 29(1) of the Acts Interpretation Act does not operate to exclude the manner of computing time provided from r.2.55. The Tribunal’s decision was correct.
Orders
Application dismissed.
Subject to any application made for any other order the applicant pay the respondent’s costs of and incidental to the application fixed in the sum of $6,471.00.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Burnett FM
Date: 20 December 2012
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