Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 505
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 505
File number(s): MLG 198 of 2018 Judgment of: JUDGE LUCEV Date of judgment: 24 June 2022 Catchwords: MIGRATION – Judicial review – decision of the Administrative Appeals Tribunal – citizen of India – Student (Temporary) (Class TU) visa – cancellation notice – whether application for review by Administrative Appeals Tribunal within time – whether Administrative Appeals Tribunal had jurisdiction – whether jurisdictional error Legislation: Migration Act 1958 (Cth) ss 116, 347, 474, 476
Migration Regulations 1994 (Cth) regs 2.55, 4.10
Cases cited: AFP21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1322
CQP15 v Minister for Immigration & Border Protection [2017] FCA 854
Hasan v Minister for Immigration & Citizenship [2010] FCA 375; (2010) 184 FCR 523; (2010) 114 ALD 602
Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 377; (2000) 98 FCR 77; (2000) 171 ALR 53; (2000) 60 ALD 667
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
NACG v Minister for Immigration & Multicultural Affairs [2002] FCAFC 173
Pheng v Minister for Immigration and Multicultural Affairs [2000] FCA 1124; (2000) 102 FCR 283
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556
SZJDS v Minister for Immigration & Citizenship & Anor [2012] FCAFC 27; (2012) 201 FCR 1; (2012) 126 ALD 78
Tabet v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 446
Division: Division 2 General Federal Law Number of paragraphs: 23 Date of last submission/s: 20 June 2022 Date of hearing: 20 June 2022 Place: Perth The Applicant: Appeared in person (via telephone, with the assistance of an interpreter) Counsel for the First Respondent: Ms C. Oppel (via CISCO Webex) Solicitor for the First Respondent: Australian Government Solicitor For the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 198 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HARKAMALJEET SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
24 JUNE 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The originating application filed 25 January 2018 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
Before the Court is an application for judicial review filed by the applicant, Harkamaljeet Singh (“Mr Singh”), on 25 January 2018 (“Judicial Review Application”) in the Melbourne Registry of this Court, under s 476 of the Migration Act 1958 (Cth) (“Migration Act”). The Judicial Review Application concerns a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) handed down on 22 January 2018. The Tribunal Decision determined it had no jurisdiction to review a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the then Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”), to cancel Mr Singh’s Student (Temporary) (Class TU) visa (“Student Visa”).
JUDICIAL REVIEW APPLICATION
Background
The relevant background to the Judicial Review Application is as follows:
(a)on 9 November 2015 Mr Singh was granted the Student Visa: CB 26;
(b)on 7 August 2017 an officer at the then Department of Immigration and Border Protection (“Department”) requested that the education provider provide the last known contact details for Mr Singh, as well as the date on which those details were provided: CB 11-12;
(c)on the same date, an officer at the Department emailed Mr Singh informing him that the Department needed to issue an important written notification to him and requesting that he update his contact details within the next five days, as he had not done so recently. Relevantly, the email also stated that if Mr Singh did not respond to the email, the Department would send the notification to Mr Singh’s last known address according to the Department’s records: CB 10. No reply was received from Mr Singh;
(d)on 14 August 2017 the education provider provided Mr Singh’s most recent contact details (which had been provided to it on 20 July 2016) – relevantly, that Mr Singh’s most recent address was an address in Wheelers Hill in the state of Victoria (“Wheeler’s Hill Address”), and an email address was also provided (“Email Address”): CB 11;
(e)on 14 August 2017 Mr Singh was sent a notice of intention to consider cancellation (“NOICC”) by the Department pursuant to s 116(1)(b) of the Migration Act because Mr Singh had not complied with a condition of his Student Visa (namely Condition 8202, which required that he be enrolled in a registered course). Mr Singh had not been enrolled in a registered course since 18 October 2016. The NOICC sought a response from Mr Singh about the ground for cancellation (and reasons why his Student Visa should not be cancelled) within five working days of Mr Singh’s deemed receipt of the NOICC: CB 14-18. The NOICC was sent by registered post to the Wheelers Hill Address: CB 19, and was copied to the Email Address: CB 13-14. Mr Singh did not respond to the NOICC: CB 26;
(f)on 31 August 2017 the Delegate’s Decision was to cancel Mr Singh’s Student Visa: CB 20-29, and the Delegate sent the notification of cancellation (“Cancellation Notice”) to Mr Singh on 31 August 2017: SCB 1;
(g)the letter, enclosing the Cancellation Notice, was addressed to the Wheelers Hill Address, was sent by prepaid registered post: CB 30-31, and was also copied to the Email Address: CB 20-21;
(h)the envelope containing the letter enclosing the Cancellation Notice was returned to the Department marked “return to sender”, with the date of receipt by the Department stamped as 17 October 2017: CB 31.
(i)Mr Singh lodged an application for merits review with the Tribunal (“Tribunal Review Application”), which was received by the Tribunal on 29 December 2017: CB 32-33. Relevantly, Mr Singh listed a different email address to the Email Address as his email contact, but the same Wheelers Hill Address as his postal address: CB 33;
(j)on 8 January 2018 the Tribunal invited Mr Singh to comment on whether the Tribunal Review Application was valid: CB 38;
(k)on 16 January 2018 migration agent Mr Dildeep Singh (“Migration Agent”) came on the record for Mr Singh: CB 40-41, and the Migration Agent responded on Mr Singh’s behalf to the Tribunal’s request for comment from Mr Singh stating, relevantly at CB 42-46, that:
(i)there were compelling circumstances that justified an exercise of the Tribunal’s discretion to accept the Tribunal Review Application;
(ii)Mr Singh had updated his email address with the education provider;
(iii)the Department failed to use all avenues to contact Mr Singh, and, despite having Mr Singh’s phone number, did not use this to call or SMS Mr Singh to check whether Mr Singh had received the NOICC; and
(iv)the effect on Mr Singh of the cancellation of his Student Visa would be great; and
(l)on 23 January 2018 the Tribunal notified Mr Singh, via the Migration Agent, that the Tribunal had no jurisdiction to determine the Tribunal Review Application: CB 47-54.
Tribunal Decision
In the Tribunal Decision the Tribunal:
(a)outlined the legislative requirements relating to the time by which Mr Singh was required to lodge the Tribunal Review Application: being seven working days after Mr Singh was notified of the Cancellation Notice. The Tribunal was satisfied that the Cancellation Notice was notified to Mr Singh in accordance with statutory requirements: CB 52 at [2]-[3];
(b)referred to the submissions lodged on behalf of Mr Singh by the Migration Agent. In response to those submissions, the Tribunal noted that, at the time of Mr Singh’s Student Visa cancellation, Mr Singh did not have an authorised representative, and there was no obligation on the Minister to make any inquiries about Mr Singh’s most recent contact details: all that was required was for the Minister to send the Cancellation Notice in accordance with reg 2.55 of the Migration Regulations 1994 (Cth) (“Migration Regulations”): CB 52-53 at [7]-[9];
(c)concluded that the Department had complied with reg 2.55 of the Migration Regulations by sending the NOICC and the Cancellation Notice to Mr Singh’s last known email and postal addresses: CB 53-54 at [14], and in the absence of evidence in support, the Tribunal did not accept that Mr Singh had updated his former education provider about his new email contact details: CB 53 at [12];
(d)concluded that Mr Singh was deemed to have been notified of the Cancellation Notice on 11 September 2017 and that the prescribed period in which Mr Singh was required to lodge the Tribunal Review Application ended on 20 September 2017, and having lodged the Tribunal Review Application on 29 December 2017, Mr Singh was out of time, and the Tribunal did not, therefore, have jurisdiction to consider the Tribunal Review Application: CB 54 at [15]-[19].
Litigation History
The relevant litigation history of the proceedings in this Court is as follows:
(a)the Judicial Review Application was filed in the Melbourne Registry of the Court (then styled the Federal Circuit Court of Australia) on 25 January 2018;
(b)on 31 October 2018 a consent order was made by a Registrar of this Court with the usual first Court date programming orders and listing the matter for final hearing on a date to be determined by the Court;
(c)due to well-known and acknowledged significant delays in allocating migration judicial review applications in the Melbourne Registry of this Court to a Judge for hearing: see AFP21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1322 at [25] per Chief Judge Alstergren and Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556 at [7] per Judge Lucev, in November 2021 this matter was transferred to the Perth Registry of the Court and listed before the Court as presently constituted on 15 November 2021 for a directions hearing, whereat orders were made listing the matter for hearing on 20 June 2022 on which date the matter was heard.
Jurisdictional Error Required
For present purposes it suffices to observe that this Court may set aside the Tribunal Decision upon judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. An instance where the Tribunal:
(a)identifies a wrong issue;
(b)asks the wrong question;
(c)ignores relevant material; or
(d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, any authority or powers given to the Tribunal under the Migration Act, may constitute a jurisdictional error: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
Grounds
The grounds of the Judicial Review Application are as follows (unaltered):
1.I come from India and has been in Australia for the purpose of my studies. I was never contacted by the DIBP in Australia and was sent correspondence by DIBP to my old email address which I stopped using in Australia and advised to my school as well.
2.I had updated his email address with school and still DIBP contacted me on same email address I ceased and does not use it anymore.
3.DIBP has failed on their obligation when DIBP did not used all avenues to contact me in relation to the communication and so did AA T. This is clear error in law that AA T has not considered the fact that I should have been contacted by DIBP by multiple avenues.
4.DIBP had my phone number and did not attempt to contact me wether I have received Notice of Intention to Cancel Visa.
5.I have been in Australia and when DIBP sent an email to me requesting to confirm email address and as i do not use that email address anymore, i was unable to contact DIBP through email address. When I failed to respond, DIBP should have made more attempts to contact review applicant (making a phone call or sending a text message to me, which DIBP does to notify individuals who held Australian visa and did not depart after their visa expiry.). this is clear evidence of DIBP's lack of attempts to contact me and AAT has refused to accept that I have been treated unfairly and claimed that has no jurisdiction on this matter.
6.I am going through great deal of stress and anxiety and is relied on Tribunal member's courtesy to accept my application and give me chance to review this matter so that I could have justice, however, that has failed and now seeking to apply for review of this matter with FCC to seek justice and get orders made by AA T to be replaced by FCC new orders.
These six grounds can be distilled into two grounds as follows:
(a)whether there was jurisdictional error in the Tribunal Decision caused by reason of the Cancellation Notice not being sent to Mr Singh in a manner prescribed by the Migration Act and Migration Regulations (“Ground 1”); and
(b)whether there was jurisdictional error in the Tribunal Decision by reason of the stress and anxiety caused to Mr Singh by the Tribunal Decision (“Ground 2”).
Consideration
Ground 1 – Cancellation Notice
The basis for the Tribunal Decision was that Mr Singh had failed to lodge the Tribunal Review Application within the time prescribed by s 347 of the Migration Act. That meant that the Tribunal did not have the discretion to extend the time within which Mr Singh might file the Tribunal Review Application and that the Tribunal, therefore, had no jurisdiction to hear the Tribunal Review Application.
On 31 August 2017 the Cancellation Notice was sent to Mr Singh notifying him of the cancellation under s 116 of the Migration Act effective from 31 August 2017.
The methods by which a person may be notified of such a cancellation are prescribed by reg 2.55 of the Migration Regulations, which provides as follows:
2.55 Giving of documents relating to proposed cancellation, cancellation or revocation of cancellation
(1) This regulation applies to:
(a) the giving of a document to a holder or former holder of a visa relating to the proposed cancellation or the cancellation of a visa under the Act; and
(ab) the giving of a document under subsection 133E(2) of the Act relating to a decision to cancel a visa under subsection 133A(1) or 133C(1) of the Act; and
(b) the giving of a document under subsection 501G(3) of the Act relating to a decision to:
(i) cancel a visa under section 501, 501A, 501B, 501BA or 501F of the Act; or
(ii) not revoke a decision to cancel a visa under section 501CA of the Act; and
(c) the giving of a document to a holder or former holder of a visa relating to the revocation of the cancellation of a visa under the Act.
(2) However, this regulation does not apply in relation to:
(a) a notice to which section 137J of the Act relates; or
(b) a person who is in immigration detention.
Note: See regulation 5.02.
(3) Subject to subregulation (3A), for a document mentioned in paragraph (1)(a) or (c), the Minister must give the document in one of the following ways:
(a) by handing it to the person personally;
(b) by handing it to another person who:
(i) is at the person’s last residential or business address known to the Minister; and
(ii) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(iii) appears to be at least 16 years of age;
(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;
(d) by transmitting the document by:
(i) fax; or
(ii) email; or
(iii) other electronic means;
to the last fax number, email address or other electronic address known to the Minister.
Note:Subregulation (3A) deals with giving documents mentioned in paragraphs (1)(a) and (c) to minors.
(3A) If the person is a minor, the Minister must give a document mentioned in paragraph (1)(a) or (c) in 1 of the following ways:
(a) by handing it to the minor personally;
(b) by handing it to another person who:
(i) is at the last residential or business address for the minor that is known to the Minister; and
(ii) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(iii) appears to be at least 16 years of age;
(c) by dating and then dispatching the document:
(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 minor’s last residential address, business address or post box address known to the Minister;
(d) by transmitting the document by:
(i) fax; or
(ii) email; or
(iii) other electronic means;
to the minor’s last fax number, email address or other electronic address known to the Minister;
(e) by dating and then dispatching the document:
(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 a carer of the minor at the last residential address, business address or post box address for the carer of the minor that is known to the Minister;
(f) by transmitting the document by:
(i) fax; or
(ii) email; or
(iii) other electronic means;
to a carer of the minor at the last fax number, email address or other electronic address for the carer of the minor that is known to the Minister.
(4) Subject to subregulation (4A), for a document mentioned in paragraph (1)(ab) or (b):
(a) if the person has held the visa for less than 1 year when the document is to be given, the Minister must give the document in one of the ways mentioned in subregulation (3); and
(b) if the person has held the visa for at least 1 year when the document is to be given:
(i) Immigration must try to find the person; and
(ii) the Minister must give the document in one of the ways mentioned in subregulation (3).
Note:Subregulation (4A) deals with giving documents mentioned in paragraph (1)(b) to minors.
(4A) If the person is a minor:
(a) the Minister must give a document mentioned in paragraph (1)(ab) or (b) in 1 of the ways mentioned in subregulation (3A); and
(b) if the minor has held the visa for at least 1 year when the document is to be given, Immigration must try to find the minor.
(4B) If the Minister gives a document to a carer of the minor in accordance with this regulation, the Minister is taken to have given the document to the minor.
(4C) Nothing in subregulation (4B) prevents the Minister giving the minor a copy of the document.
(5) If the Minister gives a document to a person by handing it to the person, the person is taken to have received the document when it is handed to the person.
(6) If the Minister gives a document to a person by handing it to another person at a residential or business address, the person is taken to have received the document when it is handed to the other person.
(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; or
(b) in any other case—21 days after the date of the document.
(8) If the Minister gives a document to a person by transmitting it by fax, email or other electronic means, the person is taken to have received the document at the end of the day on which the document is transmitted.
(9) If:
(a) the Minister purports to give a document to a person by a method specified in this regulation but makes an error in doing so; and
(b) the person nonetheless receives the document or a copy of the document;
the Minister is taken to have given the document to the person and the person is taken to have received the document:
(c) at the time specified by this regulation for that method; or
(d) if the person can show that he or she received the document at a later time—at that later time.
By reason of reg 2.55(3)(c) of the Migration Regulations, a notification of a cancellation may be sent by prepaid post to an applicant’s last residential address known to the Minister. The evidence in this case is that the Cancellation Notice dated 31 August 2017 was sent to Mr Singh at the Wheeler’s Hill Address by prepaid registered post: CB 30-31.
Under reg 2.55(7) of the Migration Regulations, a notification of cancellation is required to be sent seven working days after the date of the document. In this case, seven working days after 31 August 2017 is 11 September 2017.
Under reg 4.10(1)(b) of the Migration Regulations, the time for lodgement with the Tribunal of an application for review of a notification of cancellation ends at the end of seven working days after the date that the notification of cancellation is taken to have been sent, in this case, that is seven working days from 11 September 2017, which is 20 September 2017.
In this case, the Tribunal Review Application was not lodged with the Tribunal until 29 December 2017, that is, more than three months out of time.
There is no question that, as a matter of law, the Tribunal has no discretion to accept an application for review of a cancellation notification outside of the prescribed time period: see, for example, Tabet v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 446 at 453-454 per Mansfield J (and cases there cited); Pheng v Minister for Immigration and Multicultural Affairs [2000] FCA 1124; (2000) 102 FCR 283 at [24]-[26] per Marshall J; SZJDS v Minister for Immigration & Citizenship & Anor [2012] FCAFC 27; (2012) 201 FCR 1; (2012) 126 ALD 78 at [33] per Rares and Cowdroy JJ.
There is also no question that, as a matter of law, the deeming provision in reg 2.55(7) of the Migration Regulations does not create a rebuttable presumption of fact, but is rather a deeming provision to be strictly applied: NACG v Minister for Immigration & Multicultural Affairs [2002] FCAFC 173 at [8] per Stone J; Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 377; (2000) 98 FCR 77; (2000) 171 ALR 53; (2000) 60 ALD 667 at [17] per O’Connor and Mansfield JJ.
The period in which an applicant has to lodge an application with the Tribunal for review of the Delegate’s Decision has been described as an “envelope of time”: Hasan v Minister for Immigration & Citizenship [2010] FCA 375; (2010) 184 FCR 523; (2010) 114 ALD 602 at [29] per North J. Even where there is no fault on the part of an applicant the time limit for an application for review to the Tribunal is strictly applied: CQP15 v Minister for Immigration & Border Protection [2017] FCA 854 at [44] per Kenny J. In this case, Mr Singh is outside of that period of time and as a consequence, the Tribunal had no jurisdiction to deal with the Tribunal Review Application.
At hearing, Mr Singh argued he should have been given “a fair chance to present [himself]” before the Tribunal: Transcript, p 4, line 20. In his grounds of review, Mr Singh argues that the Minister and the Minister’s Department ought to have made greater efforts to contact him and that they failed in their obligation to do so, by, for example, not contacting him by telephone or SMS.
The only obligation upon the Minister was to contact Mr Singh by one of the means set out in reg 2.55 of the Migration Regulations. The Minister did so by sending the Cancellation Notice by prepaid registered post, thus complying with the requirements of reg 2.55(3)(c) of Migration Regulations permitting dispatch by prepaid post to the last address known to the Minister for Mr Singh. That address was the Wheeler’s Hill Address, which the evidence establishes was an address notified to the Minister’s Department by Mr Singh on 14 August 2017, and which remained current until 8 February 2018 (when the same address was renotified to the Minister’s Department): Affidavit of Catherine Oppel, affirmed 20 June 2022, at [2.1] and Annexure CO-01.
It follows from the foregoing that Mr Singh was sent the Cancellation Notice by prepaid registered post to an address notified by him to the Minister, that Mr Singh failed to lodge the Tribunal Review Application within the statutorily mandated time period, and that the Tribunal, therefore, had no jurisdiction to consider the Tribunal Review Application. The Tribunal Decision that it had no jurisdiction was, therefore, the correct decision, and not one affected by jurisdictional error.
Ground 2 – Stress and anxiety
Mr Singh has not substantiated this ground in any way. In any event, the Tribunal was not permitted to take into account extenuating circumstances in relation to why Mr Singh lodged the Tribunal Review Application out of time as it had no discretion to extend the time for lodgement or to take into account any extenuating circumstances: see [15]-[17] above. This ground does not, therefore, establish jurisdictional error in the Tribunal Decision.
CONCLUSION AND ORDERS
The Court has concluded that the grounds of the Judicial Review Application have not been made out and that the Tribunal Decision was not affected by jurisdictional error. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 24 June 2022
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