SZTQW v Minister for Immigration
[2014] FCCA 2658
•31 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTQW v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2658 |
| Catchwords: MIGRATION – Application to review decision of Refugee Review Tribunal that it did not have jurisdiction – Applicant notified Department of postal address and incorrect postcode – delegate’s notification letter sent to correct postcode – whether Applicant taken to have been notified of the delegate’s decision– no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.66, 411, 412, 477, 494 |
| SZKGF v Minister for Immigration & Citizenship [2008] FCAFC 84 SZLBR v Minister for Immigration & Anor (2008) 216 FLR 141; [2008] FMCA 154 SZLBR v Minister for Immigration & Citizenship [2008] FCAFC 85 |
| Applicant: | SZTQW |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3098 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing date: | 31 October 2014 |
| Delivered at: | Sydney |
| Delivered on: | 31 October 2014 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The time for making the application be extended up to and including 12 December 2013.
The application of 12 December 2013 is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3098 of 2013
| SZTQW |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal dated 6 November 2013. The Tribunal found that it did not have jurisdiction to review a decision of a delegate of the First Respondent refusing the Applicant’s application for a protection visa.
The application to this Court for review of the Tribunal decision was made one day outside the 35-day period provided for in s.477(1) of the Migration Act 1958 (Cth) (the Act). Under s.477(2) of the Act the Court may extend that period if satisfied it is necessary in the interests of the administration of justice, provided an application for such an order has been made in writing specifying why the Applicant considers it necessary in the interests of the administration of justice to do so and the Court is so satisfied.
While the Applicant did not state why an extension of time was necessary under the appropriate heading in his application, the solicitor for the Minister took no issue with proceeding on the basis that he had provided what he saw as a reason in writing for an extension of time (at least to some extent), insofar one of the “grounds” of the application claimed that the Tribunal “erred law in sending letters to [his] home address and not to [his] nominated mailing address. As a result, [he] was not able to collect these letters and [he] was not in a position to make a response to the Tribunal’s letters”.
The Applicant did not file any affidavit evidence explaining the delay. As I did not conduct the directions hearing (at which time that might have been addressed), I gave him the opportunity to give oral evidence in relation to his explanation for the one day delay in bringing proceedings in this Court. He was cross-examined on his evidence.
The Applicant claimed, without any supporting documentary evidence, that there had been a delay because he had a medical condition. He admitted in cross-examination that he had received the Tribunal decision and letter and explained that he had showed it to a friend who advised him that he had to appeal by a particular date.
I am not entirely satisfied with the adequacy of the Applicant’s explanation for the lateness of his application to this Court. However, having regard to all of the circumstances of this case, in particular the length of the delay and the issues raised in the substantive application (which I discuss further below), I consider that it is necessary in the interests of the administration of justice to extend the time for making the application to this Court by one day and to deal with the merits of the Applicant’s substantive application.
I take that approach notwithstanding that, for the reasons given below, I am not satisfied that there has been a jurisdictional error. I have borne in mind all the circumstances, including whether the grounds raised are arguable and the availability of an appeal against a decision of this Court in relation to a substantive application (as distinct from a decision in relation to an application to extend time).
In relation to the substantive application, it is relevant to refer to the approach taken by the Tribunal. The Tribunal found that the application for review related to a decision of the delegate of the Minister dated 16 July 2013 to refuse to grant a protection visa and that the review application was lodged on 23 August 2013. No issue is taken by the Applicant with the Tribunal’s finding in relation to the date of lodgement. It is consistent with both the facsimile notations and the “date received” stamp on the copy of the review application dated 22 August 2013.
The Tribunal pointed out that, pursuant to s.412(1)(b) of the Act and reg.4.31 of the Migration Regulations 1994 (Cth) (the Regulations), an application for review of a delegate’s decision had to be made within 28 days after the Applicant was notified of the decision in accordance with the statutory requirements.
The Tribunal found that material before it indicated that the Applicant was notified of the delegate’s decision by letter dated 16 July 2013 and dispatched by post. I note, relevant to the grounds relied on, that the delegate’s notification letter bears a registered post sticker and is dated 16 July 2013. It was addressed to the Applicant at PO Box [specified], Dulwich Hill, NSW, 2203. The Tribunal was satisfied that the Applicant was notified of the decision in accordance with statutory requirements.
After a detailed discussion of correspondence sent to the Applicant after the application was lodged with it, the Tribunal returned to the issue of its jurisdiction. It found that in accordance with s.494C of the Act the Applicant was taken to have been notified of the delegate’s decision on 25 July 2013 and that therefore the prescribed period for review ended on 22 August 2013. As the application for review was not received by the Tribunal until 23 August 2013, it was said to follow that it was not in accordance with the relevant legislation and that the Tribunal had no jurisdiction.
In its consideration of events after the review application was lodged, the Tribunal addressed what might be referred to as some difficulties in communicating with the Applicant. This may be seen as relevant to any procedural fairness obligations on the Tribunal.
Relevantly, the Applicant advised the Tribunal that his postal address was a different post office box in Dulwich Hill NSW, 2203. The Tribunal recorded that letters sent to this PO Box were returned to sender with a notation that there was “no such number” and that it was “not a PO Box in Dulwich Hill”. The Tribunal recorded that copies of letters to the Applicant were also sent to his residential address, including a letter of 10 September 2013 which alerted him to the issue that his application appeared to have been lodged out of time, explained the dates and circumstances and gave him an opportunity to comment by 30 October 2013.
While the copy of the letter of 10 September 2013 sent to the Applicant’s postal address was returned to sender, the letter sent to his home address was apparently received by him, as on 4 October 2013 he called the Tribunal and referred to the correspondence which required a reply by 3 October 2013. He asked for an extension of time. He was told to make a request in writing. He did so. In that correspondence he again referred to the new post office box number in Dulwich Hill, 2203. He was granted the two-week extension of time that he sought by letter of 14 October 2014 sent to his postal address (which he had confirmed to the Tribunal was correct) and to his home address. Both letters were returned to sender. The Tribunal did not receive any further communication from the Applicant.
The Tribunal decision was sent to the Applicant’s post office address and to the home address both by registered mail and normal post. As indicated, he acknowledged that he received the decision.
In his application for review, the Applicant raised three grounds. He did not file written submissions before the hearing. However he filed written submissions in Court and stated that he wished to rely on those submissions.
Before turning to the grounds in the application, I note that insofar as in submissions and in his oral evidence the Applicant claimed that he was unable to gain access to Medicare in the absence of an ID document, such a concern, while understandable, does not demonstrate jurisdictional error on the part of the Tribunal. As I endeavoured to explain to the Applicant this is not a matter that the Court can address in these proceedings.
The first and second grounds in the application can conveniently be considered together. The first ground is that the Tribunal “erred in law in deciding that it did not have jurisdiction”. The second ground is that the Tribunal erred “in deciding that the notification of the Department was correctly made”. These grounds require consideration of the adequacy of the notification of the delegate’s decision.
When he lodged his protection visa application on 11 March 2013 the Applicant appointed a migration agent as his authorised recipient in relation to all written communications. At that time he provided only a residential address (which has not changed in the time that the matter has been before the delegate and the Tribunal). A Form 956 was also completed and lodged on 11 March 2013 in relation to the appointment of the migration agent.
On 3 April 2013 (at a time at which the Applicant was still represented by his migration agent as authorised recipient) a change of contact details for the Applicant (Form 929) was lodged. It differed from the earlier notification in that it provided an address for correspondence for the Applicant which was described as “PO Box [specified], Dulwich Hill, NSW, 2203”.
However by letter dated 28 May 2013 received by the Department on 29 May 2013 the Applicant requested a change to the interview date that has been set, asked that the Department cease communicating with his representative and claimed he no longer nominated the agent as his authorised representative. The Applicant also raised an issue about his lack of a Medicare card because he did not have photo ID. He concluded:
Please forward all communications to PO (sic) [specified] Dulwich Hill NSW 2206 (sic).
A withdrawal of authorised recipient form was filed. In accompanying documents filed by the Applicant on 29 May 2013 (including a request for access to documents and a change of address form), the Applicant’s postal address and address for correspondence was said to be “PO Box [specified] Dulwich Hill NSW 2206 (sic)”.
On 16 July 2013 the delegate wrote to the Applicant notifying him of the decision to refuse his application for a protection visa. That letter was addressed to the Applicant at PO Box [specified], Dulwich Hill, NSW, 2203 (emphasis added). The copy letter in the Court Book bears a registered post sticker. As attested to in the affidavit of Clyde Hungerford (a manager employed by the Department’s postal service provider) affirmed on 22 October 2014, I am satisfied that a letter in an envelope bearing the same registered post number as that shown on the letter in the Court Book was posted on 16 July 2013 to Dulwich Hill, NSW, 2203, addressed to the Applicant.
As indicated, the Applicant lodged an application with the Tribunal for review of the delegate’s decision on 23 August 2013. This was one day late. However it is clear that, in one way or another, the Applicant must have received notification of the delegate’s decision, as he sought review. He did not put evidence before the Court in relation to the circumstances in which he received notification of the delegate’s decision.
The Applicant took issue with the fact that while he nominated PO Box [specified], Dulwich Hill, NSW with 2206 specified as the postcode in his postal address in the form provided to the Department on 29 May 2013, the Department used the postcode 2203 (which was not a postcode that he had nominated).
He submitted that dispatching documents to an “address” in Australia (s.494C(4)(a) of the Act) meant the address that the Applicant nominated in order to receive any letter from the Department. It was contended that since the Department did not send the notification letter to the exact address the Applicant had nominated, he could not be deemed to have received it seven working days after its date (see s.494C(4)(a)) because the start of this seven day period was dependent on the letter being dispatched to an Australian “address”. It was submitted that in these circumstances the time limit on applications to the Tribunal of 28 days after the notification of the delegate’s decision (see s.412(1)) had not commenced and therefore the Tribunal had jurisdiction.
This argument was maintained notwithstanding that the delegate’s letter was sent to the correct postcode for Dulwich Hill and there was no suggestion of any error in the specification of the PO Box number or the suburb. In submissions the Applicant acknowledged that there was evidence (in the affidavit of Mr Stephen John Alfred Spiers) in relation to the correctness of the postcode 2203 for Dulwich Hill. That affidavit indicates that on the basis of a search of the Australia Post website the correct postcode for Dulwich Hill is 2203. The Applicant did not dispute this, but nonetheless submitted that the Act did not restrict the Applicant to nominate any particular address and that whatever address he provided to the Department, it was bound to send correspondence to that particular address and not to one that the Department “made up itself”. This argument was put on the basis that otherwise the Department would be able to “make up any random address as it wishes” and send correspondence to such an address for a future visa applicant.
The First Respondent submitted that the delegate’s letter was sent to the Applicant’s Dulwich Hill PO Box address and that the use of the correct postcode for Dulwich Hill did not mean that the notification of the delegate’s decision was sent to the wrong address. Rather it was said to have been sent to the Applicant’s last known address for correspondence. It was submitted that the Tribunal correctly found that the Applicant was taken to have been notified of the delegate’s decision on 25 July 2013.
What is in issue is whether the Tribunal correctly decided that it did not have jurisdiction to review the delegate’s decision. That, in turn, raises the issue of whether the Applicant was properly notified of the delegate’s decision by the letter of 16 July 2013.
The Tribunal properly understood that it had a duty to determine whether it had jurisdiction to accept the application for review. Section 412(1)(b) of the Act provides that an application for review of an RRT-reviewable decision must be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after notification of the decision.
It is not in dispute that the delegate’s decision was an RRT-reviewable decision under s.411 of the Act. Regulation 2.16 sets out the prescribed ways in which notification of a decision in relation to a visa application must be given. Section 66 of the Act requires the Minister to notify the applicant of a decision to refuse to grant a visa in the prescribed way. Relevantly, reg.2.16(3) applies for the purposes of s.66 of the Act provides that the Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in s.494B of the Act.
Subsections (1) and (4) of s.494B are 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.
…
Giving by hand
(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 the method specified in s.494B(4) “the person” is taken to have received it seven working days (in the place of the address to which it was dispatched) after the date of the document (s.494C(4)).
Section 494C(7) of the Act provides that if the Minister purports to give a document to a person in accordance with a method specified in s.494B but makes an error in doing so and the person nonetheless receives the document or a copy of it, the person is taken to have received the document at the times mentioned in s.494C as if there had been no error, unless the person can show he or she received it at a later time, in which case the person is taken to have received it at that time.
In this case, the Applicant notified the Department that his address for correspondence included postcode 2206 for a post office box in Dulwich Hill. However the delegate sent the notification letter to the correct post office box number and suburb and used the correct postcode for Dulwich Hill, rather than the incorrect postcode of 2206 notified by the Applicant. The issue is whether the use of the different (but correct) postcode gave rise to an error of the nature contended for by the Applicant.
In submissions the Minister referred to decisions of the Full Court of the Federal Court in SZKGF v Minister for Immigration & Citizenship [2008] FCAFC 84 and SZLBR v Minister for Immigration & Citizenship [2008] FCAFC 85. SZKGF involved a situation in which a hearing invitation and s.424A letters were sent by the Tribunal to an applicant at the correct street number and the correct suburb but specified an incorrect postcode. It was, however, apparent that the letters clearly reached the applicant because he responded that he would attend the hearing and replied to the invitation to comment. The Court found there was no practical injustice despite the Tribunal’s difficulty in correctly addressing its communications to the applicant.
Relevantly, in SZKGF the Court referred with approval to the view that had been taken at first instance by Emmett FM in SZLBR v Minister for Immigration & Anor (2008) 216 FLR 141; [2008] FMCA 154 at [39] - [40]. Her Honour had expressed the view that the postcode was not an essential part of the identification of the physical location of one’s place of residence. In SZKGF the Full Court stated (at [11]) that there were “cogent reasons for concluding that the postcode was not part of the address and therefore the use of the incorrect postcode did not result in non-compliance” with the applicable provision of the Act in relation to the method of giving invitations to comment (s.424A(2)(a)).
Stone, Jacobson and Edmonds JJ went on to state that even if the postcode was properly to be regarded as part of the address, there were persuasive arguments that the use of an incorrect postcode would not result in jurisdictional error (at [12]). However the Court concluded that it did not need to decide that issue and that it would not do so in the absence of a contradictor. Their Honours stated that in the absence of practical injustice relief would be declined.
On appeal from the decision of Emmett FM (see SZLBR v Minister for Immigration & Citizenship [2008] FCAFC 85) the Full Court of the Federal Court referred to its reasons in SZKGF. In SZLBR the Tribunal had also used an incorrect postcode on three letters, but Australia Post had confirmed that the letters had been delivered to the correct Post Office and collected. The Court found that there was an absence of practical injustice in circumstances where the applicant had responded to one of the letters and the evidence indicated that he had received the other two. Their Honours reiterated the views expressed in SZTGK, including that there were cogent reasons for concluded that the postcode was not part of the address.
In this case, the delegate’s decision was sent to the Applicant at the correct post office box and suburb. The incorrect postcode he specified was replaced by the correct postcode for his suburb. The Applicant has not sought to contend that he did not in fact receive the letter containing the delegate’s decision.
Consistent with the reasoning in SZLBR, as the postcode is not part of the address in the sense of a physical location, sending the letter to the correct post office box number and the correct suburb would constitute dispatch to the address provided to the Department by the Applicant for the purpose of receiving documents. On this basis, as the address itself was correct, the use of a postcode other than that actually provided by the Applicant would not amount to a failure to notify the Applicant in accordance with s.494B(4) of the Act. The postcode was superfluous, so that the postcode 2206 (provided by the Applicant) did not form a necessary part of the address.
In any event, because the postcode of 2206 was incorrect it was a meaningless addition as there is not, in fact, an address in the sense of a physical location of “Dulwich Hill, NSW, 2206” because the suburb of Dulwich Hill has the postcode of 2203. On the evidence before the Court the postcode 2206 signifies two other physical locations. Even if a postcode is to be seen as part of an address, the omission by the delegate of an incorrect postcode (and insertion of the correct postcode) is not such that there was a failure to comply with or an error in complying with s.424B(4) of the Act. The omitted postcode was incorrect and superfluous and the correct postcode was used. The Department sent the letter to the correct address for the Applicant, including with the correct postcode.
I am not satisfied that there is any substance in the Applicant’s argument that taking this approach means that the Department could “make up” random addresses. That is clearly not what occurred in this case. I note in that respect that when the Applicant sought review by the Tribunal, while he nominated a different post office box number in Dulwich Hill, he consistently referred in his application for review to the correct postcode for Dulwich Hill (2203). It was not disputed that this was the correct postcode for Dulwich Hill.
Moreover it is clear that the Applicant must have received notification of the delegate’s decision. He sought review by the Tribunal. This may not be a case in which it can be said that there was no practical injustice or inconvenience, insofar as the review application was lodged a day late, but I am not satisfied that use of the correct postcode (in effect correcting a superfluous non-essential element of the address) meant that the delegate failed to comply with the requirement of notification of the delegate’s decision to the address for service the Applicant provided.
While the Applicant did not dispute receiving notification of the delegate’s decision, he has put no evidence before the Court as to whether or when he actually received a copy of the decision or how he became aware of the delegate’s decision. The evidence before the Court does not include evidence as to whether the Applicant provided the Tribunal with a copy of the delegate’s decision (or other evidence that would have enabled me to find that he had received a copy of the delegate’s decision, as distinct from becoming aware of it in some other way). This is not a case in which recourse could be had to s.494C(7) if there was an “error” within s.494C(7)(a) of the Act. However in my view there was no such error.
The notification letter was sent by registered post to the Applicant’s last notified address for service. According to the affidavit of Clyde Hungerford it was dispatched on 16 July 2014 so that under s.494C(4) of the Act the Applicant was taken to have been notified of the decision on 25 July 2013.
The prescribed period within which the review application could be lodged with the Tribunal ended on 22 August 2013 (see s.412). The Tribunal did not receive the application for review until 23 August 2013. No error has been established in the Tribunal’s view that the Applicant was notified in accordance with the statutory requirements and that as the application was lodged outside the prescribed time it had no jurisdiction. Neither ground one or ground two is made out.
Ground three is that the Tribunal erred in sending letters to the Applicant’s home address and not to his nominated mailing address. It was contended that this meant that he was not able to collect the letters and not in a position to respond to the Tribunal letters. To some extent this ground may be seen as relating to the delay in application to this Court. Beyond this it does not establish jurisdictional error.
The Tribunal’s obligation was to send its correspondence to the postal address specified by the Applicant in his application for review. That address was the (new) post office box at Dulwich Hill. It did so. Indeed it also used the correct postcode of 2203 provided to it by the Applicant. The fact that the Tribunal also sent mail to a home address is not indicative of error. The Tribunal took this approach in circumstances where letters sent to the specified PO Box were returned to sender. It sent a copy of the invitation to comment by registered mail to the Applicant’s home address. I can infer that the Applicant received that copy as he called the Tribunal about it.
The Tribunal also sent its decision by registered mail to the post office box. In addition it sent copies to the Applicant’s home address, both by registered and normal mail. Such additional attempts to ensure notification to the Applicant are not indicative of jurisdictional error.
The Applicant did not dispute that he received a copy of the Tribunal decision. Given the evidence that the Tribunal decision letters sent by registered mail to the home address and the post office box were returned to sender, it is apparent that the Applicant received the copy of the Tribunal decision sent to his home address by normal mail.
Not only is there no error on the part of the Tribunal in sending letters to the Applicant’s home address as well as his postal address but, indeed, such an approach indicates that the Tribunal was endeavouring to ensure that, in circumstances where it appeared that there may be some mistake in the Applicant’s new post office box address, he nonetheless received correspondence from the Tribunal. No lack of procedural fairness is established.
No jurisdictional error has been established on any of the bases contended for by the Applicant. Accordingly the application must be dismissed.
The Applicant has been unsuccessful. The Minister seeks costs in the scale amount of $6,646. The Applicant indicated that he was unwell, that he was sick, that he had no work rights, no ID, and could not obtain a Medicare card. He showed the Court documents from a debt collection service in relation to an outstanding debt owed to the Sydney Local Health District for medical expenses in an amount of over $11,000. It is not in dispute that the Applicant has this debt, however his lack of funds is not a reason for departing from the normal principle that an unsuccessful applicant should meet the costs of the First Respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.
As to the amount sought, while it emerged at the hearing that the matter had more complexity than was apparent from the Minister’s written submissions (in which the issue of the need for an extension of time under s.477 of the Act was not addressed), I am not persuaded that this is a matter which warrants an award of costs in the amount provided for in the Schedule to the Federal Circuit Court Rules.
The Applicant did not file written submissions prior to the hearing. The written submissions he filed today were addressed in their entirety by the solicitor for the Minister. This was not a case in which the Applicant had legal representation. Nor was it a case which raised a large number of issues or in which a large volume of material had to be considered.
While I acknowledge that there was some complexity in this matter, having regard to the nature of this and other similar matters, I am of the view that an award that would be more in line with the costs that would usually be awarded in matters of this nature and complexity would be the sum of $6,000.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Barnes.
Associate:
Date: 17 November 2014
3
3