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 |
| 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
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”).
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.
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…
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Details
- Case
- [2016] FCCA 549
- Decision Date
CaseChat Overview and Summary
This matter concerned an appeal by Mr. Singh against a decision of the Migration Review Tribunal (MRT) which found it had no jurisdiction to review the Minister for Immigration's decision to cancel his Higher Education Sector (subclass 573) visa. The dispute arose from the applicant's contention that he was not properly notified of the cancellation decision, and that his application for review was therefore lodged within the prescribed time.
The primary legal issue before the court was whether the MRT had correctly determined that it lacked jurisdiction to hear Mr. Singh's application for review. This involved considering whether the applicant had been validly notified of the visa cancellation decision according to the provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth), and consequently, whether his application for review was lodged within the statutory time limit.
Emmett J reasoned that the *Migration Act* and *Regulations* prescribed specific methods for notifying visa holders of cancellation decisions and for deeming when such notification is taken to have been received. The Tribunal had found that the notification letter, dated 13 October 2014, was dispatched by registered post on 14 October 2014 to the applicant's last known residential address. Under regulation 2.55(7) of the *Migration Regulations*, a document dispatched by prepaid post to an Australian address is taken to have been received seven working days after the date of the document. The Tribunal determined that Mr. Singh was therefore taken to have been notified on 22 October 2014, meaning the seven-working-day period for lodging a review application expired on 31 October 2014. As Mr. Singh's application was lodged on 6 November 2014, the Tribunal concluded it was out of time and thus lacked jurisdiction.
The court upheld the MRT's decision. Emmett J found that the Tribunal had correctly applied the relevant legislative provisions regarding notification and the deemed receipt of documents. The evidence before the Tribunal, including dispatch records and returned envelopes, supported its finding that the notification process had been undertaken in accordance with the law. Therefore, the Tribunal's conclusion that it had no jurisdiction to review the cancellation decision was upheld.
The primary legal issue before the court was whether the MRT had correctly determined that it lacked jurisdiction to hear Mr. Singh's application for review. This involved considering whether the applicant had been validly notified of the visa cancellation decision according to the provisions of the *Migration Act 1958* (Cth) and the *Migration Regulations 1994* (Cth), and consequently, whether his application for review was lodged within the statutory time limit.
Emmett J reasoned that the *Migration Act* and *Regulations* prescribed specific methods for notifying visa holders of cancellation decisions and for deeming when such notification is taken to have been received. The Tribunal had found that the notification letter, dated 13 October 2014, was dispatched by registered post on 14 October 2014 to the applicant's last known residential address. Under regulation 2.55(7) of the *Migration Regulations*, a document dispatched by prepaid post to an Australian address is taken to have been received seven working days after the date of the document. The Tribunal determined that Mr. Singh was therefore taken to have been notified on 22 October 2014, meaning the seven-working-day period for lodging a review application expired on 31 October 2014. As Mr. Singh's application was lodged on 6 November 2014, the Tribunal concluded it was out of time and thus lacked jurisdiction.
The court upheld the MRT's decision. Emmett J found that the Tribunal had correctly applied the relevant legislative provisions regarding notification and the deemed receipt of documents. The evidence before the Tribunal, including dispatch records and returned envelopes, supported its finding that the notification process had been undertaken in accordance with the law. Therefore, the Tribunal's conclusion that it had no jurisdiction to review the cancellation decision was upheld.
Orders
Orders of the court
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Background
Background to the litigation
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:“Background1. 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 Tribunal5. 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 agapinu25@gmail.com, which was not the applicant’s email address. They advised that the applicant’s email address “is, and always has been: agapimu25@gmail.com” (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 scheme8. 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 decision12. 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]).”
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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