Singh v Minister for Immigration

[2017] FCCA 2265

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2265

Catchwords:

MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal erred in finding that it had no jurisdiction to review the decision of a delegate of the first respondent refusing the applicant’s visa application – whether the applicant’s application for review of a decision of a delegate of the first respondent was filed outside the mandatory time limit – whether the Administrative Appeals Tribunal erred in failing to comply with section 360 of the Migration Act 1958 (Cth) – whether the decision of the Administrative Appeals Tribunal was affected by bias whether the applicant was properly notified of the delegate’s decision to refuse his application – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.347, 360 , 494B, 494C
Migration Regulations 1994 (Cth), reg.4.10

Cases Cited:
Murphy v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 657
Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172

Applicant: GAGANDEEP SINGH

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3743 of 2016

Judgment of: Judge Emmett

Hearing date: 12 September 2017

Date of Last Submission: 12 September 2017

Delivered at: Sydney

Delivered on: 12 September 2017

REPRESENTATION

Applicant appeared in person

Solicitors for the Respondents: Mr Lenny Leerdam
DLA Piper Australia

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 3743 of 2016

GAGANDEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By application filed on 28 December 2016 the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 5 December 2016 in which the Tribunal found that it has no jurisdiction to conduct a review of a decision of a delegate of the first respondent (“the Delegate”) dated 8 August 2015 refusing the applicant a partner visa.

2. The issue is whether the applicant was properly notified of the Delegate’s decision to refuse his visa application such that the Tribunal was correct to find that it had no jurisdiction to conduct a review of the Delegate’s decision.

3. The background of this matter and the decision of the Tribunal are accurately summarised in the first respondent’s written submissions at paragraphs 2 to 11 as follows:

   “Background

   2 The applicant is a male citizen of India. He arrived in Australia on a Student (Temporary) visa on 17 November 2008.

   3 The applicant applied for a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) (Subclass 801) visa, via his agent, on 26 September 2012. Relevantly, the application form stated the applicant's address as “7/1 Reid Avenue, Westmead, NSW 2145”.

   4 The application was refused by a delegate of the first respondent on 8 April 2015. The delegate found that the applicant did not satisfy clause 801.221 of the Migration Regulations 1994 (Cth) (Regulations). The delegate found that that the applicant was not the spouse or de facto partner of the applicant's sponsor, as defined under sections 5F and 5CB of the Act.

   4.1 The applicant was notified of the decision by registered letter dated 8 April 2015, dispatched by post on 9 April 2015, the following day. The letter was sent to the applicant's address for service provided to the department as listed on the application.

   4.2 The letter was, however, returned to the Department on 25 May 2015, and marked as “Unclaimed”.

   5 The applicant applied to the AAT for review of the delegate's decision on 8 August 2016. In that application for review, the applicant listed his residential address and address for correspondence again as “7/1 Reid Avenue, Westmead, NSW 2145”. The application also enclosed a copy of the delegate's decision and notification of decision.

   6 The AAT determined that it did not have jurisdiction in this matter, on 5 December 2016.

   The decision of the AAT

   7 Pursuant to section 347(1)(b) of the Act, and regulation 4.10 of the Regulations, an application for review of the delegate's decision must be made within 21 days after the applicant was notified of the decision (at [3])].

   8 The AAT found that the applicant had been notified of the delegate's decision on 17 April 2015, in accordance with the Act and regulations (at [4]).

   8.1 The Tribunal found that the applicant had been notified of the decision by registered post by letter dated 8 April 2015, being the address provided to the department as the applicant's address for correspondence (at [4]).

   8.2 The AAT noted that the letter had been returned to the Department on 25 May 2015 marked “unclaimed”. However, the AAT also noted the file note on the Department's file of a telephone call of 27 May 2015 in which the applicant confirmed his address, as the address to which the letter had been sent. The file note also records that the applicant was verbally advised that a letter had been sent to him on 8 April 2015 advising that his application was refused (at [6]).

   8.3 The Department file records that the next contact from the applicant was 2 August 2016 (at [6]).

   8.4 The AAT noted that it had received a submission dated 21 November 2016 that the applicant did not receive the decision of the delegate. However, the AAT found that the letter had been sent to the correct address, in accordance with the statutory requirements, and noted that no substantive reason was given as to why the mail was returned “unclaimed” (at [5]).

   9 The AAT found that, in accordance with section 494C of the Act, the applicant was taken to have been notified of the decision on 17 April 2015 (at [7]).

   10 The AAT found that, based on this notification, the prescribed period in which the application to the AAT could have been made ended on 8 May 2015 (at [7]).

   11 The AAT therefore found that it had no jurisdiction in this matter (at [8]).”

4. The applicant was unrepresented before this Court this afternoon and confirmed that he had no further documents to place before the Court today in support of his application. The applicant also confirmed that he had not filed any documents since a directions hearing on 11 May 2017, either in accordance with those directions or otherwise. 

5. The applicant confirmed that he relied on the grounds of his initiating application filed on 28 December 2016 as follows:

   “1. The Second Respondent made jurisdictional error by failing to provide procedural fairness to the Applicant.

   Particulars

   a) The Second Respondent made jurisdictional error by acting contrary to section 360 of the Migration Act 1958.

   b) Alternatively, the Second Respondent failed to invite the Applicant to give evidence and present arguments related to the review decision.

   2. The Second Respondent’s determination is affected by jurisdictional error in that the approach adopted to the Applicant’s claim affected by actual or apprehended bias.

   3. The Second Respondent made jurisdictions error in that the approach adopted to the Applicant’s claim that he was not properly notified the outcome of the visa application.”

   (Errors in original)

6. I explained to the applicant the role of this Court in some detail. I also took the applicant through the Tribunal’s decision in detail to explain to the applicant the statutory scheme pursuant to which he was required to be notified by the Department of Immigration and Border Protection (“The Department”) of the Delegate’s decision and the various findings made by the Tribunal as to why it was satisfied that that statutory regime had been complied with.   

7. The solicitor for the first respondent, Mr Leerdam, took the Court carefully through the relevant documents in relation to the matter as contained in the court book filed on 8 June 2017, and marked Exhibit 1R.

8. On 26 September 2012 the applicant lodged an application for a partner visa and he identified an address at 7/1 Reid Avenue, Westmead as his address for correspondence. On 26 September 2012 the applicant also lodged an appointment of a migration agent. However, on 15 October 2013 that appointment was terminated by the applicant. There is no evidence before this Court of any other address ever provided by the applicant to the Department for correspondence. In the circumstances, I am satisfied that the address to which the Department was required to communicate with the applicant was 7/1 Reid Avenue, Westmead.

9. On 8 April 2015, the Department wrote to the applicant at that address enclosing a copy of the decision of the Delegate refusing the applicant’s visa application.  There is a stamp at the top of the copy of that letter contained in Exhibit 1R which, in the circumstances, I am satisfied indicates that the letter was sent by registered post.

10. On 25 May 2015 that letter was returned to the Department unclaimed, and I am further satisfied that a stamp on the face of the copy of the envelope contained in Exhibit 1R indicated that the letter was dispatched on 10 April 2015.

11. Section 494B(4) of the Act required that a document sent by pre-paid post from the Department must be dispatched within three working days of the date of the document to the last address for service provided or the last residential or business address provided for the purpose of receiving documents.

12. In the circumstances, I am satisfied that the notification letter was sent within three days of the date of the letter by pre-paid post to the last address for service provided to the Department by the applicant for the purposes of receiving documents. Accordingly, the requirements of s.494B(4) of the Act were met.

13. On 27 May 2015, there was a Departmental file note created in respect of an officer who had a conversation with the applicant on that day. The file note indicates that the applicant confirmed his address as 7/1 Reid Avenue, Westmead, NSW 2145 and that he was told that a letter had been sent to him on 8 April 2015 advising him that his visa was refused. The file note further indicated that the applicant stated he did not receive the letter and that he wanted to know the status or outcome of his visa application. The file note indicated that the applicant was told that his notification letter advised him that he had 28 days to appeal the Delegate’s decision, however, that time had now passed, and that he would need to attend the Department office because his status was now unlawful. The file note indicated that the applicant responded that he understood.

14. On 8 August 2016, the applicant then lodged an application for a review of the Delegate’s decision with the Tribunal. That review application identified a registered migration agent, Mr Dhruba Dahal of Shamser Thapa & Associates, as acting for the applicant in that review application. 

15. On 6 September 2016, the Tribunal wrote to the applicant’s migration agent enclosing a letter to the applicant which advised the applicant that his application was not a valid application as it was not lodged within the relevant time limit.  The letter went on to state that the time limit was 21 days from the day on which the applicant was taken to have been notified of the primary decision.

16. Relevantly, the applicant was invited to make any comment on whether a valid application had been made and was invited to do so by 20 September 2016. The applicant’s migration agent ultimately responded on 21 November 2016, stating that the applicant had never received a copy of the decision record and that the notification letter had been returned to the Department on 25 May 2015. The agent also stated that the applicant had not been provided with a copy of the decision record.

17. The letter contained a statutory declaration by the applicant, attesting to the fact that he did not receive the letter and that he has never been provided with a copy of the decision record and asserting that he was not “notified properly by the department about the outcome” of his visa application. The applicant also attested to the fact that he had contacted the post office several times to see if there was any letter addressed to him and was told there was no such letter. He also stated that he had spoken to the case officer several times about the progress of his visa application and was told that the letter had been posted to his residential address.

18. The Tribunal’s decision was made on 5 December 2016 and concluded that the Tribunal had no jurisdiction to review the decision, as the application had not been made in accordance with the relevant legislation. The Tribunal then referred to s.347(1)(b) of the Act and r.4.10 of the Regulations, which made clear that an application for a review of a decision had to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements.

19. The Tribunal then noted that the decision letter was dated 8 April 2015 and was dispatched by post. The Tribunal also found that the applicant was notified of the decision in accordance with the requirements. The Tribunal then referred to the submission by the applicant’s migration agent that the applicant had not received notification of the decision of the Delegate and that the notification letter had been returned to the Department on 25 May 2015.

20. The Tribunal was satisfied that the notification letter was sent to the correct address as provided by the applicant and that no substantive reason had been provided as to why the mail was returned from that address and marked “unclaimed”. The Tribunal also referred to the Department’s file note dated 27 May 2015 and noted that the applicant had verified his address in that conversation.

21. The Tribunal noted that according to the Department file, the next contact from the applicant was on 2 August 2015 and that there was no evidence before the Tribunal to contradict the evidence contained in the Department file. 

22. The Tribunal then found that in accordance with s.494C of the Act, the applicant was taken to have been notified of the decision on 17 April 2015, and that therefore the prescribed period within which the review application could be made ended on 8 May 2015. As the application for review was not received by the Tribunal until 8 August 2016, the Tribunal found that the review application had not been made in accordance with the relevant legislation and the Tribunal had no jurisdiction in the matter. 

23. Section 494C(4) of the Act deemed relevantly that a document dispatched by pre-paid post in accordance with s.494B(4) of the Act was received seven working days after the date of the document, where that document was dispatched from a place in Australia to an address in Australia. As stated above, s.347(1)(b) of the Act and reg.4.10 of the Regulations have the effect that an application for review of the Delegate’s decision must be made within 21 days after the applicant was notified of the decision.

24. I am satisfied that the notification letter was dispatched to the applicant by post within three days of the date of that letter and that the 21 day limit ran against the applicant from the date of that letter. I note that Exhibit 1R contains a calculation from the date of posting, being 8 April 2015, plus 7 working days plus 21 calendar days, making the last day 8 May 2015. I accept that that calculation is correct. In any event, even if it is not correct, the applicant’s application was not lodged until more than 14 months after that date.

25. In the circumstances, the Tribunal’s finding that it had no jurisdiction to conduct a review was open to it on the evidence and material before it and for the reasons it gave.

26. The applicant’s complaints in Ground 1 are misconceived in that they contend that the applicant was denied procedural fairness because the Tribunal acted contrary to s.360 of the Act and failed to invite the applicant to give evidence and present arguments relating to the review. However, there was no obligation on the Tribunal to invite the applicant to give evidence and present arguments relating to the review decision where it correctly found that it had no jurisdiction. Section 360 of the Act is relevant only to the conduct of a review of a delegate’s decision by a Tribunal. Section 360 of the Act has no part to play where a tribunal has correctly decided that it had no jurisdiction to conduct such a review. The Tribunal did provide procedural fairness to the applicant by writing to him inviting comment on the issue of the Tribunal’s jurisdiction and considered in detail the applicant’s migration agent’s response.

27. To the extent that Ground 2 of the application asserts that the Tribunal’s decision was affected by bias, such an allegation is serious and requires evidence. The Tribunal’s determination that it had no jurisdiction was a determination that it made in circumstances where there was no residual discretion that fell to the Tribunal to determine otherwise, once it was satisfied that the statutory scheme had been complied with. The Tribunal’s findings and conclusions were open to it on the evidence and material before it and for the reasons it gave.

28. Having found the Tribunal’s findings in relation to the Department’s compliance with the statutory scheme to be without error, there can be no sustainable allegation of actual or apprehended bias on the part of the Tribunal arising from its decision.

29. In relation to Ground 3, the applicant asserts that he was not presently notified of the outcome of his visa application. By that, I understand the applicant to say that he did not receive the notification letter. However, for the reasons above, and in circumstances where the statutory scheme involving deemed notification to the applicant was complied with, there is no jurisdictional error on the part of the Tribunal arising from the fact that the applicant did not receive the notification letter and that it was returned to the Department. As stated above, I note that by the time the letter was returned, unclaimed, to the Department, the timeframe had already passed. Moreover, there was no evidence provided either to the Tribunal or to this Court to explain why the applicant may not have received that notification letter despite being given opportunities by both the Tribunal and the Court to do so.

30. The Tribunal’s decision record made clear that it considered the applicant’s claim that he was not notified of the Delegate’s decision and specifically referred to the applicant’s migration agent’s submission of 21 November 2016, that the applicant had not received a copy of the decision. 

31. The Tribunal’s decision makes clear that it was aware the notification letter had been returned to the Department unclaimed on 25 May 2015.  However, the Tribunal was satisfied, as stated above, that the letter was sent to the correct address, being the only address provided by the applicant other than the address of the migration agent, whose services the applicant terminated on 15 October 2013.

32. The Tribunal also noted that there was no substantive reason as to why the mail was returned from the applicant address and marked unclaimed. In the circumstances, the Tribunal considered in some detail the applicant’s claims in relation to this failure by him to receive the notification of the Delegate’s decision. As stated above, the notification letter was sent to the applicant via registered post to the address provided by the applicant in his initiating visa application form and that address was confirmed by the applicant in the telephone call with the department officer on 27 May 2015. 

33. In the circumstances, the applicant’s failure to receive notification of the Delegate’s decision does not demonstrate any error on the part of the Tribunal. It is well established that the lack of receipt of a decision of an applicant in those circumstances will not affect the operation of the deemed receipt provisions (see Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 at [14] per Spender, Kiefel and Dowsett JJ; Murphy v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 657 at [69] per Spender J).

1. In the circumstances, none of the applicant’s grounds are made out and the Tribunal’s decision is not affected by jurisdictional error. 

2. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere with the Tribunal’s decision and the proceeding before this Court commenced by way of application filed on 28 December 2012 should be dismissed with costs. 

I certify that the preceding thirty-three (35) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 11 October 2017