Skillington v Minister for Immigration and Border Protection
[2017] HCATrans 119
[2017] HCATrans 119
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S47 of 2017
B e t w e e n -
SANDRA MARGARET SKILLINGTON
Plaintiff
and
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Defendant
BELL ACJ
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON MONDAY, 29 MAY 2017, AT 9.29 AM
Copyright in the High Court of Australia
MR J. WILLIAMS: May it please the Court, I appear for the plaintiff. (instructed by Jay Williams)
MS A.M. MITCHELMORE: If the Court pleases, I appear for the defendant. (instructed by Australian Government Solicitor)
HER HONOUR: Yes, Mr Williams.
MR WILLIAMS: Yes, your Honour. The plaintiff has filed an amended application to show cause on 23 May 2017 and submissions in relation to that.
HER HONOUR: Yes, I have seen that and your submissions, Mr Williams. Could I just clarify, on the last occasion you indicated that you relied on the affidavits sworn by the plaintiff on 21 March 2017 and 19 April 2017, together with the affidavit of Tina Jillian Szmej, the migration agent, sworn on 10 March 2017.
MR WILLIAMS: That is correct, your Honour, yes.
HER HONOUR: Do you rely on that evidence today?
MR WILLIAMS: Yes, your Honour, yes.
HER HONOUR: Yes. For the purposes of the application, is there any objection, Ms Mitchelmore?
MS MITCHELMORE: No, your Honour.
HER HONOUR: And, Ms Mitchelmore, just to complete matters, do I understand that you rely on the affidavit of Mr Markus?
MS MITCHELMORE: Yes, that is right, your Honour, affirmed on 26 May 2017.
HER HONOUR: Thank you, Ms Mitchelmore. I take it there is no objection to that?
MR WILLIAMS: There is no objection, your Honour.
HER HONOUR: Yes, very well. Now, can I just clarify a matter arising out of that, Mr Williams? On the last occasion, you pointed out that your camp had only received some material as late as 18 April and you made some reference to the need to have the opportunity to assemble some evidence. I may have misunderstood things - was that in fact a submission directed to the opportunity that your client would wish to present evidence before the Tribunal?
MR WILLIAMS: That is correct, your Honour, yes.
HER HONOUR: So, to the extent that you assert in your amended pleading a denial of procedural fairness, that is directed to the consequence of the purported decision on which you rely – that is, the officer’s decision made on 24 February.
MR WILLIAMS: That is correct, your Honour, yes.
HER HONOUR: The consequence being ‑ ‑ ‑
MR WILLIAMS: The consequence being ‑ ‑ ‑
HER HONOUR: ‑ ‑ ‑ that the plaintiff is denied the opportunity for a review before the Administrative Appeals Tribunal.
MR WILLIAMS: That is the context, that is correct, your Honour, yes.
HER HONOUR: Well, now, Mr Williams, you have seen the submissions that the Minister makes. The matter comes down to the question of whether or not the officer, identified by the position number in your pleading, had any power to renotify your client. Now, you rely on passages in the Minister’s guidelines as supporting an implication that the duty to notify is a duty that may be exercised from time to time as circumstances arise and you would say in circumstances where it is clear that no notification was in fact received. Is that so?
MR WILLIAMS: That is correct, your Honour, yes.
HER HONOUR: Well, now, Mr Williams, exhibited to Mr Markus’ affidavit are the guidelines in full. The Minister contends that you have simply misapprehended their content. Is there anything you wish to put – is there any part of them that you direct my attention to that would overcome that submission?
MR WILLIAMS: Most certainly, your Honour. In the last set of submissions before the Court we did set out those PAM 3 guideline – the relevant sections – but indeed, page 56 of Mr Markus’ affidavit, the central question before the Court is whether the notification was discretionary or whether there is a positive obligation on the decision‑maker or the officer to renotify where there has been some breakdown in that notification process.
HER HONOUR: I take from your submissions that you are contending that as at 9 January 2017 when the envelope was returned to the Department unopened, there was an obligation on the delegate, who I think elsewhere is referred to as the case officer, to renotify, that officer being aware that no application for review of her decision had in fact been lodged, that time had expired and that the notification had not in fact been received.
MR WILLIAMS: Most definitely, your Honour, and indeed, the ‑ ‑ ‑
HER HONOUR: That is your case.
MR WILLIAMS: ‑ ‑ ‑ at 9 January and by that time the expiration date had expired. It was 21 December was the expiration date for filing ‑ ‑ ‑
HER HONOUR: Mr Williams, I understand that.
MR WILLIAMS: Certainly.
HER HONOUR: What I am directing your attention to is the basis for the argument ‑ ‑ ‑
MR WILLIAMS: Certainly, your Honour, yes.
HER HONOUR: ‑ ‑ ‑ that the delegate or any other officer was obliged in those circumstances to renotify, given that the material in your client’s April affidavit makes clear that notification in accordance with the statutory scheme had been effected and that is the ‑ ‑ ‑
MR WILLIAMS: Deemed, yes, your Honour ‑ ‑ ‑
HER HONOUR: Yes.
MR WILLIAMS: ‑ ‑ ‑ we would say there was a deeming effect on that section. Your Honour, the relevant part in the PAM guidelines is at page 56, where it says “Remedying defective notification”. Now, we understand that there is some question mark about what the effect of the PAM 3 guidelines are, but indeed, section 499(1) of the Migration Act provides – if your Honour has that - the Minister may publish directions concerning the performance of functions and exercise of powers under the Migration Act. Then by way of 499(2A), a person or body having functions or powers under the Migration Act must comply with such directions. The question will be whether PAM 3 guidelines fall into – as one of those directions.
HER HONOUR: Mr Williams, I think you may accept that the Minister is not walking away from his PAM 3 guidelines but the Minister makes two submissions. One, guidelines cannot override the statute. Two, the guidelines are not consistent with the construction for which you contend. That is the Minister’s submission. Now ‑ ‑ ‑
MR WILLIAMS: Sorry, your Honour, we take your Honour directly to the PAM 3 guidelines, but section 66 says a person must be notified and we say in this circumstance there has been some defect and under the heading on page 56, your Honour, of the PAM 3 guidelines attached to Mr Markus’ affidavit it says “Remedying defective notification”. So there is provision in these guidelines in circumstances where there has been some breakdown in the communication, and that is the heading on page 56.
HER HONOUR: Mr Williams, we come back to section 66(1) which requires the Minister to notify a visa applicant of the decision “in the prescribed way”. We move to regulation 2.16 which tells us that the prescribed way is “one of the methods specified in section 494B”.
MR WILLIAMS: Certainly.
HER HONOUR: One of those methods is by prepaid post in the way in which the notification was given to your client.
MR WILLIAMS: Yes, your Honour, yes.
HER HONOUR: So that to direct my attention to provisions of the Minister’s guidelines dealing with remedying defective notification seems to me not to advance your case.
MR WILLIAMS: No, your Honour, no, we see forward to what the statutory framework by which the PAM 3 guidelines should work and that is what I was attempting to address there and by no means are we seeking to challenge the legality of the deeming provisions. But what we are seeking to challenge is the decision, the decision by the officer not to renotify on that relevant date, 24 February. That is the problem that we have, and we say that that was unreasonable in the circumstances given that the officer had received the unopened envelope on 9 January, had taken some time – two to three weeks before taking any action, and then the client having to ‑ ‑ ‑
HER HONOUR: Mr Williams, I understand your argument based on unreasonableness if it be the fact that the officer had the discretion ‑ ‑ ‑
MR WILLIAMS: It was a discretion.
HER HONOUR: ‑ ‑ ‑ and it is that that is at the crux of this.
MR WILLIAMS: Indeed, your Honour, and that is where we do glean – what we do glean from the PAM 3 guidelines. At page 57, your Honour, if I can direct your attention, I think it is the third paragraph down – beginning with the words “In general”:
whether the department should renotify a client will depend on the facts of the particular case.
Those words in itself would indicate that there was some discretion, depending on the facts of the case. It then follows:
Officers should consider whether the client has suffered a practical detriment from the department’s failure to notify correctly and whether renotification will provide the client with a more beneficial visa pathway.
It then goes on:
If:
·the client has sought merits review within time or
·the AAT . . . has accepted jurisdiction of the review application
officers are not required to assess the department’s refusal notification or renotify the client.
The next line is important:
Officers should re‑notify the client, however, if:
·the client:
·did not seek merits review at all or
·did not seek review within time for a visa refusal decision and there is no evidence of actual notification.
That is the point of actual notification. So what we have here is that in the first instance there must be – the officer should consider on a case‑by‑ case basis. That would indicate a discretion as to whether or not to renotify.
HER HONOUR: You are directing my attention to the provisions of the guidelines that govern what an officer is to do when there has been, to use the language of the guidelines, “defective notification”, Mr Williams.
MR WILLIAMS: Or no actual notification, I think is a better way of describing it.
HER HONOUR: I am referring to the text of the guidelines, Mr Williams.
MR WILLIAMS: So am I, your Honour, which ‑ ‑ ‑
HER HONOUR: Well, can I ‑ ‑ ‑
MR WILLIAMS: They seem to use the word “defective” and “actual” interchangeably but I would say that there would be some difference there.
HER HONOUR: Mr Williams, can you perhaps focus on the text of the guidelines and the Act?
MR WILLIAMS: Yes.
HER HONOUR: If one goes to the text on page 57, under the heading “When the department should renotify”:
The following information provides general guidance on when the department should renotify a client if the original notice was defective and actual notification is not available.
MR WILLIAMS: That is correct, your Honour, they seem to be used slightly interchangeably.
HER HONOUR: All right. Is there some other part of the guidelines you want to direct my attention to, apart from those guidelines dealing with remedying defective notification?
MR WILLIAMS: Just in short, your Honour, what we say is that there seems to be a discretionary element to these guidelines that the officer should consider to do so on a case‑by‑case basis, but it goes down further there seems to be a positive obligation in the guidelines where it says they “should renotify the client”, however, in certain circumstances:
Officers should re‑notify the client, however, if:
·the client:
·did not seek merits review at all or –
and this is the case in this matter:
·did not seek review within time for a visa refusal decision and
·there is no evidence of actual notification.
We would say that our client in these circumstances meets those requirements, or meets those ‑ ‑ ‑
HER HONOUR: The function of a statutory scheme for the deemed notification of a refusal application which in turn generates the commencement of time running for a review mechanism that has an inflexible cut‑off date, what does one make of that, Mr Williams?
MR WILLIAMS: We raised that on the last occasion, your Honour, that relevant section in 494C, in that last section of the deeming provision, and there seems to be – if we can have a look more closely at that ‑ ‑ ‑
HER HONOUR: I thought you had abandoned 494C(7).
MR WILLIAMS: Well, we have. We are not seeking to challenge that all, your Honour, except though it does leave the door open as to be the deeming provision being when it was received or if there was some error then when the plaintiff can show that it was received. We are not wanting to – yes.
HER HONOUR: The relevant words are “if there was some error”.
MR WILLIAMS: Yes, but in the circumstances, your Honour, what we have done is we have amended the application, we have brought it back to specifically focus in on the officer’s decision not to renotify. In the circumstances, the PAM 3 guidelines indicate that there is some discretion there on a case‑by‑case basis, and indeed, where there is – where merits review has not been made, then there is a positive obligation to renotify and that was the failure. That is what we say was unreasonable. It does not go any higher than that, your Honour.
HER HONOUR: Yes. What do you say to the Minister’s submission that time should not be extended?
MR WILLIAMS: Your Honour, in terms of the renotification, so far as the decision not to renotify, we do not say that that is a migration decision. We say that that is an auxiliary decision. It is not strictly a privative clause decision. There is some confusion around that. We effectively have a number of dates as to being what the starting point is – 16 November 2016 plus 35 days takes us to 21 December for the notification. The
renotification decision was made on 24 February. If we are taking the decision to be 24 February – that is, the refusal of the renotification, there is no extension of time needed. We say that the renotification decision is not a migration decision, it falls outside of that, and therefore this matter is able to be remitted. If the renotification decision is deemed to be a migration decision, then it would not be able to be remitted to the Federal ‑ ‑ ‑
HER HONOUR: If it were a primary decision.
MR WILLIAMS: That is right, a privative decision.
HER HONOUR: A primary decision relevantly.
MR WILLIAMS: Yes. So if the effective date of reception was 16 November, then the plaintiff is out of time. If the decision is - the date of the refusal to renotify is 24 February, it is within time, and if the date of the decision is when the plaintiff received the decision by freedom of information, 28 February, it is also within time. That is the only reason why, your Honour. I have drawn up another amended application. If extension of time was needed, we could simply insert that. We would say it is in the interests of justice to grant an extension of time for the reasons that we have highlighted in the previous submissions and again that we highlight in these submissions. It is plainly unfair on the plaintiff and the impact on her and her family will be severe.
HER HONOUR: Yes, thank you.
MR WILLIAMS: Thank you, your Honour.
HER HONOUR: Yes, Ms Mitchelmore.
MS MITCHELMORE: Your Honour, if I can just deal first with my friend’s submissions this morning in relation to the guidelines, and in particular his reliance on page 57.
HER HONOUR: Yes, thank you.
MS MITCHELMORE: Can I take your Honour back to page 56 of Mr Markus’ affidavit?
HER HONOUR: Yes, thank you.
MS MITCHELMORE: Your Honour will see that there is a heading, “Remedying defective notification”, so it is the heading of the section. Your Honour will see under “Background”, “This section applies”, so it is just after the first three bullet points.
HER HONOUR: Yes.
MS MITCHELMORE: So the section applies if first of all the notification does not comply with the requirements of section 66 relevantly, or it complies with the requirements of section 66 but the deeming provisions cannot be relied on and there is no evidence of actual notification. So, in my submission, the way in which the PAM 3 is operating is consistent with the scheme set out in the Act insofar as the first stop is have you complied with the content requirements of section 66 and have you complied with the manner of the prescribed way of notifying the decision consistently with section 66 and the prescription of section 494B. If you have not then there might be a situation consistently with section 494C(7) where you still have actual notification and the time limit might still run in that context.
HER HONOUR: Yes.
MS MITCHELMORE: If you do not have any of those options, then you are looking at page 57 and whether or not you need to renotify because, in effect, the obligation in section 66(1) has not been discharged.
HER HONOUR: Yes, and I understand the Minister’s submission is this is the 66(1) duty; once discharged the duty, as it were, is exhausted because of the statutory scheme. You refer, amongst other things, to the provisions of section 5(9) and 9A dealing with the concept of an application that is finally determined.
MS MITCHELMORE: That is right.
HER HONOUR: Now, that has some consequences I think in relation to the circumstances in which a person might be removed from Australia.
MS MITCHELMORE: Yes, I was going to take your Honour to section 198 of the Act ‑ ‑ ‑
HER HONOUR: Yes, thank you.
MS MITCHELMORE: ‑ ‑ ‑ but obviously the way the provisions are meant to operate, as your Honour put to my friend, is that one is dealing with strict time limits – relevantly here, section 347(1) of the Migration Act for applications for review of the decisions to the Tribunal, and the definition of “finally determined” in section 5(9) deals with the situation in which relevantly for present purposes a decision has been made and the period within which a review could be instituted has ended without a review having been instituted as prescribed and that all hinges on the notification scheme in sections 494B and C.
The concept, if I could take your Honour to section 198, it specifically deals with – at least some of the subsections deal with or have the concept of finally determined. So your Honour will see in subsection (2) of section 198 an obligation on an officer to “remove as soon as reasonably practicable an unlawful non‑citizen” who is covered by section 193, those paragraphs of section 193 which deal, for example, with persons who have been detained under 189 on being refused immigration clearance, bypassing immigration clearance, being prevented from leaving a vessel, entering Australia after particular dates or being detained under particular provisions of section 189, and they have not subsequently been immigration cleared and they have either not made a valid application for a substantive visa that can be granted when the applicant is in the migration zone, or (ii) of paragraph (c):
has made a valid application for a substantive visa, that can be granted when the applicant is in the migration zone, that has been finally determined.
So the obligation on removal is triggered relevantly in relation to the final determination. Your Honour will also see section 198(5A), which is a carve‑out to subsection (5). So your Honour will see there is an obligation to remove an unlawful non‑citizen if they are a detainee – have neither applied for a substantive visa nor applied for revocation under 137K regardless of whether they have made a valid application for a bridging visa and the exception is there has not been final determination of the protection visa application.
So those provisions specifically pick up the concept of “finally determined” but of course more generally, your Honour, there is a difficulty presented by my friend’s argument that there is a discretion to renotify in terms of more general obligations on an officer who has to administer the obligations under the Act. For example, the obligation to detain under section 189 is to detain who the:
officer knows or reasonably suspects . . . is an unlawful non‑citizen –
So it is a general obligation to detain. If section 66(1) confers a discretion to renotify which could be re‑exercised on multiple occasions and could yet be re‑exercised at the time of the officer’s consideration of a person’s visa status, it complicates, in my submission, the consideration of that status for the purposes of the officer considering their obligations under section 189.
Similarly, the more general obligation under section 198(1), which is the general removal obligation, is similarly complicated, in my submission, in circumstances where an officer is not able to be certain as to whether or not the notification and review process in relation to a person’s visa application is in fact at an end because there may be a discretion to renotify that has yet to be exercised.
For those reasons, your Honour, combined with the submissions that I have made in relation to the operation of the scheme, it simply is not a situation where, in my submission, there is a discretion in section 66(1) to renotify and that has consequences, in my submission, in terms of how one characterises ‑ ‑ ‑
HER HONOUR: The decision.
MS MITCHELMORE: ‑ ‑ ‑ the decision ‑ ‑ ‑
HER HONOUR: Yes.
MS MITCHELMORE: ‑ ‑ ‑ that is being put or raised by my friend in his amended application because the affidavit of the plaintiff’s migration agent, Ms Szmej – I am not sure how one pronounces her name but I will go with that for present purposes – if your Honour looks at paragraph 3 of that affidavit, your Honour will see that the purpose for which the migration agent and the plaintiff were attending the offices of the Department on 24 February related to a bridging visa application which was going to expire on 24 February and paragraph 3 of the affidavit refers to the plaintiff having been given a form for the purposes of further extending the bridging visa application that was going to expire.
The decision of the officer, in my submission, on that day was to grant the plaintiff a BVE – Bridging Visa E – giving her a further 14 days to depart. Now, that is a decision within the extended definition of section 474(3) which sets out the various matters that can constitute a decision, specifically paragraph (b). It is a primary decision within the meaning of section 476(4).
HER HONOUR: So that excludes remitter.
MS MITCHELMORE: That is right, that is right. But in making that decision, the officer had to consider whether the obligation to notify had been discharged and the conclusion of the officer on the evidence was that it had and, in my submission, that decision or conclusion of the officer was correct. But by contrast with the decision on the bridging visa, that conclusion does not, in my submission, fall within any of the paragraphs in section 474(3), which is what is a decision for the purposes of the definition of privative clause decision in subsection (2).
If it falls within any of them it would most likely be paragraph (g), which is doing or refusing to do any act or thing but, in my submission, it cannot be enough for the purposes of that paragraph that an officer is being asked to do something and refuses. One would have to tie it, in my submission, to an obligation or a discretion vested in the officer in question under the Act and, for the reasons I have outlined in my written submissions and I have dealt with this morning, in my submission, there is no discretion in section 66(1) onto which one might be able to impose that obligation such that there is a relevant decision that is being challenged here.
HER HONOUR: Can I just take up with you the question of in the way your submissions are framed they pose an extension of time?
MS MITCHELMORE: Yes.
HER HONOUR: There is some controversy about how one characterises the decision that is now sought to be impugned, but it is a decision said to have been made on 24 February.
MS MITCHELMORE: Yes.
HER HONOUR: The present proceedings were commenced on 10 March.
MS MITCHELMORE: Yes.
HER HONOUR: On a view, section 486A is not engaged.
MS MITCHELMORE: Yes.
HER HONOUR: On that view, if I read your submissions, the Minister says on the preferred view there is no capacity to remit. Secondly, the plaintiff’s argument is hopeless and for that reason were an extension required it would not be in the interests of the administration of justice to grant it.
MS MITCHELMORE: Yes.
HER HONOUR: If an extension is not required, what does the Minister submit?
MS MITCHELMORE: Well, your Honour, of course, our primary position is that an extension is required because notwithstanding that the proceedings were commenced on 10 March, they were not at that time a challenge to this decision. The manner in which the proceedings commenced were a challenge to a decision of the Minister ‑ ‑ ‑
HER HONOUR: I understand that.
MS MITCHELMORE: ‑ ‑ ‑ in relation to the cancellation of the plaintiff’s – or refusal to grant the plaintiff’s visa. So, in effect, the effect of the amendment is to raise a new cause of action, in my submission, in relation to a different decision which, in my submission, for which an extension of time is required because, notwithstanding the date of the commencement, what in fact was commenced at that time has been abandoned.
There was a further attempt to amend on around about 19 April and again, in my submission, the amendments that are the subject of the amended application now deal with a different decision and a challenge to a different decision. So, for that reason, in my submission, an extension of time is required because the proceedings relate to a decision that is not the subject of the application as it was filed on 10 March.
If your Honour is satisfied or is of the view that an extension of time is not required, and your Honour is further satisfied that there is a decision that has been made by the officer in the manner that my friend has pleaded, then, I think as we have said in our written submissions, the Minister would accept that that is not a primary decision in respect of which the Federal Circuit Court would not have jurisdiction. However, in my submission, as it is pleaded and for the reasons I have outlined, the application is without merit ‑ ‑ ‑
HER HONOUR: Indeed.
MS MITCHELMORE: ‑ ‑ ‑ and in terms of exercising the discretion to remit, in my submission, the matter could properly be dealt with by this Court rather than remitting the matter for it to be dealt with by the Federal Circuit Court.
HER HONOUR: And dealt with by making the orders that you claim to dismiss the application.
MS MITCHELMORE: Yes, your Honour.
HER HONOUR: On that view, you bearing the onus of establishing that it does not pass the General Steel test.
MS MITCHELMORE: Raise an arguable case, yes.
HER HONOUR: Yes.
MS MITCHELMORE: So it depends upon whether or not your Honour is satisfied that there is a relevant decision here that is capable of challenge and then what follows from that.
HER HONOUR: Yes.
MS MITCHELMORE: Just pardon me a moment, your Honour.
HER HONOUR: Yes, indeed.
MS MITCHELMORE: Yes, I am reminded by Mr Markus, your Honour, that insofar as questions of onus are concerned, this is of course an application for an order to show cause, so in the first instance, it is for the plaintiff to establish that there is an arguable case for an entitlement to an order nisi. So I perhaps was a bit hasty to accept the issue of onus being on my side at this stage ‑ ‑ ‑
HER HONOUR: A fair point, Ms Mitchelmore, yes.
MS MITCHELMORE: ‑ ‑ ‑ so I am grateful to my solicitor for that but yes, subject to that matter, of course.
HER HONOUR: Yes. Ms Mitchelmore, do you know of any authority on this question? The proceedings themselves were commenced on 10 March.
MS MITCHELMORE: Yes.
HER HONOUR: True it is, it is now proposed to rely on an amended application.
MS MITCHELMORE: Yes.
HER HONOUR: But in terms of the application of the provisions of section 486A(1), are you aware of any authority that would support the proposition that an extension would be required in these circumstances since relevantly it is the filing, as I understand your argument, of the amended application that engages the provision, as distinct from when the proceedings commenced.
MS MITCHELMORE: Yes. Your Honour, I am afraid I am not off the top of my head aware of any authority. It is something I could certainly look at if that would be of assistance. Just looking at the terms of
section 486A(1), the application is for a remedy to be granted in the exercise of the court’s original jurisdiction in relation to a migration decision. So the focus is upon the particular migration decision and the limitation is 35 days of the date of the migration decision in question.
So it was for that reason that, in my submission, I was making the point that this migration decision that is now the subject of challenge was not brought within 35 days of the date of the decision. It is for that reason, in circumstances where everything else has been abandoned, that I have made the submission that it is out of time.
HER HONOUR: Yes, thank you.
MS MITCHELMORE: Thank you, your Honour.
HER HONOUR: Yes, Mr Williams.
MR WILLIAMS: Just very quickly, your Honour, if I could direct your attention to the application for an order to show cause filed 10 March 2017, just to clarify that there is a sufficient nexus with the amended application. I think that is perhaps a way of looking at it. I do not have any authorities off the top of my head which could perhaps assist the Bench. There were three grounds initially and I am not too sure what my friend’s complaint is by saying there was – that the amended application filed 23 May is substantially different to the first application. The first application brings squarely into focus the decision on 24 February 2017. It mounts three grounds around it.
HER HONOUR: I am sorry. The initial application filed on 10 March seeks ‑ ‑ ‑
MR WILLIAMS: The plaintiff was denied procedural fairness with regards to the decision on 24 February 2017. It directly brings into focus that question.
HER HONOUR: Mr Williams, I am looking at the relief claimed.
MR WILLIAMS: Yes.
HER HONOUR: The relief claimed seeks an extension in relation to an application to show cause respecting the decision of the delegate to refuse the partner visa dated 16 November 2016.
MR WILLIAMS: Yes, your Honour, and that was subsequently amended.
HER HONOUR: Yes, I understand that. That is the point in issue.
MR WILLIAMS: Yes, but indeed, grounds 1, 2 and 3 on the ‑ ‑ ‑
HER HONOUR: If one goes to the provision, it is directed to an application for a remedy to be granted ‑ ‑ ‑
MR WILLIAMS: That is right, your Honour, yes.
HER HONOUR: ‑ ‑ ‑ in relation to a migration decision. The application for the remedy in relation to a migration decision on 10 March was for a remedy respecting the decision of 16 November 2016.
MR WILLIAMS: That is correct, your Honour, but the point being made now in relation to that was that the only way that the applicant or the plaintiff could review her partner visa was to make an original application to this Court given the statutory bars and that is why it was framed in that way. Subsequent to the directions, that has been modified but the plaintiff would submit that there is sufficient connection to the 10 March application in that respect.
HER HONOUR: Yes. Thank you.
MR WILLIAMS: If there is anything else, your Honour?
HER HONOUR: On 10 March 2017, the plaintiff filed an application for an order to show cause claiming declaratory and constitutional and other writ relief in respect of a decision made by a delegate of the defendant, the Minister for Immigration and Border Protection (“the Minister”), to refuse the plaintiff a permanent partner visa (“the refusal decision”). The refusal decision was a migration decision and the application was required to be made within 35 days of the date of the decision[1]. The prayers for relief included an order extending time.
[1] Migration Act 1958 (Cth), s 486A(1).
On 19 April 2017, the plaintiff served an amended application which abandoned the challenge to the refusal decision and which challenged the purported decision of the Minister’s delegate made on 24 February 2017 to refuse to renotify the plaintiff of that decision. The matter came before me on 20 April 2017. On that occasion the Minister opposed the grant of leave to proceed on the amended application and the extension of time submitting that it was not in the interests of the administration of justice to make either order in circumstances in which neither the application, nor the proposed amended application, disclosed an arguable case for the relief claimed.
In circumstances in which the plaintiff had only received documents under the Department of Immigration and Border Protection (“the Department”) freedom of information procedures on 18 April 2017, leave was given to prepare a further amended application remedying the deficiencies in the draft exhibited in her affidavit filed on 19 April 2017.
Before turning to the amended application filed pursuant to that leave on 23 May 2017, I propose to refer to the uncontested factual background and to the scheme of the Migration Act 1958 (Cth) (“the Act”) respecting notification of the refusal of visa applications.
The plaintiff is a citizen of Ireland. On 1 May 2013 she lodged an application for a Temporary Partner visa and a Permanent Partner visa based on her marriage to an Australian citizen. Following lodgement of the application the plaintiff advised the Department of changes in her residential address on two occasions. The last notification informed the Department that from 28 April 2016 the plaintiff’s address for receipt of correspondence was 18 Gantry Lane, Camperdown. On the same form the plaintiff stated her willingness to receive communications from the Department by email. The evidence suggests that thereafter the plaintiff received communications from an officer described as her case worker, who appears to have been the delegate who made the refusal decision, by email.
Under section 66(1) of the Act, the delegate was required to notify the plaintiff of the refusal decision in the prescribed way. In circumstances in which, as here, the application was refused because the applicant did not satisfy a criterion for the grant of the visa, the delegate was required to give written reasons why the criterion was not satisfied. The delegate was also required to inform the unsuccessful applicant of the right to apply for a review of her decision in the Administrative Appeals Tribunal (“the Tribunal”) and the time within which an application for a review must be made[2].
[2] Migration Act 1958 (Cth), s 66(2).
An application to the Tribunal to review the refusal decision was required to be given to the Tribunal within 28 days after the notification of the decision. The Tribunal has no power to extend that time limit. Regulation 2.16 of the Migration Regulations 1994 (Cth) states how a decision to refuse a visa application is to be notified to an applicant. Relevantly, the Minister is required to notify the unsuccessful applicant by one of the methods specified in section 494B of the Act. These methods include by dispatching the notification by prepaid post to the last residential address provided to the Minister for the purpose of receiving documents by the applicant. They also include by transmitting the notification by email to the last email address provided to the Minister for the purposes of receiving documents.
By letter dated 16 November 2016, the delegate sought to notify the plaintiff of the refusal decision and to advise her of the right to apply to the Tribunal for a review of that decision (“the refusal notification”). On 16 November 2016, the refusal notification was dispatched by prepaid post addressed to the plaintiff at 18 Gantry Lane, Camperdown. An attempt was made to deliver the refusal notification on 18 November 2016. Thereafter, it appears that the refusal notification was kept at the Missenden Road Post Office awaiting collection. The refusal notification was returned unopened to the Department on 9 January 2017.
Prior to that, on 3 January 2017, the delegate became aware that the plaintiff’s bridging visa had expired on 23 December 2016 and noted that there was no record of the plaintiff lodging an application with the Tribunal for review of the refusal decision. The delegate also noted that the refusal notification had not been returned to the Department.
The plaintiff first became aware that her application had been refused in early February 2017 when she attempted to use her Medicare card and was informed that it had expired and that she should make contact with the Department. On 9 February 2017, the delegate informed the plaintiff by email of the refusal of her visa application and instructed her to contact the Department’s Compliance Section. On 10 February 2017, the plaintiff attended the Compliance Section and informed a Compliance Officer that she had not received the refusal notification. She was informed that the Department was investigating the notification process and that she could apply for a copy of the notification and decision record under the freedom of information procedures.
The plaintiff was granted a bridging visa pending the Department’s investigation of the notification process and a further appointment was made for her to attend the Compliance Section on 24 February 2017. The plaintiff was informed that if the process of notification was affected by error she would be given an extension of time to the date of actual receipt of the refusal notification.
On 24 February 2017, an officer holding the position number 6533 in the Compliance Section (“the officer”) stated that notification of the refusal decision had not been defective and that the officer had determined to issue the plaintiff with a further bridging visa for 14 days and to require her to depart from Australia within that time. In this conversation the officer stated that she had taken into account the Minister’s Procedures Advice Manual 3: Act ‑ Code of Procedure - Notification Requirements (“the PAM 3 guidelines”) respecting the use of a consistent method of communicating with visa applicants. The officer stated that it had been open to the delegate to notify the refusal decision by registered mail in accordance with the scheme of the Act and Regulations. The plaintiff was issued with a bridging visa and directed to leave Australia before 10 March 2017.
By her amended application the plaintiff claims relief in respect of the officer’s decision made on 24 February 2017 which is characterised as a decision to “refuse to re‑notify the plaintiff” of the refusal decision. She submits that in circumstances in which it is clearly established that she did not receive notification of the refusal decision it was legally unreasonable for the officer to refuse to renotify her, alternatively, that the officer denied her procedural fairness. She contends that in circumstances in which she had agreed to the receipt of communications from the Department by email, and in which the Department had communicated with her by that method, when the envelope containing the refusal decision was returned unopened to the Department, an obligation was imposed on the delegate to renotify her. She sources that obligation in section 66(1) of the Act and submits that her interpretation is confirmed by the PAM 3 guidelines governing the use of a consistent method to communicate with visa applicants and governing the remedying of defective notifications. The claimed denial of procedural fairness is not associated with the purported decision but with its consequences, which is that the plaintiff is denied the opportunity to present evidence and submissions before the Tribunal on a review of the refusal decision.
The Minister opposes the grant of an extension of time under section 486A(2) in which to bring a challenge in the original jurisdiction, submitting that the interests of the administration of justice are not engaged because the relief claimed in the amended application is misconceived and the proposed challenge hopeless.
There is an issue as to the necessity for the extension in circumstances in which it is said that the proceeding was commenced within 35 days of the decision now challenged. The plaintiff contends that on the uncontested evidence she is entitled to the relief that she claims or, alternatively, that the proceeding should be remitted to the Federal Circuit Court of Australia under section 44 of the Judiciary Act 1903 (Cth).
The Minister disputes that the officer’s decision can be characterised as a freestanding decision pursuant to section 66(1) to refuse to renotify the plaintiff. At most, he submits, it was a matter that the officer took into account in deciding what, if any, bridging visa to issue to the plaintiff. While the officer’s conclusion concerning notification may be subject to collateral challenge, the Minister maintains that this could only be in the context of a challenge to the bridging visa decision. The latter is a primary decision and it follows that the determination of the plaintiff’s application would have to remain in this Court[3].
[3] Migration Act, s 476(2)(a).
I propose to proceed upon acceptance without deciding that the plaintiff’s amended application is not caught by section 486A(1). The characterisation of the officer’s purported decision is critical. Without accepting the Minister’s submission that the proposed attack is upon the primary decision to issue the bridging visa, I would not remit the proceeding to the Federal Circuit Court if, accepting the factual basis on which the claim is advanced in the amended application, I am not persuaded that it discloses an arguable case for the grant of the relief that is claimed.
The Minister submits that had there been a defect in notifying the plaintiff of the delegate’s refusal decision, the duty imposed under section 66(1) would have required that the plaintiff be renotified. In circumstances in which the refusal notification was given to the plaintiff in the prescribed way, the Minister submits that neither his delegate who made the refusal decision, nor the officer who issued the bridging visa and direction to depart from Australia within 14 days was empowered to renotify the plaintiff, thereby starting time running afresh for the purposes of review.
The issue raised is whether the Minister’s duty to notify a decision to refuse a visa application may be exercised from time to time as occasion arises[4]. The Minister submits that the scheme under the Act for the notification of visa decisions tells against the existence of a discretion to renotify an applicant even where it is apparent that the applicant did not in fact receive the notification. I accept the Minister’s submission.
[4] Acts Interpretation Act 1901 (Cth), s 33(1).
The object of the scheme for the deemed receipt of notification, taken with the provisions of the Act governing the ascertainment of when an application is finally determined[5], are designed to provide certainty and finality in the management of a non‑citizen’s immigration status. The plaintiff’s willingness to receive departmental communications by email did not make communication by that medium the only prescribed way that the Minister’s delegate could notify her for the purposes of section 494B of the Act. Section 494C applies if the Minister gives a document to a person by one of the methods specified in section 494B. Where, as here, the Minister gives a document to a person by a method specified in section 494B(4) by dispatching the document by prepaid post to an address in Australia, the person is deemed to have received the document within seven working days after the date of the document. The plaintiff is taken to have received the refusal notification seven days after 16 November 2016.
[5] Migration Act, ss 5(9), (9A), and 198.
The PAM 3 guidelines are exhibited to the affidavit of Andras Markus. I accept the Minister’s submission that the plaintiff’s argument misconstrues them. To the extent that the guidelines contemplate renotification, they are addressed to cases in which the section 66(1) duty has not been discharged in the prescribed way and in which there is no deemed notification.
The Act contemplates that in a case in which the Minister makes an error in purporting to give a document to a person in accordance with a method specified in section 494B and the person nonetheless receives the document, the person will be deemed to have received it at the times mentioned in section 494C unless the person can show that he or she received it at a later time, in which case the person is taken to have received it at that later time[6]. Nothing in the guidelines lends support to the plaintiff’s submission that the officer had a discretion to decide to renotify the plaintiff notwithstanding that the duty had been discharged in conformity with the Act.
[6] Migration Act, s 494C(7).
So, too, is the plaintiff’s reliance on the decision of the Full Court of the Federal Court of Australia in MZZDJ v Minister for Immigration and Border Protection[7] misplaced. The court was there concerned with whether a properly authorised migration agent had effected a valid variation of the requirements for notice within the terms of section 494D(3). No question of variation of the plaintiff’s authority arises on the facts of her case.
[7] (2013) 216 FCR 153.
The contention on which the amended application proceeds, that the statutory duty to notify the plaintiff of the refusal decision was susceptible of being re‑exercised at the discretion of the officer, notwithstanding that notification had been effected in the prescribed way is, in my view, untenable.
For these reasons there will be the following order: the amended application is dismissed with costs.
Adjourn the Court.
AT 10.32 AM THE MATTER WAS CONCLUDED
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