SZVHE v Minister for Immigration
[2016] FCCA 2332
•7 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVHE & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2332 |
| Catchwords: MIGRATION – Application for review of former Refugee Review Tribunal decision – whether Tribunal had jurisdiction to review the decision of the Minister’s delegate – whether applicants had been properly notified of the delegate’s decision – no error in Tribunal finding it did not have jurisdiction – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.66, 412, 494B, 494C, 476 Migration Regulations 1994 (Cth), regs.2.16, 4.31 |
| Cases cited: Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 377; (2000) 98 FCR 77 MZZDJ v Minister for Immigration and Border Protection [2013] FCAFC 156; (2013) 216 FCR 153 |
| First Applicant: | SZVHE |
| Second Applicant: | SZVHF |
| Third Applicant: | SZVHG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2883 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 1 August 2016 |
| Date of Last Submission: | 1 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 7 September 2016 |
REPRESENTATION
| Applicants: | First applicant on behalf of the second applicant and as litigation guardian of the third applicant |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application made on 17 October 2014 is dismissed.
The first and second applicants pay the first respondent’s costs set in the amount of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2883 of 2014
| SZVHE |
First Applicant
| SZVHF |
Second Applicant
| SZVHG |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 17 October 2014 seeking review of the decision of the Refugee Review Tribunal, now known as the Administrative Appeals Tribunal (“the Tribunal”), made on 29 September 2014, whereby it determined that it did not have jurisdiction to review the delegate’s decision which refused the grant of protection visas to the applicants (CB 175).
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”). Also in evidence is the affidavit of the applicant made on 16 October 2014, and the affidavit of the applicant made on 7 April 2015.
Background
The applicants are husband (“the applicant”), wife (“the second applicant”) and their son (“the third applicant”). They are citizens of Bangladesh. The applicants arrived in Australia as visitors on 10 August 2013. They applied for protection visas on 6 September 2013 (CB 1 to CB 57). The second applicant and the third applicant applied as members of the family unit and did not have claims to protection of their own (CB 16 to CB 29). The application was refused on 8 May 2014 (CB 102). The applicants applied to the Tribunal for review of that decision on 11 July 2014. They were represented by a registered migration agent and lawyer (CB 129 to CB 136).
The issue in these proceedings is whether there is legal error in the Tribunal’s determination that it did not have jurisdiction to review the delegate’s decision. The Tribunal’s decision record and the substance of the complaint raised in the applicant’s grounds, evidence and submissions, directs attention to the question as to whether the Tribunal was in error in finding that the applicants had been properly notified of the delegate’s decision, thus commencing the statutory and regulatory period by which the applicants were required to make their application to the Tribunal.
The Minister’s written submissions, dated 25 July 2016, provide a fair summary of the relevant events which occurred during the processing of the application by the delegate, events which inform the question as to whether the applicants were subsequently and properly notified by the delegate of his decision. I adopt those submissions for the purposes of this judgment ([3] – [5] of the Minister’s written submissions):
“[3] … By letter dated 6 January 2014, the applicant was invited to an interview on 28 January 2014 with the first respondent (the Department) to discuss his protection visa application (CB 94, 122). While the application was being processed, the following relevant events occurred:
(a) On 8 November 2013, the Department received a ‘change of address and/or passport details’ form (the first change of address form) providing new contact details (CB 70).
(b) On or about 28 January 2014, the applicant submitted a further ‘change of address and/or passport details’ form (the second change of address form) providing new contact details (CB 100). The second change of address form provided the following address (CB 100: [8]):
Unit 29
10-16 Hegerty Street
Rockdale NSW 2216 (the Rockdale address).
[4] In the second change of address form, the applicant indicated that he did not agree to the Department communicating with him by fax, email or other electronic means (CB 100: [10]). The effective date for the new contact details was stated to be
‘25-Jan-2013’ (CB 100: [11]).
[5] On 8 May 2014, the delegate refused to grant the applicant a protection visa (CB 114). The applicant was notified of that decision by letter dated the same day as the decision, 8 May 2014 (CB 102). That letter was sent to the Rockdale address by registered post (CB 102, 128; CB 176: [3]). On 12 June 2014, the notification letter was returned to the Department marked ‘refused’ and ‘unclaimed’ (CB 128).”
The Tribunal found that it did not have jurisdiction to review the delegate’s decision because the application for review made to it, was not made by the applicants within 28 days of having been notified of the delegate’s decision as required by the operation of s.412(1)(b) of the Act and reg.4.31 of the Migration Regulations 1994 (Cth) (“the Regulations”).
The Minister’s written submissions set out the Tribunal’s reasoning. I am satisfied that they are also a fair summary of the Tribunal’s reasoning and I adopt them for the purposes of this judgment
([7] – [10] of the Minister’s written submissions):
“[7] The Tribunal noted that the material before it indicated that the applicant was notified of the delegate’s decision by a letter dated 8 May 2014 which was dispatched by post to the address provided in the second change of address form (CB 176: [3]).
[8] The Tribunal considered submissions made by the applicant’s representative on 28 August 2014 to the effect that the applicant had submitted a ‘form 1193’ to the Department requesting that communications with the applicant be by email and that the delegate’s decision was not notified in this way (CB 176: [3]; CB 152-153). The Tribunal also acknowledged the applicant’s statement provided to the Department on 26 September 2014 which ‘describes the circumstances in which’ the applicant claims to have provided the ‘form 1193’ on 20 December 2013 (the applicant also states the date was 20 December 2014) (CB 177: [6]; 167).
[9] The Tribunal noted that the applicant had not provided any evidence of the ‘form 1193’, nor did that document appear on the Departmental file (CB 177 [6]-[7]). However, the Tribunal was ‘willing to accept’ that the applicant ‘may’ have provided such a form to the Department on 20 December 2013 (CB 176: [6]). However, the applicant provided the second change of address form after that date – on 28 January 2014 – setting out the Rockdale address, and stating that he did not consent to receiving communications electronically (CB 176: [7]).
[10] In those circumstances, the Tribunal considered it appropriate for the Department to have corresponded with the applicant by post, and was satisfied that the applicant was notified of the decision in accordance with statutory requirements. The Tribunal concluded that the application for review of the delegate’s decision had not been made within time (CB 178: [8]).”
I further note the Minister’s written submissions at [11]:
“The first respondent notes that in the applicant’s statement provided to the Department on 26 September 2014, the applicant states that a ‘form 1193’ was provided at the delegate interview on 20 December 2013 (the applicant also states the date was 20 December 2014) (CB 167). However, by letter dated 6 January 2014, the applicant was invited to attend an interview with the Department in relation to his protection visa which occurred on 28 January 2014 (CB 94, 122). There is no evidence of any email correspondence dated 5 December 2013 nor any delegate interview on 20 December 2013 as claimed by the applicant (CB 167). It appears that the Tribunal erroneously proceeded on the basis of the applicant’s submission that such correspondence and interview occurred (CB 177: [7]). In any event, the first respondent submits that the Tribunal was correct to find that it did not have jurisdiction to review the delegate’s decision.”
Application Before the Court
The application before the Court is in the following terms:
“1. The Refugee Review Tribunal (the Tribunal) made error of law and failed to exercise the proper procedure in relation to make decision on the review of the applicant’s protection visa rejection by the Minister’s delegate.
2. The manner in which the tribunal dealt with the application and the applicant was such that it is possible to fairly apprehend that the tribunal did not bring an impartial mind to the resolution of the matter before it.
3. The second respondent has denied the applicant’s natural justice and procedural fairness pursuant to s414A(1) of the Migration Act 1958.
4. The applicant claims that the Tribunal was preoccupied and that was why his dependents and he were denied natural justice and procedural fairness when the Tribunal formed the view about its jurisdiction as the first respondent failed to notify of its decision, to the applicants, according to law. The Tribunal did not follow the hearing rule as based on Maxim which is clearly recognized as a denial of procedural fairness.
5. The applicants were deprived of the natural justice and procedural fairness. Because the first respondent, the Minister, did not afford the applicant whose interest has adversely affected due to incorrect way of serving its decision. The applicants were not properly notified by the first responded of its decision.”
[Errors in original.]
Consideration
The applicants’ grounds and submissions are based, in essence, on one central proposition. That is, notwithstanding that the applicants notified the Minister’s department on 28 January 2014 of a new address for correspondence (residential address) by use of the relevant form, which also indicated that they did not want to receive correspondence electronically, the next day, the applicant submitted to the Minister’s department at the office counter, another form in which he consented to receiving correspondence via email. The claim is that the Minister failed to properly notify the applicants of the delegate’s decision because it was sent to the residential address, and not to the email address.
Before the Court the first applicant appeared in person with the assistance of an interpreter in the Bengali language. He indicated that he was speaking on behalf of his wife, the second applicant, and as litigation guardian of his son, the third applicant. In his oral submissions, the applicant sought to emphasise four matters.
First, that he was unfairly treated because he was not actually notified of the delegate’s decision. That is, that he did not receive any “card” from the post office notifying him that the letter of notification of the delegate’s decision was available for collection. The latter assertion has not been put before the Court in any evidentiary context. In any event, even if it had, it would not assist the applicants. The relevant statutory scheme relating to the notification of the delegate’s decision does not require actual receipt of the letter. What is required is that the Minister comply with the relevant statutory and regulatory requirements. If he does so, as I have set out below, then the applicant is deemed to have received the letter (see at [35] below).
Second, the applicant relied on his evidence in his affidavit of 7 April 2015, to the effect that on 29 January 2014, he gave another “form 929” to the Minister’s department in which he agreed that the department should communicate with him by email. He also provided a telephone number. The applicant claimed that the department’s failure to send the notification letter by email, or to telephone him, was unreasonable.
The Minister argued that the applicant had not established that he in fact had given the form to the Minister’s department on 29 January 2014 as he claimed. The Minister submitted that there was no evidence that the department had received the applicant’s form.
The difficulty for the Minister is that the applicant gave evidence in his affidavit of 7 April 2015, that he submitted the “form 929” in the terms outlined. The Minister did not object to leave being granted for the affidavit to be read into evidence. He made no objection based on the non-admissibility of the relevant part of the affidavit.
Importantly, the Minister chose not to cross-examine the applicant on his evidence. In these circumstances, it is not sufficient to say that the applicant’s evidence should not be accepted because there is no record in the department’s files of the receipt of the relevant form.
Therefore, I accept that the applicant did give this form to the Minister’s department as his evidence states (however, see further below at [51] – [57]).
Third, the applicant submitted that on or about 20 December 2013, he had been sent a form by the Minister’s department which was clearly a “mistake”. The form related to an application for a bridging visa. He stated that he had not applied for any such visa.
I ultimately understood the applicant’s complaint to be that the Tribunal had somehow acted in error in relation to its finding about the sending of the notification of the delegate’s decision. That is, the Minister’s department had made a “mistake” on this occasion and therefore it was open to find it made a “mistake” when it sent the letter of notification.
This submission was not based on any evidence given by the applicant. However, even if any such document had been sent in error to him by the Minister’s department, there is nothing before the Court to show that it was relevant to the statutory scheme concerning notification of the delegate’s decision, or that it was relevant to the question of the Tribunal’s jurisdiction.
Fourth, the applicant submitted that he had made a mistake in the form (Form 929) that he submitted to the Minister’s department on 28 January 2014. The applicant said that he “corrected” this mistake as soon as he realised it and submitted another form (Form 929) on 29 January 2014, consenting to receipt of correspondence by email. He then asked the Court to give him “another chance” because he had “little children”.
The issue before the Court is whether the Tribunal was correct in its determination that it did not have jurisdiction to review the delegate’s decision. For the reasons set out in this judgment, there was no legal error in that determination. In these circumstances, it is not for the Court to give the applicant a “second chance”.
As is clear from the above, the grounds of the application and the applicants’ arguments in support direct attention to the relevant statutory scheme. The relevant provisions of the Act and the Regulations are as follows:
1)Section 66(1) and (2) of the Act:
“66 Notification of decision
(1) 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.
(2) 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.
…”
2)Regulation 2.16(1) and (3) of the Regulations:
“2.16 Notification of decision on visa application
(1) For subsections 66(1) and 501G(3) of the Act (which deal with giving notice of decisions), this regulation sets out the way of notifying a person of a decision to grant or refuse a visa.
…
(3) The Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act.
Note: If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.”
3)Section 494B(1) and (4) of the Act:
“494B Methods by which Minister gives documents to a person
Coverage of section
(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:
…
Dispatch by prepaid post or by other prepaid means
(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 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.”
4)Section 494C(1) and (4) of the Act:
“494C When a person is taken to have received a document from the Minister
(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).
…
Dispatch by prepaid post or by other prepaid means
(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.”
The Tribunal’s decision record only makes specific reference to some parts of the relevant statutory scheme. It is silent on the others. This requires the Court to consider the entirety of the relevant evidence to determine whether any of those parts of the statutory scheme not referenced by the Tribunal, may nonetheless reveal that its determination, by omission, contained some legal error.
As the Tribunal set out at [2] of its decision record (at CB 176), s.412(1)(b) of the Act and reg.4.31 of the Regulations (relevantly, reg.4.31(2) of the Regulations) provide that an application for review of the delegate’s decision must be made within 28 days of when the applicant received notification of the delegate’s decision. However, as stated above, the Tribunal’s findings at [7] (at CB 177), that “the applicant” was notified of the delegate’s decision in accordance with the “statutory requirements” is directed only to some parts of the statutory and regulatory scheme.
Section 66(1) of the Act is the starting point of such requirements, stating that notification of a refusal to grant a visa must be done in the “prescribed way”. This prescription is set out in reg.2.16(3) of the Regulations, which sets out that notification must be delivered by one of the methods specified in s.494B of the Act.
There is no reference in the Tribunal’s decision record to s.66 or s.494B of the Act. Section 66(2) of the Act states that the notification letter must contain certain information. There is no mention of this requirement in the Tribunal’s decision record.
However, having regard to the evidence before the Court, I note that the delegate’s letter of 8 May 2014, notifying the applicants of the delegate’s decision, complied with the relevant statutory and regulatory requirements (CB 102 to CB 127). The letter specified the relevant criteria that the applicant did not satisfy (CB 127), gave written reasons for this (CB 114 to CB 127), and set out the applicants’ review rights, the relevant provisions, and told the applicants where to apply for review (CB 103).
While no explicit reference is made to s.494B of the Act within the Tribunal’s reasons for decision, the evidence that was relevantly before the Tribunal shows that the applicants were notified of the decision by a method that was set out in s.494B of the Act, in particular “dispatch by prepaid post”. Section 494B(4) provides that the document must be dated and dispatched within three working days, to the last address for service provided to the Minister by the applicants for the purposes of receiving documents.
The evidence before the Tribunal was that the letter was dated 8 May 2014 and dispatched by registered post on the same day, to the applicants at their residential address, which was provided by the applicant to the Minister on 28 January 2014, for the purpose of receiving correspondence.
While the Tribunal’s decision record does not set out the requirements under s.494B of the Act, I find, on balance, that the references to the notification letter of 8 May 2014 and the prescribed period, pursuant to s.494C of the Act, are sufficient, to say that the Tribunal implicitly included this section in its consideration and its finding, under s.494C of the Act, and that the letter was sent “in accordance with the statutory requirements” ([7] at CB 177).
The evidence before the Tribunal, and now the Court, reveals that the notification of the delegate’s decision was sent by registered post. The “registered post” sticker and relevant number are reproduced on the face of the letter (CB 102). Registered post has been held to be a form of prepaid post (Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 377; (2000) 98 FCR 77 at [29] and SZOBIv Minister for Immigration and Citizenship (No 2) [2010] FCAFC 151; (2010) 119 ALD 233 at [13]).
There is no evidence before the Court of any postal log that may have been held by the Minister’s department at the relevant time. However, the evidence before the Court contains a copy of an envelope which has written on its face the applicant’s name, and residential address. The envelope also bears a registered post label bearing the same number as that appearing on the face of the notification letter. That envelope was returned to the Minister’s department on 12 June 2016 and marked “unclaimed” and “refused” (CB 128).
I accept, on balance, that the letter of notification was posted to the applicant at the residential address he provided on 28 January 2014. Further, the post mark date of “09 May 14 21.06”, which also appears on the envelope, is sufficient in the circumstances to infer, and find, that the letter was dispatched on 9 May 2014, which is one day after the date of the letter of notification (CB 128). The Minister’s delegate therefore complied with s.494B(4)(a) of the Act which requires such a document to be dispatched within three working days of the date of the letter.
While s.494C(4) of the Act is not specifically mentioned in the decision record, the Tribunal clearly relied on this subsection, as it had referred to the letter of 8 May 2014 which had been sent by post on 9 May 2014 ([8] at CB 178). As stated above, the applicant was taken to have received the letter, in accordance with s.494C(4)(a) of the Act, seven working days after the date of the letter (8 May 2014), which is 19 May 2014. That date is relevantly identified by the Tribunal at [8] of its decision record (at CB 178). I agree with the Minister’s submission that it is not relevant whether or not the applicant actually received the letter (MZZDJ v Minister for Immigration and Border Protection [2013] FCAFC 156 at [17] and Minister for Immigration and Citizenship v Manaf [2009] FCA 963; (2009) 111 ALD 437 at [21]).
As the Tribunal identified, s.412(1)(b) of the Act and reg.4.31 of the Regulations, govern the prescribed period within which the applicants should have made their applications for review. There is no error in the Tribunal’s calculation that the 28 day period ended on 16 June 2014, and the subsequent finding that it did not have jurisdiction to review the delegate’s decision, in circumstances where no application for review had been made to it within the prescribed period.
Ultimately, whether the Tribunal had jurisdiction in this matter is a “jurisdictional fact” for the Court to determine. The evidence before the Court reveals that on the material that was before the Tribunal, there is no error in the Tribunal’s consideration of the relevant date by which an application for review needed to have been made. It was open to the Tribunal to find that the application was not made within the prescribed period.
The Tribunal had no discretion to extend time, therefore, the Tribunal had no jurisdiction to review the delegate’s decision (SZRLH v Minister for Immigration and Citizenship [2013] FCA 384, NACG v Minister for Immigration & Multicultural Affairs [2002] FCAFC 173 and Fernando v Minister for Immigration & Multicultural Affairs [2000] FCA 324; (2000) 97 FCR 407).
Ground one of the application asserts that the Tribunal “failed to exercise the proper procedure”. To the extent that this is a complaint that the Tribunal was in error in finding that the notification of the delegate’s decision was sent in accordance with the relevant statutory and regulatory procedure, what is set out above stands in answer to that complaint (but see also grounds four and five below).
The Minister understood ground one to also complain that there was a denial of procedural fairness in the conduct of the Tribunal. I agree with the Minister that the procedural fairness requirements set out at Division 4 of Part 7 of the Act have no application in circumstances where the Tribunal has found it has no jurisdiction to conduct a review (SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 (“SZEYK”) at [34] – [35]).
Given that the process of the Tribunal’s consideration of the question of whether it has jurisdiction is not a matter dealt with in Division 4 of Part 7 of the Act, it may be that the Tribunal was required to provide procedural fairness at common law (SZEYK at [34] – [37] and Cheng v Minister for Immigration and Citizenship [2011] FCA 1290; (2011) 198 FCR 559 at [33]).
In any event, on the evidence before the Court, the Tribunal discharged its obligation. It wrote to the applicant on three occasions directing the applicants’ attention to the issue that the application was filed out of time and invited the applicants’ comments (CB 151, CB 158 and CB 164). The applicant and his representative responded to each invitation (CB 152, CB 160 and CB 166). In these circumstances, there is no apparent failure to provide procedural fairness. Ground one is not made out.
Ground two asserts that the Tribunal did not bring an impartial mind to the resolution of the matter before it. This can only be understood as an attempt to assert bias on the part of the Tribunal member.
Such an allegation must be distinctly made and clearly proved (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) CLR 507 at [69]). The applicants’ mere assertion cannot be said to have been distinctly made. There is certainly no evidence provided by the applicant to say that it had been clearly proven.
On the evidence that is before the Court, there is nothing to show that the Tribunal did not bring an open mind to the making of its decision or that a fair-minded lay observer might reasonably apprehend that it did not (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28, Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45 at [37] and Minister for Immigration and Citizenship v SZNPG [2010] FCAFC at [18]). Therefore, ground two is not made out.
Ground three asserts that the applicant was denied “natural justice and procedural fairness pursuant to s414A(1)” of the Act. This section was repealed with effect from 16 December 2014. However, it was in effect at the time of the Tribunal’s decision. In essence, the section provided that an application for review of a refusal of a protection visa had to be determined by the Tribunal within 90 days of the Tribunal’s receipt of the relevant documents from the Minister’s department.
The difficulty for the applicants’ ground is that, as set out above, the application for review was not validly made under s.412 of the Act, as it was made out of time. Section 414A was only engaged if an application was made within time and engaged the Tribunal’s jurisdiction.
In any event, even if this were not the case, the Tribunal did make its decision within 90 days of the making of the application on 11 July 2014. The Tribunal made its decision on 29 September 2014, some 80 days after the relevant decision.
However, the applicants ground is further misconceived because even if it could be said that the Tribunal failed to comply with s.414A(1) of the Act, non-compliance did not affect the validity of the decision (SZKJV v Minister for Immigration and Citizenship [2011] FCA 80 at [23] and SZNHC v Minister for Immigration & Anor [2009] FMCA 1063 at [37]). In all, ground three is not made out.
Grounds four and five repeat the allegations of a failure of procedural fairness and bias. They are not made out for the reasons already given in this judgment.
For the remainder, the grounds complain about the central issue pressed by the applicant before the Court, and for that matter before the Tribunal. That is, that the applicants were not properly notified in accordance with the statutory and regulatory requirements of the delegate’s decision.
As set out above, the letter of notification complied with s.66 of the Act. The letter was sent consistently with reg.2.16 of the Regulations, using the method available at s.494B(4) of the Act. The letter complied with the relevant requirements at s.494B(4) of the Act. In these circumstances, s.494C of the Act operates, as set out above, to result in the application for review being made out of time.
In his submissions and evidence before the Court, the applicant variously states that he provided new contact details to the Minister’s department on 20 December 2013, and on 29 January 2014.
It would appear that the reference to the notification of 20 December 2013 is relied on by the applicant for the purpose of saying that he provided a new address for receiving documents at that time. In his letter of 1 September 2014 to the Tribunal, the applicant states that he filled out the relevant form, lodged it with the Minister’s department, but was not given a copy of it (CB 167). He claims in submissions that in this notification he consented to communication by email.
Despite the opportunity, the applicant provided no corroborative evidence to the Tribunal of having lodged the relevant document at that time. Nor, importantly, does the applicant’s affidavit before the Court, make any reference to having lodged such a document on 20 December 2013.
In any event, on the evidence before the Court, the Tribunal correctly identified that notwithstanding whatever the applicant had lodged in the past, he provided another change of address form on 28 January 2014. This form provided a new residential address for the receipt of documents and stated that the applicant, who signed the relevant form, did not want to receive communication by any electronic means, including email, and wanted correspondence to be sent to the street address provided (CB 100 to CB 101).
In the circumstances, there is no error in the Tribunal’s finding that the applicants were properly notified of the delegate’s decision by the letter of 8 May 2014, given that it had been sent to the address provided by the applicant for that purpose.
Before the Court, the applicant did not dispute that he lodged this change of address notice on 28 January 2014. His assertion, and his evidence, was that on 29 January 2014, he lodged another form, where he indicated his consent to electronic communication.
It is of note that the applicants’ responses to the Tribunal’s invitations to comment made no reference to having lodged yet another form on 29 January 2014. The responses were focussed on having lodged such a form on 20 December 2013. A form for which there was no evidence on the departmental file received by the Tribunal.
As set out above, the applicant has annexed a copy of a change of address form to his affidavit of 7 April 2015 which he says he gave to the Minister’s department on 29 January 2014. In the circumstances (the Minister did not challenge it) that evidence must be accepted.
In his submissions to the Court, the applicant has provided a long account of what he says occurred on 29 January 2014 at the Minister’s office in Sydney. In essence, the applicant realised his error on 28 January 2014, and with the help of a friend, provided electronic lodgement of the change of address form and then attended the department’s Sydney office on 29 January 2014, where he was refused a receipt for, or a copy of, the form by an officer who refused to identify herself. None of this is given in evidence.
In any event, what the applicant says occurred on 29 January 2014 does not assist him now. This is because s.494B of the Act provides alternative methods by which the Minister can, relevantly, notify an applicant of a visa decision.
As stated above, s.494B of the Act requires the Minister to give a document to a person by one of the methods specified in that section. In effect, these are giving the document by hand (s.494B(2)), handing it to a person at the last residential or business address (s.494B(3)), dispatch by prepaid post or by other prepaid means (s.494B(4)), or transmission by fax, email or other electronic means (s.494B(5)). The Act does not require the Minister to utilise all or a combination of these. The obligation is to use one of these.
In the current case, the Minister chose to send the relevant document by prepaid post. On the evidence, it was sent to the last residential address provided by the applicant for the purpose of receiving documentation. While, of course, the Minister could have chosen to send the document by email, the Minister is not obliged to do so. As the Minister submits, he is free to determine which method to use in any given case (Minister for Immigration & Border Protection v Kim [2014] FCA 390; (2014) 220 FCR 494 at [42] - [46], Rahman v Minister for Immigration and Border Protection [2016] FCA 662 at [21]). Therefore, even if the applicant did lodge the form on 29 January 2014, the notification letter was still sent to the most recent residential address provided by him for the purpose of receiving documentation.
I did consider whether the Minister’s election in this regard was reasonable in the circumstances. On the evidence before the Court, the Minister’s department communicated with the applicant by letter sent to a residential address on two previous occasions. The letter of 20 September 2013 acknowledging the application for the visa (CB 58), and an invitation to attend an interview dated 6 January 2014 (CB 94). The applicant has given no evidence to the Court, as distinct from submissions, that he received any other communications electronically from the Minister’s department.
For the sake of completeness, I note a matter raised by the Minister. By letter dated 28 August 2014, the applicants’ then representative asked the Tribunal to delay making its decision until the resolution of a Freedom of Information (“FOI”) request made to the Minister’s department (CB 152).
The Tribunal’s decision record shows that it subsequently made enquiries of the Minister’s department and found the FOI matter had been concluded ([5] at CB 177 and see CB 161). Given that the Tribunal had already given the applicant three opportunities to comment on the relevant issue, I agree with the Minister that in the circumstances, it was reasonable for the Tribunal to proceed to make its decision (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332).
Conclusion
In all, there is no error in the Tribunal’s determination that it did not have jurisdiction to review the delegate’s decision. The Tribunal, in the circumstances, was correct in that conclusion. None of the applicants’ grounds are made out. The application should be dismissed. I will make an order accordingly.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 7 September 2016
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