Singh v Minister for Immigration

[2016] FCCA 549

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 549

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal failed to afford procedural fairness to the applicant by not providing the tracking number of a ‘Notice of Intention to Cancel’ and a ‘Notice of Cancellation’ sent by the Department of Immigration and Border Protection to the applicant via registered post – whether the Administrative Appeals Tribunal failed to afford procedural fairness to the applicant by not providing a copy of the envelopes returned to the Department of Immigration and Border Protection marked ‘Return to Sender’ – whether dispatch by registered post enlivens the deeming provisions in regulation 2.55 of the Migration Regulations 1994 (Cth) – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.116, 127, 338, 347, 474, 494C
Migration Regulations 1994 (Cth), regs.2.55, 4.10

Cases Cited:
Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 77
Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172
Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 550

Applicant: SHOBHA SINGH

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 231 of 2015

Judgment of: Judge Emmett

Hearing date: 15 March 2016

Date of Last Submission: 15 March 2016

Delivered at: Sydney

Delivered on: 15 March 2016

REPRESENTATION

Counsel for the Applicant: Mr Paul Cutler

Solicitors for the Applicant: Parish Patience Immigration Lawyers

Counsel for the Respondents: Mr Gregory Johnson

Solicitors for the Respondents: Sparke Helmore Lawyers

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 231 of 2015

SHOBHA SINGH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated 6 January 2015 and handed down on that date (“the MRT”).

2. The issue in this case is whether or not the Department of Immigration and Border Protection (“the Department”) properly notified the applicant of the decision a delegate of the Department (“the Delegate”) to cancel the applicant’s subclass 573 visa.

3. The background of this matter, the proceeding before the MRT, the relevant legislative scheme, and the MRT’s decision are accurately summarised in the first respondent’s written submissions, as follows:

   “Background

   1. On 18 March 2014, the applicant was granted a Higher Education Sector (subclass 573) visa (Court Book (“CB”)).

   2. By letter dated 12 September 2014, the Department sent a Notice of Intention to Consider Cancellation (“NOICC”), in respect of the applicant’s subclass 573 visa, to the applicant’s last residential address known to the Minister (dispatched on 15 September 2014 (CB 120)).  A copy of the NOICC was transmitted by email on 12 September 2014 to the last email address known to the Minister (CB 66).  The NOICC indicated that there appeared to be a ground for cancelling the applicant’s visa on the basis that he had breached condition 8516, which required the visa holder to continue to satisfy the primary criteria for the grant of the visa (in this case, cl 573.231 of the Migration Regulations 1994 (Cth) (“Regulations”)) (CB 107). On 28 October 2014, the envelope was returned to the Department with a “return to sender” notification indicating that the letter had been unclaimed (CB 106).

   3. On 13 October 2014, a delegate of the Minister decided to cancel the applicant’s subclass 573 visa pursuant to s 116(1) of the Migration Act 1958 (Cth) (“Act”). On 14 October 2014, the Department sent a notification letter (dated 13 October 2014), enclosing the decision record, to the applicant’s last residential address known to the Minister (CB 72 & 121). On 27 November 2014, the envelope was returned to the Department with a “return to sender” notification indicating that the letter had been unclaimed (CB 106).

   4. On 6 November 2014, the applicant applied to the (then) Migration Review Tribunal (“Tribunal”) for review of the delegate’s decision (CB 91).

   Proceedings in the Tribunal

   5. By email transmitted to the applicant’s representative on 18 November 2014, the Tribunal invited the applicant to comment on the validity of the application for review (CB 99). The Tribunal had formed the view that the application was not valid because it was not lodged within the relevant time limit, 7 working days from the day on which the applicant was taken to have been notified of the delegate’s decision (by 31 October 2014) (CB 101).

   6. By letter dated 2 December 2014 (CB 104), the applicant’s representative provided a response to the Tribunal’s invitation to comment, stating that “the applicant unequivocally states that he was also never in receipt of any departmental notice from any post office of a registered mail addressed to him.” In the same letter, the applicant’s representative, who had accessed the Departmental file in relation to the application for review, stated that the file contained “no copy of an AP article ID number for a registered post nor a copy of the actual envelope used or returned.” The representative contended that “the apparent absence of any supporting evidence of copies of registered post ID might be construed as inferring there was in fact no registered post sent to the applicant”. The applicant’s representative also stated that the NOICC and cancellation decision were sent to the email address [email protected], which was not the applicant’s email address. They advised that the applicant’s email address “is, and always has been: [email protected]” (CB 104).  

   7. The Tribunal subsequently made inquiries with the Department. The Department provided to the Tribunal copies of the envelopes in which the NOICC and the notification letter were dispatched, and copies of records which confirmed that letters with the respective registered post numbers were dispatched (within 3 days of the respective dates of the documents) to the applicant at his last residential address known to the Minister (CB 129 at [10]).

   Legislative scheme

   8. A decision to cancel a visa held by a non-citizen who is in the migration zone at the time of the cancellation is an “MRT-reviewable decision:” s 338(3) of the Act. Pursuant to s 347(1)(b) of the Act, an application for review of an MRT-reviewable decision must be given to the Tribunal within the prescribed period. In relation to a decision to cancel a visa that is covered by s 338(3) of the Act, the prescribed period is 7 working days after the day on which the notice (of the delegate’s decision) is received: reg 4.10(1)(b) of the Regulations.

   9. Pursuant to s 127 of the Act, when the Minister decides to cancel a visa under s 116(1) of the Act, he is to notify the visa holder of the decision in one of the ways prescribed in reg 2.55 of the Regulations.

   10. Regulation 2.55(3)(c) provides that a document relating to the cancellation of a visa may be given:

   (c)      by dating it, and then dispatching it:

   (i)     within 3 working days (in the place of dispatch) of the date of the document; and

   (ii)    by prepaid post or by other prepaid means;

   to the person’s last residential address, business address or post box address known to the Minister;

   11. Regulation 2.55(7) provides for when a person is taken to have received a document dispatched by the Minister by prepaid post, in the following terms:

   (7)      If the Minister gives a document to a person by dispatching it 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;

   Tribunal decision

   12. On 6 January 2015, the Tribunal found that it had no jurisdiction to review the delegate’s decision because “the application was not made in accordance with the relevant legislation,” for the reasons that follow (CB 128 at [2]).

   13. The Tribunal found that the notification letter (dated 13 October 2014) was dispatched by registered post (on 14 October 2014) to the applicant’s last residential address known to the Minister (CB 128 at [6] and [8]). The Tribunal was satisfied that the applicant was notified of the decision in accordance with the statutory requirements (CB 129 at [12]).

   14. The Tribunal found that the applicant was taken to have been notified of the decision on 22 October 2014 and, therefore, that the prescribed period within which the review application could be made ended on 31 October 2014. The applicant did not apply to the Tribunal until 6 November 2014 (CB 129 at [13]).

   15. The Tribunal accepted the applicant’s representative’s submission that the applicant did not become aware that his visa had been cancelled until 3 November 2014 (CB 129 at [12]). However, on the basis that the application for review was not made in accordance with the legislation, the Tribunal found that it had no jurisdiction in the matter (CB 129 at [13]).”

The proceeding before this Court

1. The applicant was represented before this Court by Mr Paul Cutler, of counsel.

2. Counsel for the applicant confirmed the applicant relied on the grounds in an Amended Application filed on 2 March 2016, as follows:

   “2. The Tribunal did not afford procedural fairness to the Applicant.

   Particulars

   (a) The Returned Registered Envelopes and incidental materials were not included in the first respondent’s reply of a bundle of documents to the Registered Migration Agent’s Freedom of Information Request.

   (b) The Tribunal in making its decision subsequently sourced from the department returned registered Post envelopes marked-up to the Applicant’s residential address together with ancillary materials; these were not made available to the Applicant.

   3. The Tribunal failed to consider whether section 494C(7) applied in circumstances where the Applicant claimed he had not received either the NOIC or the cancellation letter from the DIBP.”

3. Counsel for the applicant submitted that both grounds centred around the conduct of the MRT in failing to afford procedural fairness to the applicant by neither giving the applicant the tracking number of the ‘Notice of Cancellation’ sent by registered post on 14 October 2014 nor a copy of the envelope marked ‘Return to Sender’ of that letter received by the Department on 27 November 2014.

4. It was common ground that the last date to lodge an application for review by the MRT of the Delegate’s decision was 31 October 2014. Counsel for the applicant read an affidavit of the applicant sworn 25 February 2016. I accept the applicant’s evidence that he had never received either the ‘Notice of Cancellation’ sent on 14 October 2014 or the ‘Notice of Intention to Consider Cancellation Under Section 116 of the Migration Act’ sent to the applicant by registered post on 15 September 2014. The applicant further deposed that he did not at any time receive any notification from Westmead Post Office of registered mail of either of those letters for him to collect.

5. On 18 November 2014, the MRT wrote to the applicant’s migration agent annexing a letter addressed to the applicant inviting him to comment on the validity of his application for review. Relevantly, that letter stated as follows:

   “I am of the view that your application is not a valid application as it was not lodged within the relevant time limit. The time limit is 7 working days from the date on which you are taken to have been notified of the primary decision. The primary decision was posted to you on 13 October 2014 and, on the basis that 22 October 2014 was the date on which you are taken to have been notified, the last date for lodging the application for review was 31 October 2014. As the application was not received until 6 November 2014, it appears to be out of time. However, this is a matter which must be determined by a Tribunal member.”

6. Thereafter, the letter invited the applicant to comment in writing by 2 December 2014.

7. On 2 December 2014, the applicant’s migration agent responded to the MRT’s letter stating the applicant had not received written notice of either the Department’s intention to cancel his student visa or indeed, that his student visa was cancelled, prior to his application for review by the MRT of the Delegate’s decision. The letter then referred, inter alia, to an email from the Department to an incorrect email address provided by the applicant to the Department. The letter also stated that documents provided to the migration agent suggested that the Department had communicated with the applicant by registered mail, however, the Department had not provided the registered post identification number nor a copy of the actual envelope used or returned. The letter stated that the applicant should be taken to have been notified of the cancellation of his visa on 3 November 2014 when he was “casually informed by phone by an Immigration Officer that his student visa had been cancelled” and that time should run from that date.

8. On 6 January 2015, the MRT wrote to the applicant enclosing a copy of the decision record and noting that the MRT had decided that it had no jurisdiction to determine the application. The MRT’s decision record referred to the review application lodged by the applicant on 6 November 2014. The MRT referred to s.347(1)(b) of the Act and reg.4.10 of the Migration Regulations 1994 (Cth) (“the Regulations”) to the effect that the application for review must be made within 7 working days after the applicant was notified of the Delegate’s decision. The MRT referred to its letter dated 18 November 2014 inviting submissions on that issue and referred to the applicant’s migration agent’s response. The MRT then recited the procedural history of communication with the applicant which is referred to above and is not in dispute.

9. The MRT referred to the applicant’s migration agent’s letter dated 2 December 2014 stating that the applicant had never received any Departmental notice from “any post office of a registered mail addressed to him”; and that the “apparent absence of any supporting evidence of copies of registered post ID might be construed as inferring there was in fact no registered post sent to the applicant”. The MRT then noted that it had made further enquiries of the Department and had been provided with copies of the envelopes in which the notice of intention to cancel the applicant’s visa and the notice of cancellation were sent, and noted that each had been returned to the Department and marked Return to Sender. The MRT noted that the Department had also provided copies of records confirming their respective registered post numbers. The MRT noted that the notice of intention to cancel the visa was returned to the Department on 28 October 2014 and the ‘Notice of Cancellation’ was returned to the Department on 27 November 2014, both sent to the same address and both marked Return to Sender.

10. The MRT accepted that the applicant did not become aware that his visa was cancelled until 3 November 2014, however, found that the applicant had been notified of the decision to cancel his visa in accordance with the statutory requirements. The MRT then found that in accordance with s.494C of the Act, the applicant was taken to have been notified of the MRT’s decision on 22 October 2014, thereby noting that the prescribed period within which a review application must be lodged ended on 31 October 2014. The MRT noted that as the application for review was not lodged until 6 November 2014, the MRT had no jurisdiction to consider the matter further.

11. Counsel for the applicant conceded that the applicant had not at any stage prior to 18 November 2014 contacted the Department to make any enquiries as to the method by which either of the notices was sent to the applicant; or to make any request for any information in relation to the sending of the notices, including any registered post tracking number.

12. It was common ground that despite the MRT’s reference to s.494C of the Act, the relevant notification provisions of a decision to cancel a visa are contained in s.127 of the Act and reg.2.55 of the Regulations. Regulation 2.55(7) of the Regulations provides that if a document is given to a person “by dispatching it by prepaid post or by other prepaid means”, that person is taken to have received the document within 7 working days of the date of the document where that document was dispatched from a place in Australia to an address in Australia, as occurred in this case. It is also common ground that the erroneous reference by the MRT to s.494C of the Act was immaterial as the language contained in reg.2.55 of the Regulations is substantially the same.

13. Regulation 2.55(9) of the Regulations relates to deeming receipt of a document sent by the Department where, despite some error on the part of the Department in giving the document, the person has in fact received the document. It therefore has no application in this case and any submission by the applicant to the contrary must fail.

14. It is common ground that registered post is a form of prepaid post and that a document sent by this method is an effective dispatch (see Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 77 at [33]-[34] per O’Connor, Tamberlin and Mansfield JJ; Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 at [18] per Spender, Kiefel and Dowsett JJ (“Xie”)).

15. Based on the evidence before me, I am satisfied that the notification of the cancellation letter, dated 13 October 2014, was dispatched by prepaid means on 14 October 2014 to the applicant’s last residential address known to the Minister.

16. In the circumstances, regardless of whether the applicant received the letter, the applicant is deemed to have received it (see Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 550 at [69] per Spender J; Xie at [14] per Spender, Kiefel and Dowsett JJ).

17. I do not accept the applicant’s submission that there was any procedural unfairness visited upon the applicant by the MRT’s failure to give the applicant a copy of the envelope marked Return to Sender containing the notice of intention to cancel and received by the Department on 28 October 2014. The notice of cancellation was not returned to the Department until 27 November 2014, being well after the MRT’s letter dated 18 November 2014 inviting comment from the applicant on the issue of the validity of the applicant’s application for review.

18. In relation to the applicant’s contention that the MRT should have provided the tracking number of the notice of intention to cancel sent by the Department on 15 September 2014, a copy of that letter was given by the MRT to the applicant’s migration agent on 18 November 2014.

19. In the circumstances, the MRT’s findings and conclusions were open to it on the evidence and material before it and for the reasons it gave. The MRT complied with its obligations under the statutory regime in the making of its decision, including in the conduct of its review. None of the applicant’s complaints is made out.

20. Accordingly, The MRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

21. The proceeding before this Court should be dismissed with costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 15 March 2016