Singh v Minister for Immigration

[2013] FCCA 428

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 428

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – Tribunal finding that it lacked jurisdiction because the purported review application was filed out of time – whether the applicant was lawfully notified of the delegate’s decision considered – no jurisdictional error established.

Legislation:  
Migration Act 1958 (Cth), ss.66, 347, 359A, 363, 362A, 494B, 494D

Migration Regulations 1994 (Cth)

Applicant: TEJINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2725 of 2012

Judgment of: Judge Driver

Hearing date: 31 May 2013

Delivered at: Sydney

Delivered on: 31 May 2013

REPRESENTATION

Solicitors for the Applicant: Mr M Newman
Newman & Associates

Solicitors for the Respondents: Mr R Baird
Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,471.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2725 of 2012

TEJINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application seeking review of a decision of the Migration Review Tribunal (Tribunal) made on 26 October 2012.  The Tribunal found that it lacked jurisdiction in the matter before it.  The following statement of background facts relating to the purported review application and the Tribunal’s decision on it is derived from the Minister’s outline of written submissions filed on 24 May 2013. 

2. Mr Singh is a citizen of India who applied for a student (temporary) (Class TU) visa on 24 January 2012[1].

   [1] Court Book (CB) 1- 28

3. On 9 February 2012, a delegate of the Minister refused the student visa application and allegedly forwarded his decision by registered post to the last known address for service of Mr Singh[2] (delegate's decision).  The delegate found that Mr Singh last held a substantive visa which ceased on 5 July 2010 and that, as his application for a student visa was not lodged until 24 January 2012, he did not satisfy clause 572.211 of the Migration Regulations 1994 (Cth) (Regulations).

   [2] CB 29-35

4. On 8 May 2012, the Tribunal received a purported application for review of the delegate's decision[3].

   [3] CB 36-46

5. By letter dated 13 August 2012, the Tribunal wrote to Mr Singh inviting him to comment on the validity of his application for review stating[4]:

   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 21 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 10 February 2012 and, on the basis that 20 February 2012 was the date on which you are taken to have been notified, the last day for lodging the application for review was 12 March 2012.  As the application was not received until 8 May 2012, it appears to be out of time.  However, this is a matter which must be determined by a Tribunal Member.

   [4] CB 54

6. Mr Singh requested an extension of time by which to respond to the Tribunal's letter of 13 August 2012 and was granted that extension[5].  By facsimile dated 4 October 2012, Mr Singh responded to the Tribunal's letter[6].

   [5] CB 57 and 58

   [6] CB 59 and 60

7. On 29 October 2012, the Tribunal informed Mr Singh that it had decided it had no jurisdiction to determine his application and enclosed a copy of the decision record dated 26 October 2012[7].  In summary, the Tribunal found that:

   a)Mr Singh did not give the Minister written notice under s.494D of the Migration Act 1958 (Cth) (Migration Act) of the name and address of an authorised recipient;

   b)the delegate's decision was sent by prepaid registered post on 10 February 2012 from a place in Australia to Mr Singh at an address in Australia, being the last residential address provided to the Minister by Mr Singh for the purpose of receiving documents;

   c)based on “evidence” provided by the Minister’s Department, the delegate's decision was sent within three working days of the date of the letter to Mr Singh’s postal address in Blacktown, New South Wales in accordance with ss.66(1) and 494B(4) of the Migration Act;

   d)Mr Singh was properly notified of the delegate's decision on 20 February 2012.  Accordingly, the prescribed period on which the application for review could be lodged ended on 12 March 2012;

   e)because the application for review was not received by it until 8 May 2012, after the prescribed period had expired on 12 March 2012, the application for review was not valid and the Tribunal had no jurisdiction in the matter.

   [7] CB 62-68

8. These proceedings began with a show cause application filed on 22 November 2012.  The applicant now relies upon an amended application filed on 1 February 2013.  There are several grounds in that application:

   1. The Migration Review Tribunal disallowed an application of 8 May 2012 for review of the first respondent’s decision apparently made on 9 February 2012 for being out of time.  The applicant had claimed through his migration agent that that the applicant denied ever having received the decision and that there was no evidence of the delegate’s decision ever having been despatched.  The Tribunal claimed to have examined the first respondent’s evidence of despatch and found that the first respondent had on 10 February 2012 despatched by registered mail its decision whereas the first respondent had apparently claimed that it had despatched it on 9 February 2012.

   2. The Tribunal raised no question about the curious appearance of the registered mail number appearing upon the first respondent’s decision when common sense would tend to view that the decision would first be made and then be handed to a quite separate despatch department rather than there being apparent linkage between them and registered packet numbers being provided for incorporation into the decision itself.

   3. The Tribunal raised no question about the absence of tracking information on the asserted despatch from AusPost which was pressed by the agent in his submission.

   4. True it is that the Migration Act 1958 deems communications to have been received once despatch has taken place, the act of despatch must, nevertheless, be established.

   4A. Prior to hearing the Tribunal’s staff, knowing full well that the question of despatch was in issue and in truth and in fact the only issue, sought ‘evidence from Converga NSW that the letter (of decision) was despatched within 3 working days of its date.’ The Tribunal’s decision at paragraph 18 said, ‘In reply the Department confirmed with evidence that the decision was despatched by prepaid registered post on 10 February 2012….’. However, s.363 empowers the Tribunal to receive sworn evidence on oath and this was not done.

   4B. SECT 362A Applicant entitled to have access to written material before Tribunal.  The Tribunal failed to advise the applicant of ‘the evidence’ that it had obtained from the Department and failed to advise the applicant of its contends contrary to SECT 359A

9. The Minister, in his submissions, has sought to reframe those grounds for ease of consideration.  The grounds of review can be summarised as follows:

   a)the Tribunal raised no question about the curious appearance of the registered mail number appearing on the delegate's decision when “common sense would tend to the view that the decision would first be made and then be handed to a quite separate despatched department rather than there being apparent linkage between them and registered packet number be provided for incorporation into the decision itself”;

   b)the Tribunal raised no question about the absence of tracking information on the asserted despatch from Australia Post which was pressed by the agent in his submission;

   c)the Migration Act deems communications to have been received once despatch has taken place, however, the act of despatch must be established;

   d)prior to the Tribunal's staff knowing the question of despatch was in issue they sought evidence from “Converga NSW” that the letter was despatched within three working days of its date. The Tribunal's decision at [18] stated the Department confirmed with evidence that the delegate's decision was sent by prepaid registered post on 10 February 2012. However, s.363 empowers the Tribunal to receive sworn evidence on oath and this was not done; (collectively, Ground 1); and

   e)section 362A entitled Mr Singh to have access to written material before the Tribunal. The Tribunal failed to inform Mr Singh of “The evidence that it had obtained from the Department and failed to advise the Applicant of its contents contrary to section 359A” (Ground 2).

10. The essential issue for me to resolve is whether the Tribunal was correct in finding at [20] of its reasons[8] that Mr Singh was notified of the decision of the Minister’s delegate by letter sent by registered post on 10 February 2012, and as a consequence the Tribunal lacked jurisdiction.

    [8] CB 68

11. The letter of notification appears in the court book, which I received as evidence, at page 29.  The letter bears a reproduction of a registered post sticker, bearing the number 486660659015, the words “file copy”, and a stamp with the word “posted” and the date 9 February 2012.  On its face that posted stamp supports the inference that the letter was posted on the date that it bore.  The Tribunal was clearly mindful that in order to resolve the jurisdictional issue before it, it needed to determine whether the letter of notification was sent by the Minister’s Department within three working days of the date that it bore.

12. The Tribunal was plainly not minded to let the matter rest on the basis of the stamp on the face of the letter of notification.  The court book records[9] that a Tribunal officer sought further information about despatch of the notification letter by email dated 30 May 2012.  The Department responded on 1 June 2012.  In that email the Department provided what appears to be a computer print from Departmental electronic records, and that is reproduced at page 53 of the court book.

    [9] CB 51 and 52

13. The computer record bears the number 16636, the date 10 February 2012, the number 997001486660659015, Mr Singh’s name, and the words “Blacktown, New South Wales, 2148”.  According to the Departmental officer this was evidence that the letter had been despatched on 10 February 2012, and not 9 February 2012 as indicated on the face of the letter.  The Tribunal invited comment from Mr Singh by a letter dated 13 August 2012.  That letter invited comment on the issue bearing upon the validity of his application, on the basis that the letter of notification was posted on 10 February 2012.

14. Mr Singh’s agent responded to that invitation by a facsimile dated 4 October 2012[10].  The agent supplied a photocopy of an Australia Post tracking report apparently obtained online in relation to the registered item number 486660659015.  The tracking report, under the heading “Status”, is blank, and under the heading “Date/Time”, “Activity” and “Location” states “no events found”.  The agent advanced the opinion that the tracking report indicates that delivery to Mr Singh of the notification letter was not attempted, and also submitted that in the absence of any evidence that the letter was posted it cannot be said that the Department despatched it.

    [10] CB 59 and 60

15. The Tribunal, in its findings and reasons from [13]-[20], reviewed the relevant legal principles and the available facts:

    The Tribunal has before it the Department’s and the Tribunal’s case files relating to the applicant.

    The material before the Tribunal indicates, and the Tribunal finds, that the applicant was not in immigration detention when notified of the decision.

    The Tribunal finds that the applicant is seeking review of an MRT-reviewable decision covered by s.338(2) and that the applicable prescribed period is 21 days, starting when the applicant was validly notified of the decision in accordance with the Act: s.347(1)(b)(i) and r.4.10(1)(a).

    The Tribunal is satisfied that the contents of the delegate’s decision notice complied with the requirements of s.66(2).

    The material before the Tribunal indicates that the applicant did not give the Minister written notice under s.494D of the name and address of an authorised recipient and that the decision notice, dated 9 February 2012, was sent by prepaid registered post on 10 February 2012 from a place in Australia to the applicant at an address in Australia, being the last residential address provided to the Minister by the applicant for the purposes of receiving documents.

    As the decision notice was sent by prepaid registered post, the Tribunal made enquiries with the Department to determine whether the letter was sent within 3 working days.  In reply, the Department confirmed with evidence that the decision notice was dispatched by prepaid registered post on 10 February 2012 to the applicant’s postal address in Blacktown, NSW.

    In his submission, Mr Bhattarai states that the applicant was not notified of the delegate’s decision and that the applicant claims that the absence of any postal delivery details on the enclosed on-line enquiry form from Australia Post “is conclusive evidence that delivery upon the applicant was not attempted.”

    Based on the Department’s confirmation with evidence that the decision notice was dispatched by prepaid registered post on 10 February 2012 to the applicant’s postal address in Blacktown, NSW, the Tribunal finds that the decision notice was dispatched within 3 working days of the date of the letter to the correct address, in accordance with s.66(1) and s.494B(4).  Therefore, the applicant is taken to have received the notice on 20 February 2012, being 7 working days after the date of the notice.

16. The Tribunal referred to the information provided by the Department, which the Department asserted established that the notification was sent on 10 February 2012, and the information provided by Mr Singh’s agent.  It is apparent from [20] of the Tribunal’s reasons that the Tribunal accepted the information provided by the Department and placed no weight on the information provided by the agent.

17. Mr Singh raises a number of contentions.  In my view, based on the information before it, the Tribunal was entitled to conclude that the notification letter was despatched within three working days of the date that it bore.  The inference available from the information provided by the Minister’s Department was that despatch occurred on 10 February 2012.  The information provided by Mr Singh’s agent did not support with any clarity a contrary inference.  It might support an inference that the postal item, although received by Australia Post, was not delivered.

18. Whether the Australia Post tracking report could support any other inference would depend upon the interpretation of the tracking report, which would require opinion evidence by someone familiar with the Australia Post postal delivery system, and the online tracking report system.  That evidence was not available to the Tribunal; neither is it available to me.  The solicitor for Mr Singh sought an adjournment in order to provide that additional evidence. I declined that request as it was raised late in the proceedings in submissions in reply, and there had, in my view, already been a sufficient opportunity for Mr Singh to provide evidence in support of his claims.  Further, the result of a search for additional evidence to interpret the tracking report is at best uncertain.

19. Mr Singh contends that the Tribunal, faced with the available information, should have made some further inquiry.  Given that the Tribunal found it lacked jurisdiction, the Tribunal was not subject to a duty of review, and an obligation to inquire would not arise by reason of failure to complete a review.  I do not rule out the possibility that a failure to inquire may, in particular circumstances, be unreasonable.  However, on the facts of this matter, in my view, it was reasonable for the Tribunal to reach its conclusion based on the Departmental information it already had.

20. Mr Singh also complains that he should have been given the opportunity to comment upon the Departmental information. Because there was no review for the Tribunal to conduct, s.359A of the Migration Act had no application. The Tribunal was, in my view, under an obligation to invite comment on the issue of the validity of the purported review application under the general law. The Tribunal met that obligation by sending its invitation to comment. In my view nothing further was required under the general law.

21. I otherwise agree with the contentions of the Minister in his written submissions at [10]-[17]. 

22. I conclude that I am not persuaded that the Tribunal erred in its determination of its jurisdiction.  It follows that the application before me must be dismissed, and I will so order.

23. The application having been dismissed, costs should follow the event.  The Minister seeks an order for costs in accordance with the Court’s scale as applicable at the time the original application was filed on 22 November 2012.  Mr Singh did not wish to be heard on costs. 

24. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,471.

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

Date:  5 June 2013