SZSWF v Minister for Immigration
[2015] FCCA 250
•11 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSWF & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 250 |
| Catchwords: MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal erred in finding that it did not have jurisdiction – whether letter enclosing delegate’s decision was dispatched to the correct addressee and/or to the correct address – whether notification of the delegate’s decision in accordance with s.66(2) of the Migration Act 1958 (Cth) – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.66, 91X, 411, 412, 494B, 494C, 494D |
| Benissa v Minister for Immigration & Anor [2010] FMCA 657 Chan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 308; [2003] FCA 1292 Cheng v Minister for Immigration and Citizenship and Another (2011) 198 FCR 559; [2011] FCA 1290 Commissioner of Taxation and Others v Citibank Limited (1989) 20 FCR 403; (1989) 85 ALR 588 Kioa and Others v West and Another (1985) 159 CLR 550 at 584; [1985] HCA 81 Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 77; [2000] FCA 377 Sainju v Minister for Immigration and Citizenship and Another (2010) 185 FCR 86; [2010] FCA 461 Singh v Minister for Immigration & Anor [2010] FMCA 1000 SZNZL v Minister for Immigration and Citizenship and Another (2010) 186 FCR 271; [2010] FCA 621 VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570; [2003] FCAFC 311 Zhan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 469; [2003] FCA 327 |
| First Applicant: | SZSWF |
| Second Applicant: | SZSWG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1100 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing dates: | 18 February 2014 and 2 July 2014 |
| Delivered at: | Sydney |
| Delivered on: | 11 February 2015 |
REPRESENTATION
| Counsel for the Applicants: | Mr D Hughes |
| Solicitors for the Applicants: | D’Ambra Murphy Lawyers |
| Counsel for the Respondents: | Ms A Mitchelmore |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 1100 of 2013
| SZSWF |
First Applicant
| SZSWG |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal dated 30 April 2013. The Tribunal found that it did not have jurisdiction to review a decision of a delegate of the First Respondent refusing to grant protection visas to the Applicants.
The First Applicant is a citizen of the People’s Republic of China. She applied for a protection visa on 15 May 2012. The Second Applicant was born in Australia in September 2012. She is the daughter of the First Applicant and was included in the protection visa application as a member of her mother’s family unit. For convenience the First Applicant is referred to as the Applicant.
The Applicant arrived in Australia in July 2007 as the holder of a student visa. In her protection visa application she claimed that she left China because of her religious beliefs and activities. She claimed that she was afraid that she would be arrested and imprisoned by the Chinese authorities if she returned to China because her family was involved in the underground Catholic church and had been targeted by the Chinese PSB. She described claimed past events in China and her religious activities in Australia.
In her application the Applicant provided a residential street address and a separate postal address. The postal address was described as a particular PO Box, Homebush West, NSW 2140. The Applicant also provided supporting documentation and a supplementary submission dated 20 May 2012 elaborating on her claims. She attended an interview with the delegate on 23 November 2012.
As discussed further below, the notification of the delegate’s decision refusing the protection visa application was sent to the Applicant by letter dated 14 December 2012 enclosing the decision record (the notification letter). The letter was addressed to the postal address the Applicant had provided in her protection visa application. On the letter and the envelope in which the letter was posted the Applicant’s name was recorded as Ms [family name] [given names]. The salutation in the letter addressed the Applicant as Ms [family name]. The copy of the notification letter in the Court Book bears a registered post sticker.
On 19 March 2013 the Applicant lodged an application for review of the delegate’s decision. Attached to the review application was what appears to be a photocopy of an Australia Post “Advice of Postal Item Awaiting Collection” card bearing no details other than a number which is the same as the Post Office Box number in the address the Applicant provided in her protection visa application and an annotation “Received by 15/03/2013”.
By letter of 2 April 2013 the Tribunal asked the Applicant to comment on the validity of the application for review, in particular on whether the application was invalid on the basis that it was not lodged within the relevant time limit of 28 days from the date on which the Applicant was taken to have been notified of the primary decision. The letter advised that the delegate’s decision was posted to the Applicant on 14 December 2012 and explained that on that basis she was taken to have been notified of the delegate’s decision on 2 January 2013, so that the last day for lodging the application for review was 24 January 2013, but that it had not been received until 19 March 2013.
On 17 April 2013 the Applicant replied to the Tribunal. She claimed that she first received a copy of the delegate’s decision from an officer of the Department of Immigration in Lee Street on 11 March 2013 when she made enquiries about the progress of her application. She stated that on 1 March 2013 she had received a telephone call from Red Cross in relation to the progress of her protection visa application and that after she told them that she had not heard from the Department, the Red Cross advised her that a decision had been made and that she should contact the Department. She claimed she did so on 11 March 2013 accompanied by a friend who spoke English. She claimed that a departmental officer advised her that her application for a protection visa had been refused on 14 December 2012, that her bridging visa had ceased on 20 January 2013 and that they would investigate why the documents had not been delivered to her. The officer gave her a copy of the delegate’s “decision documents”.
The Applicant also claimed that on 15 March 2013 she received a parcel collecting notice (card) from the Post Office, a copy of which she had provided to the Tribunal. She claimed that she had collected the delegate’s “decision documents” from the Post Office and that the Post Office had been unable to explain why the delegate’s letter was delivered so late.
The Court Book also contains an Australia Post “Track your item” record apparently obtained on 23 April 2013. It provides a “Tracking summary” in relation to the item with the “Tracking ID: 491836739019”. This number is the same as the number appearing on the registered post sticker on the notification letter. It records that this item was sent by registered post and delivered on 15 March 2013 at 14:40 at the “facility” at “Homebush NSW”.
The Tribunal Decision
On 30 April 2013 the Tribunal determined that it did not have jurisdiction to review the delegate’s decision. It found that pursuant to s.412(1)(b) of the Migration Act 1958 (Cth) (the Act) and reg.4.31 of the Migration Regulations 1994 (Cth) (the Regulations) an application for review had to be made within 28 days after the Applicant was notified of the decision of the delegate in accordance with the statutory requirements.
The Tribunal found that the material before it indicated that the Applicant was notified of the delegate’s decision by letter dated 14 December 2012 and dispatched by post. The Tribunal was satisfied that the Applicant was notified of the decision in accordance with the statutory requirements.
The Tribunal stated that it had considered the Applicant’s submissions of 17 April 2013 and her evidence that she only received the delegate’s decision on 11 March 2013. However it was of the view that in accordance with s.494C of the Act the Applicant was taken to have received the document sent by prepaid post 7 working days after its date, whether or not she actually received it.
On this basis the Tribunal found that the Applicant was taken to have been notified of the delegate’s decision on 2 January 2013 and that the prescribed period within which she could make an application for review had ended on 24 January 2013. The Tribunal found that as the application for review was not received by it until 19 March 2013 it was not made in accordance with the relevant legislation. The Tribunal concluded that it had no jurisdiction in the matter.
This Application
The Applicant (and her daughter) commenced proceedings in this Court by Application filed on 21 May 2013. The Applicant filed an Amended Application on 18 February 2014. On 19 March 2014 she filed a Further Amended Application which contains three grounds of review. Each of these grounds relates to the notification of the delegate’s decision and takes issue with the Tribunal’s finding that it did not have jurisdiction to review the delegate’s decision because the review application was lodged outside the time provided for in the Act and Regulations.
In essence and as considered further below, Ground One asserts that the delegate made an error within s.494C(7) of the Act in that the name of the addressee on the envelope containing the notification letter was incorrectly described as Ms [family name] followed by [given name] whereas she should have been addressed as Ms [given name] followed by [family name] and hence that as the Applicants were taken to have been notified of the decision at the time the notification letter was actually received on 15 March 2013 the Tribunal erred in holding that the review application was made out of time.
Ground Two is that the purported notification of the delegate’s decision was invalid as the “notification” did not specify that the Applicant did not satisfy the complementary protection criterion.
Ground Three is that the notification letter was not dispatched to an address identified in s.494B(4)(c) of the Act (or that the delegate made an error in dispatching it) so that by s.494C(7) the Applicant was taken to have received the notice when she actually received it.
The Law
Before considering the grounds of review it is convenient to refer to the applicable law. An application for review of an RRT-reviewable decision (see s.411 of the Act) must be given to the Tribunal within the prescribed period (see s.412(1)(b)). Under reg.4.31(2) of the Regulations the applicable period is 28 days “commencing on the day the applicant is notified of the decision”.
Under s.66(1) of the Act when the Minister grants or refuses to grant a visa he or she is to notify the Applicant of the decision in “the prescribed way”. Regulation 2.16 of the Regulations makes provision for the method of notifying a person of a decision to grant or refuse to grant a visa for the purposes of s.66(1) of the Act. Under reg.2.16(3) notification of a decision to refuse to grant a visa must be by one of the methods specified in s.494B of the Act. Section 494B is, relevantly, as follows:
(1) For the purposes of provisions of this Act or the regulations that:
(a) require or permit the Minister to give a document to a person (the recipient ); and
(b) state that the Minister must do so by one of the methods specified in this section;
the methods are as follows.
…
(2) One method consists of the Minister (including by way of an authorised officer) handing the document to the recipient.
…
(4) Another method consists of the Minister dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or
(ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; or
(iii) if the recipient is a minor--the last address for a carer of the minor that is known by the Minister.
If the Minister gives a document to a person by one of the methods specified in s.494B, the person “is taken” to have received that document at the time specified in s.494C of the Act. Relevantly, subss.494C(1), (2), (4) and (7) are as follows:
(1) This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A).
(2) If the Minister gives a document to a person by the method in subsection 494B(2) (which involves handing the document to the person), the person is taken to have received the document when it is handed to the person.
(4) If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document 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.
(7) If:
(a) the Minister purports to give a document to a person in accordance with a method specified in section 494B (including in a case covered by section 494A) but makes an error in doing so; and
(b) the person nonetheless receives the document or a copy of it;
then the person is taken to have received the document at the times mentioned in this section as if the Minister had given the document to the person without making an error in doing so, 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 time.
Where a document is sent to an address in Australia by a method specified in s.494B(4), s.494C(4)(a) deems it to have been received by the person to whom it was sent seven working days after the date of the document. This means that, subject to any operation of s.494C(7), if a delegate’s decision notification letter is sent in accordance with s.494B(4) the notification is taken to have occurred at the end of the specified period regardless of whether or when it was actually received by the intended recipient. The time for lodging a review application is calculated from the date of deemed notification.
A review application received by the Tribunal outside the prescribed time limit is not a valid application.
In addition, s.66(2) of the Act specifies that certain matters must be included in a decision notification as follows:
Notification of a decision to refuse an application for a visa must:
(a) if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa--specify that criterion; and
(b) if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa--specify that provision; and
(c) unless subsection (3) applies to the application--give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
(d) if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500--state:
(i) that the decision can be reviewed; and
(ii) the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made.
Ground One: The Applicant’s “name” issue
The First Ground in the Further Amended Application is as follows:
The Tribunal made a jurisdictional error by holding that it did not have jurisdiction for the reason that the application was made out of time. The Tribunal wrongly held that section 494C of the Migration Act 1958 (Act) had the operation that the applicants were deemed to have been notified of the delegate’s decision on 2 January 2013. By the correct operation of section 494C, the applicants are deemed to have been notified of the delegate’s decision on 15 March 2013, meaning that the application to the Tribunal was brought in time.
Particulars
(a) By letter dated 14 December 2013, a representative of the Minister purported to notify the applicants of the delegate’s decision by the method in subsection 494B(4) of the Act.
(b) In so doing, the Minister’s representative made an “error” within the meaning of section 494C(7). The name on the envelope to which the letter was dispatched was wrong. The letter was addressed to “Ms [family name] [given name].”. The correct name to which it ought to have been addressed was “[given name] [family name]”.
(c) By operation of section 494C(7), the applicants are taken to have been notified of the delegate’s decision at the time it was received.
(d) The delegate’s decision was actually received on 15 March 2013.
(e) The application for review was made to the Tribunal on 19 March 2013, which was within the time.
(f) In the premises, the Tribunal made an error of law. Further or alternatively it made an error in the determination of a jurisdictional fact.
Having regard to the provisions of s.91X of the Act the components of the Applicant’s name are referred to as “given name” and “family name”. In essence, the Applicant contended that the delegate made an “error” which enlivened s.494C(7) of the Act by adopting what was said to be the “incorrect” ordering of the components of her name on the envelope containing the notification letter, a copy of which was annexed to her affidavit affirmed on 19 December 2013. On this basis she claimed that as she did not actually receive the posted notification letter until 15 March 2013, that was the date she was taken to have received it under s.494C(7) and the date from which the time for making an application to the Tribunal should have been calculated.
The Applicant’s affidavit evidence was that she used the PO Box of her flatmate (described as the “owner” of the mailbox) as her postal address and that the owner checked the PO Box daily and would give her any mail (although the Applicant checked the PO Box regularly while the owner was in China from February to early March 2013). She attested that in response to a Post Office Advice of Postal Item awaiting Collection Card the owner collected an item from the Post Office and gave her an envelope containing the delegate’s letter dated 14 December 2012 and the decision record on 15 March 2013. Copies of the envelope and the notification letter were annexed to the Applicant’s affidavit.
The notification letter annexed to the Applicant’s affidavit bears the date 14 December 2012 and appears to accord in all respects with the notification letter in the Court Book except that the copy of the notification letter in the Court Book from the Departmental file bears a registered post sticker. The notification letter was addressed to Ms [family name] [given name]. The salutation on the letter referred to the Applicant as Ms [family name]. The Decision Record correctly recorded the family and given names of each of the Applicants and referred to the Chinese passport issued in the Applicant’s own name of “[family name] [given name]”.
The envelope annexed to the Applicant’s affidavit which contained the notification letter was addressed to:
Ms [family name] [given name]
PO Box ----
Homebush West NSW 2140
This envelope bears a Registered Post prepaid label number that accords with the number on the sticker affixed to the notification letter of 14 December 2012 in the Court Book.
The Applicant submitted that it was clear from the English translation of her statement accompanying her protection visa application, the text of a letter of 9 June 2012 to the delegate seeking additional time to provide information and the English translation of a supplementary submission dated 20 May 2012 in which her name was recorded as “[given name] [family name]” that this was the form of name used by her. It was also said to be relevant that the Department’s earlier correspondence acknowledging receipt of the visa application and inviting her to attend an interview referred to the Applicant as “[given name] [family name]”.
It was contended that the first time the Department referred to the Applicant in the Chinese form of [family name] followed by [given name], rather than the conventional English form of [given name(s)] followed by [family name] was in the notification letter and on the envelope in which the notification letter was posted to the Applicant. This was said to be contrary to both the Applicant’s and the Tribunal’s practice of using the English form of the Applicant’s name.
The Applicant referred to VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570; [2003] FCAFC 311 in support of the proposition that there was an error in the giving of notification of the delegate’s decision. In VEAN a notification letter was addressed to “Mr [appellant’s name] c/o Ms [BD]” and commenced “Dear Mr [appellant’s name]”. Ms BD was the appellant’s sister and also his authorised recipient. The address specified on the notification letter was her address. In concluding that the letter was not given to the authorised recipient as required under s.494D of the Act, the Full Court of the Federal Court had regard to the fact that the letter was not addressed to the authorised recipient, but rather to the appellant c/- the authorised recipient.
The Applicant placed reliance on the Federal Court’s observation (at [39]) that if a letter that had to be given to the appellant, but that was “addressed to another person (not the appellant) at care of the appellant’s last address for service” it could not be said to have been “given” to the appellant as intended under s.494B of the Act. It was contended that the notification letter in this case was not addressed to the Applicant and not given to her. It was also said to be relevant that, as pointed out in VEAN at [41], the “essential elements of compliance” with s.494B(1) and (4) are the “giving” of the document to the visa applicant (or the authorised recipient where s.494D(1) applied) and the “dispatch” of the document to one of the addresses specified in s.494B(4). Their Honours indicated that both “critical elements of the means of notification” have to be met (at [42]) and went on to hold (at [45]) that the word “give” (in s.494B(1) and s.494D(1) of the Act) “involves, in the case of correspondence, the document being addressed to the person to whom it is to be given”.
The Applicant submitted that Parliament had enacted legislation that had the effect of removing an aspect of the common law right to procedural fairness (the right to be notified of an adverse decision) from visa applicants in that if the requirements of s.494B(4) were met notification would be deemed to have occurred under s.494C(4)) and hence that it should be interpreted strictly (Kioa and Others v West and Another (1985) 159 CLR 550 at 584; [1985] HCA 81 and Commissioner of Taxation and Others v Citibank Limited (1989) 20 FCR 403 at 433; (1989) 85 ALR 588). It was pointed out that the provisions for deemed notification achieved administrative certainty notwithstanding possible injustice to an applicant who had not in fact received notification of a decision and hence lost the right to seek review (Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 77 at 86; [2000] FCA 377 at [32]).
The Applicant also submitted that insofar as the method of notification was in issue s.494B(4)(i) of the Act required that the Minister send the notification letter to the “last address” for service provided to the Minister. It was contended that the concept of an “address” encompassed the name of the recipient. Reference was made to the fact that one of the Macquarie Dictionary definitions of “address” was “a direction as to name and residence inscribed on a letter” and to online Australia Post guidelines that state that when addressing mail the address should be written in three lines, with the top line containing the recipient’s name. Counsel for the Applicant submitted that as visa applicants may share a post office box this rendered the accuracy of the applicant’s name a critical component of the address itself. The example of post restante addresses was also cited.
The Applicant submitted that s.494C(7) applied both to an error in giving notification and to an error in the method of notification and should be interpreted as broadly as possible in favour of the Applicant in the context of a legislative scheme that otherwise had the effect of removing from applicants the right to receive actual notification of an adverse decision (see VEAN at [40] and Singh at [22]).
While Counsel for the Applicant acknowledged that this alleged error was minor in nature, it was submitted that nonetheless it was an error which enlivened s.494C(7) and that as the Applicant’s unchallenged affidavit evidence was said to have shown that she actually received the notification letter on 15 March 2013 (that is, after the time mentioned in s.494C(4) of the Act), she was taken to have received it on that date (under s.494C(7)). The Applicant submitted that on this basis the review application lodged with the Tribunal on 19 March 2013 was made within the statutory time limit.
The First Respondent submitted that the “reversal” of the Applicant’s given names and surname did not constitute an “error” in the Minister’s execution of the prescribed method of giving the notification letter to the Applicant by sending it to her under s.494B(4) and did not trigger the operation of s.494C(7) of the Act. It was also submitted that the Minister, through the delegate, had sent the letter to the Applicant at the “last address for service provided to the Minister by the recipient for the purposes of receiving documents” (s.494B(4)(c)(i)).
It was pointed out that in some of the documents provided to the Department the Applicant had herself written her name in the Chinese order [family name] [given names], in particular in her Roman alphabet signature. The First Respondent submitted that this method of address clearly identified the Applicant and that the notification letter had been addressed to the Applicant and sent by registered post to the address the Applicant had identified.
It was also contended that the Court should not construe the word “error” in s.494C(7) in the broad way suggested by the Applicant, such as to encompass any error. The First Respondent submitted that s.494C(7) applied only where something had “gone awry” in the method of notification under s.494B, such as the use of the wrong street number or a mistake (such as a misspelling) in an address.
It was submitted that s.494C(7) was not directed at circumstances which involved a notification letter being addressed to the Applicant with her surname preceding her given names. Rather, consistent with its position in s.494C and its apparent purpose, s.494C(7) was said to be directed at errors in the method that the Minister had attempted to utilise in the giving of documents to a person. Addressing the Applicant in writing in a manner which accorded with the Chinese order of names was said not to be such an error.
Consideration
Under s.66(1) of the Act the Minister is obliged to notify an Applicant of a delegate’s decision to refuse to grant a protection visa in the prescribed way. Regulation 2.16(3) prescribes the methods specified in s.494B of the Act.
Section 494B(1) makes it clear that the methods specified therein are applicable for the purposes of provisions of the Act or Regulations that require the Minister “to give a document to a person (the recipient) and to do so by one of the methods specified in s.494B”. Moreover s.494C will only apply if the Minister “gives” or (in the case of s.494C(7) “purports to give”) a document to a person “by” (or for the purposes of s.494C(7) “in accordance with” one of the methods specified in s.494B.
While the notification provisions considered in VEAN did not include s.494C(7) and involved circumstances in which an authorised recipient had been appointed, the Federal Court made the point that the essential elements of compliance with ss.494B(1) and (4) include the “giving” of the document in question to an applicant as well as the “dispatch” of the document to one of the addresses for an applicant specified in s.494B(4) (VEAN at [41]). If these requirements were not met in relation to a notification of a delegate’s decision then such notification would not attract the operation of s.494C(4). However if a notification letter was in fact received by an applicant (as here), it would be necessary to determine whether the deeming provision in s.494C(7) was enlivened.
In this case the Applicant contended that while the Minister, through his delegate, had purported to “give” the notification letter to her he made an error that enlivened s.494C(7) by reversing the order of her names. It was said that as the Applicant had established that she received the letter at a later time than that mentioned in s.494C(4), in accordance with s.494C(7) of the Act she was taken to have received it at that later time.
However, even if s.494C(7) is applicable to an error in giving a document to a person as well as to an error in the method of dispatch specified in s.494B(4), I am not persuaded that recording this Applicant’s name (in the Roman alphabet) in the order [family name] followed by [given name] was an “error” that enlivened s.494C(7) of the Act.
The Applicant was the primary applicant for the protection visa. She had to be notified of the delegate’s decision under s.66(1) of the Act. Her complete name was recorded both in Chinese characters and in the Roman alphabet under the headings “surname” and “given names” in the copy of her passport provided. In her protection visa application she provided details of her family name and given name. She provided her residential address and current postal address (being the PO Box to which the notification letter was sent).
The “name” of the Applicant appearing on the envelope and notification letter included all the components of the Applicant’s name. There is no suggestion that any part of her name was misspelt or omitted. Rather, it was recorded in what was conceded to be the “Chinese” order of family name first, followed by given name(s) and clearly identified her.
Moreover it has not been established that this ordering was contrary to the Applicant’s practice in relation to the recording of her name in her protection visa application such as to support the proposition that this method of address involved an error. The Applicant stated that she did not receive assistance in completing the protection visa application form. Relevantly, she signed both Parts B and C of the form (including the declaration about the correctness of the information provided) using letters of the Roman alphabet (not Chinese characters) in the order [family name] followed by [given name] that was used on the notification letter. It is the case that in typed English language translations of a written statement accompanying the application and a supplementary submission the translator recorded the Applicant’s name as [given name] [family name], but this is not, in all the circumstances, conclusive. Indeed, while a typed English language letter from the Applicant to the Department dated 9 June 2012 described the Applicant as [given names] [family name], the Applicant again signed that letter (using letters of the Roman alphabet) in the form [family name] followed by [given name].
Nor does the fact that the departmental letters acknowledging receipt of the application and inviting the Applicant to a hearing were addressed to her as “[given names] [family name]” mean that the reference to the Applicant in the notification letter and the envelope that contained such documents as [family name] [given name] was an “error” such that notification was not given to her or such that s.494C(7) was enlivened.
The Migration Act does not stipulate the form in which the name of an applicant or a recipient of a document is to be expressed. In the protection visa application, in the three places where a signature was required, the Applicant signed with her surname preceding her given name.
This was not a case in which the envelope containing the notification letter did not contain the Applicant’s name or in which part of the name was omitted or misspelt. Whether or not the concept of “address” in s.494B(4) of the Act extends to include the name of the intended recipient, common sense would suggest that an addressee must be identified by name on an envelope such as that containing a notification letter. In this case the Applicant was identified by the name in her passport that she had used to apply for the visa, in the form she used in signing her visa application and her letter to the delegate of 9 June 2012. In circumstances where the notification letter (and envelope) was addressed to the Applicant by one of the forms of name she had used in connection with her visa application the Minister (through the delegate) sufficiently addressed the envelope, both for the purposes of s.66(1) and s.494B(4) of the Act, to ensure that the notification letter would come to the attention of the Applicant for the visa being refused. There is no suggestion that the order in which the Applicant’s name appeared on the envelope was such as to give rise to any implication that it was addressed to some person other than the Applicant. The order in which her name appeared was not inconsistent with the purpose of s.66(1) or s.494B(4). The Applicant did receive the notification letter contained in the envelope addressed in this manner. While this was not until 15 March 2013, there is nothing to suggest that the order of the Applicant’s names on the envelope contributed to this timing. This is not a case in which a letter addressed to a post restante address (an analogy suggested by Counsel for the Applicant) might “go astray” if addressed to Bloggs Joe rather than to Joe Bloggs. It was addressed to the Applicant by her correct name in a form she had provided to the Department c/- a PO Box. There was no “error” for the purposes of s.494B(4) or s.494C(7) in sending the notification letter to the Applicant using her name in that form. It cannot be said that the Minister merely “purported” to give the notification letter to the Applicant, let alone that he purported to do so by a method specified in s.494B of the Act.
Hence it is not necessary to determine whether s.494C(7) is concerned with errors in giving a document to an applicant as well as errors in the method of dispatch of a document. Nor is it necessary to determine whether the name of the Applicant or other “recipient” is part of the “address” within s.494B(4).
Even if s.494C(7) has such a broad application and if the concept of “address” includes the name of the recipient, I am not persuaded that addressing the notification letter and envelope to the Applicant using the order of names used by her in signing her protection visa application (with the complete and correctly spelt names) was such as to constitute an “error” within s.494C(7) of the Act.
Hence, in the particular circumstances of this case the order of the Applicant’s name used on the notification envelope was not such that the Department made an “error” in giving the notification to the Applicant or in purporting to give the notification letter to the Applicant by a method specified in s.494B(4) of the Act. Rather, I am satisfied that the requirements of s.494B(4) were met such that the deeming provision in s.494C(4) applied.
Insofar as the Applicant referred to Singh in support of the proposition that s.494C should be construed strictly because it was expressed to displace actual notification with deemed notification, Singh concerned the different notification regime which preceded the introduction of ss.494B and 494C in 2001. It is of limited direct assistance, although it does highlight the tension between the interests of administrative certainty addressed in such provisions and an effective right to review of administrative action (see Sainju v Minister for Immigration and Citizenship and Another (2010) 185 FCR 86; [2010] FCA 461 at [58] – [59] per Jacobson J).
Insofar as such tension might be taken to support a broad view of s.494C(7) in favour of an Applicant, in this case no occasion for the operation of s.494C(7) arose. The Minister, though the delegate, gave the notification letter to the Applicant. As discussed in more detail below in relation to Ground Three, he did so in accordance with a method specified in s.494B(4) of the Act. Hence the Applicant was taken to have received the posted notification letter at the time provided for in s.494C(4) of the Act. The Tribunal correctly proceeded on the basis that the time for lodging the review application ran from that time. It had no discretion in that respect.
Ground One in the Further Amended Application is not made out.
Ground two: s.66(2) issue
Ground two in the Further Amended Application is as follows:
The Tribunal wrongly held that it did not have jurisdiction because more than 28 days had elapsed since the applicant was notified of the decision. In fact, the purported notification was invalid in that it did not comply with section 66(2) of the Act.
Particulars
(a) The grant of the visa was refused because the applicant did not satisfy a criterion, namely that the delegate was not satisfied that Australia has protection obligations to the applicant under the Complementary Protection provisions.
(b) Contrary to section 66(2)(b) (sic) of the Act, the purported notification did not specify that criterion.
The Applicant submitted that the delegate’s letter dated 14 December 2012 did not comply with s.66(2)(b) of the Act because it did not specify that she did not satisfy the complementary protection criterion. In submissions it was clarified that the provision in issue was s.66(2)(a) of the Act.
The Applicant referred to Chan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 308; [2003] FCA 1292 at [45] – [46] per Gray J in support of the proposition that “each element of the requirements of s 66(2)” was an “integral part of the scheme of notification” and submitted that if one of the requirements of s.66(2) was not met then there was a “strong case” that the duty of notification was not been fulfilled. It was submitted that as the Applicant had not been notified of the delegate’s decision in accordance with s.66 of the Act the application to the Tribunal was within time.
The First Respondent submitted that the Applicant’s contention was contrary to the view taken by Allsop J in Zhan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 469; [2003] FCA 327 at [45] that the letter and decision record should not be considered “separately or differentially”. It was also pointed out that in Singh v Minister for Immigration & Anor [2010] FMCA 1000 at [21] – [22] Cameron FM had considered that a departmental letter of notification had expressly adopted what was said in the attached decision record and that in Benissa v Minister for Immigration & Anor [2010] FMCA 657 at [57] – [58] Riley FM had found that for the purposes of considering compliance with s.66(2)(a) of the Act the notification letter and the decision record were to be read as one. This was said to be the correct approach.
In reply the Applicant acknowledged that the delegate’s letter referred to the decision record which in turn referred to the complementary protection criterion, but submitted that, consistent with the decision of Gray J in Chan, this did not suffice. It was contended that insofar as Zhan was to the contrary it was an earlier decision and that in any event the remarks of Allsop J were obiter and did not relate to s.66(2)(a) of the Act. It was also submitted that the decision in Singh was not in point as it did not relate to s.66(2)(a). While it was accepted that Benissa was in point, it was submitted that it was plainly wrong and should not be followed.
Consideration
Section 66(2) of the Act is set out above. It contains a number of requirements. Relevantly, if a visa is refused because the applicant does not satisfy a criterion, the “notification” of the decision must specify that criterion (s.66(2)(a)) and must give written reasons why the criterion was not satisfied (s.66(2)(c).
In this case the delegate’s letter of 14 December 2012 relevantly advised the Applicant as follows:
I wish to advise you that the application for this visa has been refused. After careful consideration of all the information you have provided, I was not satisfied that you met the relevant criteria for the grant of this visa as set out in Australian migration law.
To be granted a Protection visa, you must be a non-citizen in Australia to whom Australia has protection obligations under the United Nations Refugees Convention of 1951 as amended by the Refugees Protocol of 1967. You have been refused a Protection visa because you do not satisfy this criterion.
The attached decision record provides more detailed information about this decision and the application it applies to.
The letter (which had commenced by explaining that it related to the Applicant’s protection visa application that included her daughter as a member of her family unit) also addressed the Applicant’s review rights and other formalities. No issue is taken with these aspects of the notification.
Importantly, the decision record was referred to and listed as one of the attachments to the letter. It is not in dispute that a copy of the decision record (also dated 14 December 2012) was attached to the letter received by the Applicant. The decision record dealt in detail with the Applicant’s Refugees Convention claim as well as her claim under the complementary protection criterion and her daughter’s claim as a member of her family unit.
What is in issue is whether the delegate’s failure to refer in the letter itself to the fact that the Applicant did not meet the complementary protection criterion (as well as the Refugees Convention criterion) meant that the notification did not comply with s.66(2) of the Act.
As pointed out by Counsel for the First Respondent, there is no prescribed form for the “notification” of a decision to refuse to grant a visa. In this case the letter of 14 December 2012 enclosed the decision record of the same date. In Zhan Allsop J considered both the letter and the decision record constituted a “notification” for the purposes of s.66 of the Act, stating at [48]:
The two documents (the letter and decision record) should not, it seems to me, be dealt with separately or differentially by s 494C. They, together, amounted to the notification in a document or documents for the purposes of s 66.
Moreover Chan is not to the contrary. Gray J referred to Zhan in relation to the requirement of notification. His Honour noted that Allsop J had found that “the document purporting to be the notification was deficient in two respects” (at [46]) (including the failure to specify a criterion for the visa which Ms Zhan had not satisfied) and, relevantly, observed that Allsop J had (at [47]):
…accepted a submission that the omission prevented the letter and its enclosed decision record from being characterised as a ‘notification’, or as the fulfilment of the requirement to “notify” for the purposes of ss.66 and 347(1)(b)(i) of the Migration Act. (Emphasis added).
Nothing Gray J said about the particular deficiency in the notification in issue in Chan (in the statement of the time within which an application for review had to be made) is contrary to the view that the delegate’s letter and the attached decision record are to be considered together for the purposes of the requirement of notification within s.66 of the Act. Moreover the same approach (consistent with Zhan) was taken in Benissa. Riley FM stated at [57] – [58]:
The applicant said in oral submissions that even if the visa decision record had been attached to the notification letter dated 19 May 2009, that would not suffice. The applicant argued that it was not sufficient to attach the decision record setting out the relevant matters. All those matters had to be in the notification itself.
I reject that argument. It is clear from the terms of s.66 that the relevant matters do not have to be all stated in the letter that accompanies the decision record. Those two documents, the covering letter and the decision record, are to be read as one.
In this case the delegate’s letter of 14 December 2012 clearly referred to and hence was to be read with the enclosed decision record of the same date in which written reasons were given for why the criteria in issue were not satisfied. Even if the decision of Allsop J in Zhan (at first instance) was not binding (strictly speaking) or if his Honour’s remark that the letter and decision record together amounted to the notification for the purposes of s.66 was to be seen as obiter, Chan does not take a contrary approach and the view of Allsop J should be followed.
I agree with the view expressed in Zhan, and in Benissa, that for the purposes of s.66(2)(a) of the Act the letter and the decision record are to be read as one. The two documents should be regarded as together amounting to notification for the purposes of s.66 of the Act. I am not satisfied that the approach taken in Benissa was clearly wrong.
In the letter the delegate stated that he was not satisfied that the Applicant “met the relevant criteria for the grant of [a protection] visa as set out in Australian migration law”. The delegate also referred to the attached decision record. The decision record (as part of the notification document) specified that the Applicant failed to meet either the Refugees Convention criterion or the complementary protection criterion. The Applicant’s failure to meet one of these alternative criteria was the reason the visa was refused. The notification met s.66(2)(b) of the Act. This ground is not made out.
Ground Three: Whether the notification letter was dispatched to an address in s.494B(4)(c)
Ground Three in the Further Amended Application is as follows:
The Tribunal erred in finding that section 494C of the Act operated to deem the applicant to have been notified of the delegate’s decision on 2 January 2013. The Tribunal ought to have held that section 494C of the Act did not apply because the letter by which the applicant was notified of the decision was not dispatched to an address identified by section 494B(4)(c). Alternatively, the Tribunal ought to have found that the Minister made an error in dispatching the letter to the applicant, and that the applicant did not receive the decision until 11 March 2013, and so by section 494C(7) the applicant is taken to have received the notice when she actually received it.
Particulars
The affidavit of Clyde Hungerford sworn on 21 February 2014 establishes that the letter was dispatched to a post office box at the address “Homebush”. The address given to the Department by the applicant was a post office box at “Homebush West”. There are at least two post offices in the suburb of Homebush with post boxes – “Homebush West” and “Homebush South”.
Sections 494B(4) and 494C(4) and (7) are set out above. The Tribunal held that the Applicant was notified of the delegate’s decision by letter dated 14 December 2012 and dispatched by post. It concluded that the Applicant was notified of the delegate’s decision in accordance with the statutory requirements and that in accordance with s.494C of the Act the Applicant was taken to have received the notification letter dated 14 December 2012 seven working days after its date (that is, on 2 January 2013).
The Applicant was given leave to raise this ground in the Further Amended Application. At the time of the first hearing the First Respondent had filed an affidavit sworn by Arunima Lal, a solicitor, annexing what was said to be the Department’s registered post ledger for 14 December 2012 which was said to indicate that a letter was sent to the applicant at “Homebush NSW 2140” on 14 December 2012 bearing a barcode including the numbers on the registered post sticker on the notification letter. This appeared to raise an issue as to whether the notification letter had been sent to the correct suburb of Homebush West.
Subsequently the Minister filed and relied on an affidavit of Clyde Hungerford sworn on 21 February 2014. The Applicant maintained the contention that the Court could not be satisfied that the notification letter was dispatched to the correct suburb of “Homebush West”.
Mr Hungerford is a Manager employed by Converga, the company that distributes mail for the Department. He described the record-keeping practices and systems implemented by Converga in relation to Departmental outgoing registered and express post mail. In his affidavit of 21 February 2014 he explained that each day a Converga employee in the mailroom would record the barcode numbers of all registered and express post outgoing correspondence onto a spreadsheet, “including the date and details of the suburb or address and to whom the mail item is going”.
Annexed to Mr Hungerford’s affidavit was a copy of the Contract Mailing Statement for the Department in Sydney for 14 December 2012 to which was attached the spreadsheet for that date. Relevantly, the Applicant’s name appeared in that spreadsheet on a line which recorded the date of 14/12/2012, the number “997001491836739019” and “Homebush NSW 2140”.
However also in evidence before the Court is the Applicant’s affidavit of 19 December 2013 to which she annexed a copy of the envelope containing the notification letter received by her on 15 March 2013. That envelope recorded her address as “PO Box [----] Homebush West NSW 2140” (consistent with the postal address she provided to the Department).
In the face of what was said to be conflicting evidence as to the address to which the notification letter was dispatched, the Applicant submitted that s.494B(4) was not satisfied because the Court should not be satisfied that the notification letter had been dispatched to the last address the Applicant had provided to the Minister. On this basis it was contended that s.494C(4) did not apply.
The Applicant submitted that while the affidavit of Mr Hungerford was relied on by the First Respondent to establish dispatch of the notification letter to the last address for service the Applicant had provided for the purposes of receiving documents in accordance with s.494B(4) of the Act, an inference could be drawn that on 14 December 2012 a copy of the notification letter addressed to “Homebush” was dispatched, whereas the suburb the Applicant provided as part of her address was “Homebush West”. It was also submitted that having regard to the affidavit of Kerry Murphy affirmed on 19 March 2014, the Court could be satisfied that there were Post Office Boxes available at locations at “Homebush West” and at “Homebush South”, but that there were no Post Office Boxes at “Homebush”.
Counsel for the Applicant acknowledged that the copy of the envelope containing the notification letter actually received by the Applicant on 15 March 2013 was addressed to Homebush West (the suburb specified by the Applicant as part of her postal address), and that this was conflicting evidence in relation to the address to which the Department had sent the notification letter, but contended nonetheless that on the balance of probabilities the evidence before the Court demonstrated that the notification letter dispatched on 14 December 2012 had in fact been sent to an address in Homebush rather than Homebush West.
In the alternative, it was submitted that an error had been made that engaged s.494C(7) and that the Applicant was not taken to have received the notification letter until she actually received it in March 2013. In submissions in relation to this ground it was acknowledged that the Applicant actually received a copy of the notification letter when it was handed to her on 11 March 2013 by a Departmental officer.
In addition, in oral submissions counsel for the Applicant raised, for the first time, an issue as to whether the Court could be satisfied on the evidence before it that the notification letter received by the Applicant by post on 15 March 2013 was dispatched within three working days of its date of 14 December 2012. It was submitted that the Court could not be so satisfied because it should be inferred that Converga’s record of a letter dispatched on 14 December 2012 related to a letter other than the letter actually received by the Applicant on 15 March 2013.
This argument was put on the basis that in the spreadsheet for 14 December 2012 attached to the Contract Mailing Statement annexed to the affidavit of Mr Hungerford the numbers “997001” appeared before the number “491836739019”. While the Applicant conceded that “491836739019” was the number that appeared on the registered post sticker affixed to the copy of the Department’s notification letter dated 14 December 2012 in the Court Book and was also the number above the barcode on the envelope received by the Applicant on 15 March 2013, it was contended that the additional prefix of “997001” was proof that the letter dispatched on 14 December 2012 as recorded in the Converga records was a different letter to the one that was received by the Applicant on 15 March 2013.
It was submitted that the Court should take judicial notice of the fact that registered post would take less than a month to arrive and find, based on the date of actual receipt of the letter and the fact that the Applicant had attested that the owner of the post office box checked the mailbox daily, that the letter she received on 15 March 2013 was a different letter to that recorded as dispatched by Converga on 14 December 2012 and that such different letter was not dispatched within three working days of 14 December 2012. The Applicant submitted that the evidence suggested that the letter received by the Applicant arrived at the Homebush West Post Office Box address no earlier than early March 2013, based on the Applicant’s evidence as to the practice of the owner checking the Post Office Box regularly and the fact that while the owner was in China for approximately one month from February 2013 until 4 March 2013 the Applicant checked the mailbox approximately two or three times a week. It was submitted that it could be concluded that the letter that the Applicant actually received was sent in January or February 2013 and that this meant that it had been dispatched more than three working days after the date it bore.
The Applicant contended that if this characterisation of events was accepted then it followed that the Minister had not complied with s.494B(4) of the Act and that this had resulted in an error under s.494C(7) such that the time the Applicant was taken to have received the notification was 11 March 2013. It was submitted that on this basis the review application was received within the applicable time limit and the Tribunal’s decision that it lacked jurisdiction should be quashed and a writ of mandamus issued.
The First Respondent drew attention to the Homebush West address on the envelope containing the notification letter annexed to the Applicant’s affidavit and the consistency between the registered post numbers on that envelope, the Department’s copy of the notification letter and the Converga spreadsheet. It was submitted that the notification letter was sent to the Applicant on 14 December 2012 at the postal address she provided on her protection visa application form and that on the evidence the Court should be satisfied that the requirements of s.494B(4) of the Act were met so that s.494C(4) deemed the Applicant to have received the notification letter seven working days after 14 December 2012.
In relation to the Applicant’s contention that the Court should infer that the letter received on 15 March 2013 was not the letter dispatched on 14 December 2012, the First Respondent placed reliance on the envelope annexed to the Applicant’s affidavit and the consistency in the registered post numbers on the envelope, the Departmental copy of the notification letter and (notwithstanding the addition of a prefix common to most of the listings) on the Converga spreadsheet. It was submitted that the Court could be satisfied that the letter dispatched on 14 December 2012 was the letter received on 15 March 2013. On the basis that the requirements of s.494B(4) were satisfied it was submitted that notification was taken to have occurred at the time provided for in s.494C(4) regardless of when it was actually received (see SZNZL v Minister for Immigration and Citizenship and Another (2010) 186 FCR 271; [2010] FCA 621 at [36] and Cheng v Minister for Immigration and Citizenship and Another (2011) 198 FCR 559; [2011] FCA 1290 at [19]).
Consideration
This ground is not made out. First, the photocopy of the envelope (bearing the same registered post number as the copy notification letter in the Departmental file) which the Applicant annexed to her affidavit and attested she received on 15 March 2013 was addressed to “Homebush West”. The Applicant acknowledged that this envelope contained a copy of a notification letter dated 14 December 2012. I am satisfied that the notification letter was sent to the Applicant at the postal address she provided on her visa application form, being a Post Office Box in “Homebush West” in accordance with a method provided for in s494B(4) of the Act. The reference on the Converga spreadsheet to the suburb of “Homebush” is not such as to satisfy me that an inference should be drawn that on 14 December 2012 a copy of the notification letter was addressed and dispatched to “Homebush” rather than to Homebush West in circumstances where a copy of the envelope containing the notification letter is in evidence.
That envelope bears a barcode which, while partially indistinct, shows “2012 22:13” and a registered post number 491836739019. Mr Hungerford’s evidence was that a letter to the Applicant was dispatched on 14 December 2012. While there is no evidence to explain the fact that nearly all the numbers recorded on the Converga spreadsheet started with the digits 997001, in almost all cases such digits were followed by a twelve-digit number. The number recorded next to the Applicant’s name was “997001491836739019”. The last twelve digits of this number match the registered post number on the notification letter and, critically, on the envelope containing the notification letter received by the Applicant on 15 March 2013.
I am not persuaded by the Applicant’s contention that the Court should infer that the notification letter received by the Applicant in March 2013 was not dispatched on 14 December 2012 but was a separate, different letter, posted at a later date. On the spreadsheet for 14 December 2012 attached to the Contract Mailing Statement annexed to Mr Hungerford’s affidavit, the Applicant’s name appears in conjunction with a number which includes the Registered Post Item number “491836739019” which corresponds with the number on the envelope addressed to the Applicant and the registered post receipt attached to the Department’s copy of the notification letter dated 14 December 2012. The “997001” prefix pointed to by the Applicant as proof of the existence and dispatch of a different letter to that actually received by her on 15 March 2013 appears in the spreadsheet before the majority of barcode numbers recorded by Converga in relation to all the express and registered post mail sent on 14 December 2012.
The Applicant received a letter on 15 March 2013 which bore a registered post number that accorded with the last 12 digits used in relation to the letter described in the Converga records as having been sent to her on 14 December 2012. This number also accorded with the registered post number on the sticker on the copy of the notification letter dated 14 December 2012 in the Court Book. On the balance of probabilities the evidence tends towards the existence of only one notification letter, being the notification letter that was sent to the Applicant by registered post on 14 December 2012. The suggestion that two letters were sent to the Applicant by registered post, and that the registered post numbers for the mail sent on these two separate occasions were identical save for a prefix that was common to the majority of mail recorded as sent by Converga on 14 December 2012 is speculative and unpersuasive.
I am not satisfied that more than one notification letter was sent to the Applicant. I am however satisfied on all the evidence before the Court, in particular Mr Hungerford’s affidavit and the copy of the envelope received by the Applicant on 15 March 2013, that the notification letter dated 14 December 2012 was dispatched to the Applicant on 14 December 2012, and hence within three days of its date in accordance with s.494B(4) of the Act. Accordingly s.494C(4) of the Act applied such that the Applicant was deemed to have received the notification letter seven working days after 14 December 2012. That is so notwithstanding that she did not in fact receive this letter until 15 March 2013.
The Applicant failed to lodge her application for review of the delegate’s decision with the Tribunal within the prescribed period of 28 days commencing on the day she was deemed to have been notified of the decision (see s.412(1)(b) and reg.4.31). The Tribunal correctly decided that it did not have jurisdiction to consider her application for review.
It is the case that this leaves unexplained the fact that the Applicant did not receive the notification letter dispatched on 14 December 2012 until 15 March 2013. In this respect I accept her (unchallenged) affidavit evidence about her actions in relation to collection of the notification letter on 15 March 2013. However this does not mean that the notification provisions in s.494B(4) and s.494C(4) did not apply. These provisions have the effect that the Applicant was deemed to have received notification of the delegate’s decision on 2 January 2013, despite the fact that she did not actually receive the posted letter until 15 March 2013. Harsh though this may be, where the deeming provision of s.494C(4) applies, the time limit for seeking Tribunal review runs from the date of deemed receipt. It cannot be extended by the Tribunal (or by the Court). As there was no “error” such as to enliven s.494C(7) the statutory provisions operated to deem that the Applicant received notification of the delegate’s decision, notwithstanding that she did not receive actual notification until a later time.
The Tribunal validly concluded that it had no jurisdiction. As no jurisdictional error has been established on any of the bases contended for by the Applicant the application must be dismissed.
I certify that the preceding one-hundred (100) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 11 February 2015
0
18
3