SZVRO v Minister for Immigration
[2016] FCCA 1516
•16 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVRO v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1516 |
| Catchwords: MIGRATION – Review of former Refugee Review Tribunal decision – Tribunal finding it lacked jurisdiction because the review application had been filed late – whether the applicant had been notified of the Minister’s delegate’s decision in accordance with the statutory scheme in the Migration Act 1958 (Cth) considered – applicant notifying his address for service as the Villawood Detention Centre – applicant later granted a bridging visa – Department using the address shown on that visa – correspondence actually received – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.48A, 66, 412, 476, 494B, 494C Migration Regulations 1994 (Cth) |
| Cases cited: Maroun v Minister for Immigration & Anor [2009] FMCA 535 Maroun v Minister for Immigration [2009] FCA 1284 Pioneer Glass Pty Ltd v Minister for Immigration [2016] FCCA 1 Singh v Minister for Immigration (2015) 231 FCR 573 |
| Applicant: | SZVRO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3229 of 2014 |
| Judgment of: | Judge Driver |
| Hearing dates: | 21 June, 25 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 16 September 2016 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Ms R Graycar |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application filed on 20 November 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3229 of 2014
| SZVRO |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The issue in this case is whether the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal) was correct in its decision made on 31 October 2014 that it had no jurisdiction because the applicant’s review application was filed out of time. As will be shown, the question is not a simple one to answer but, on the state of the evidence, and by reference to the authorities, and a healthy dose of common sense, I am persuaded that the Tribunal was correct.
The following statement of background facts is derived from the Minister’s outline of legal submissions filed on 14 June 2016.
On 18 December 2012, the applicant lodged an application for a protection (Class XA) visa[1]. Two application forms are in evidence. On “Form 866C – Application for an applicant who wishes to submit their own claims for protection”, the applicant stated that his “current residential address in Australia” was “VIDC: 15 Birmingham Avenue, Villawood, NSW 2163”[2] and that his “current postal address in Australia” was “same as residential”[3]. On “Form 866B – Application for a Protection (Class XA) visa”, in answer to the question “All written communications about this application should be sent to”, the applicant ticked the box labelled “Myself”[4].
[1] Court Book (CB) 1-15; 16-27
[2] CB 2, question 16
[3] CB 2, question 17
[4] CB 24, question 20
On 18 December 2012, the Minister’s Department wrote to the applicant and stated that his protection visa application was invalid. That was said to be because s.48A of the Migration Act 1958 (Cth) (Migration Act) precluded the applicant from making a valid application in circumstances where he had previously been refused a protection visa[5].
[5] CB 28-29
On 24 July 2013, the applicant applied for a Bridging Visa E[6]. That visa was granted on 29 July 2013[7]. The visa was subject to Condition 8505, namely that the applicant “Reside at …” (the Address)[8].
[6] Affidavit of Liam Dennis affirmed 26 April 2016, Annexure LD01, page 4
[7] Annexure LD01, page 7
[8] Annexure LD01, page 10. Condition 8505 provides that “The holder must continue to live at the address specified by the holder before grant of the visa” (emphasis added). See also CB 40-41
On 8 August 2013, the Minister’s Department wrote to the applicant and indicated that his protection visa application was, in fact, valid[9]. That was said to be because of the Full Federal Court’s decision in SZGIZ v Minister for Immigration[10]. This letter was addressed to him at the Address.
[9] CB 34-39
[10] (2013) 212 FCR 235
On 17 March 2014, the Minister’s Department, by letter, invited the applicant to attend an interview in relation to his protection visa application, to be held on 8 April 2014. The invitation was also addressed to the Address[11]. The applicant attended that interview[12].
[11] CB 43-48
[12] CB 56
On 13 June 2014, a delegate of the Minister refused to grant the protection visa[13]. The applicant was notified of the decision by letter dated 13 June 2014 and which was posted, by registered post, on 16 June 2014. The notification letter was addressed to and was posted to the Address[14].
[13] CB 49-64
[14] CB 49; 71; affidavit of Julian Pinder affirmed 18 March 2015, Annexure JDP01, pages 4, 6
On 10 September 2014, the applicant lodged an application to review the delegate’s decision with the (then) Refugee Review Tribunal[15]. Relevantly, on the application form the applicant wrote[16]:
[15] CB 76-81
[16] CB 81; See also the applicant’s affidavit at [8]; [12]-[13]
I was out of time to apply for review to the Refugee Review Tribunal.
I had gone to Queensland to help my cousin move to another house. During this time the letter arrived at my home address in Sydney when I finally received the letter the review period had expired.
My cousin in Queensland could not help me and it took some time to settle down and gathered myself where a relative advised me to lodge this application today. I apologise for not applying for review in time. (errors in original)
On 23 September 2014, the Tribunal wrote to the applicant (by his representative) and indicated its view that the application for review was not valid, as it was not lodged within the necessary time period. The applicant was invited to comment by 16 October 2014[17]. No response was received[18].
[17] CB 91-92
[18] CB 99 [6]
On 31 October 2014, the Tribunal determined that it did not have jurisdiction to review the delegate’s decision[19]. The Tribunal was “satisfied that the applicant was notified of the decision in accordance with the statutory requirements” and observed that the material before it indicated that the applicant had been notified by letter dated 13 June 2014 and dispatched by post[20]. The Tribunal found that, pursuant to s.494C of the Migration Act, the applicant was taken to have been notified of the decision on 24 June 2014[21]. The Tribunal observed that an application for review had to be filed within 28 days after the day the applicant was notified of the delegate’s decision[22] and the application for review accordingly was required to have been filed by 22 July 2014[23]. As it was not filed by that time, the application had been filed out of time and the Tribunal did not have jurisdiction in the matter[24].
[19] CB 98-99
[20] CB 99 [4]
[21] CB 99 [7]
[22] CB 99 [3], [5]
[23] CB 99 [5], [7]
[24] CB 99 [7]
On 20 November 2014, the applicant commenced judicial review proceedings.
The judicial review application
In his judicial review application, the applicant sought an extension of time. That was not required because the proceeding was commenced within 35 days of the Tribunal’s decision.
The applicant raises three grounds of review. Each of those grounds alleges that the delegate, in his decision dated 13 June 2014, fell into jurisdictional error (by failing to accord procedural fairness (Ground 1), by misconstruing “significant harm” (Ground 2) and by failing to have regard to “relevant materials” (Ground 3)).
The delegate’s decision is a “primary decision”[25] and this Court does not have jurisdiction to review it[26]. The application for review, as framed, cannot succeed[27].
[25] Migration Act, s.476(4)
[26] Migration Act, s.476(2)(a)
[27] see also Prodduturi v Minister for Immigration (2015) 144 ALD 243 at [35]
This Court does have jurisdiction in relation to the Tribunal’s decision, which was a decision that the Tribunal did not have jurisdiction to review the delegate’s decision. The applicant has not impugned any aspect of the Tribunal’s decision. Notwithstanding this, the Minister has identified for the Court’s consideration a question as to whether the applicant was properly notified of the delegate’s decision, as the answer to that question may affect the correctness of the Tribunal’s decision on its own jurisdiction.
The issue raised by the Minister was raised consistently with the Minster’s position as a model litigant. The issue is, however, a highly technical one which the applicant was in no position to deal with. The hearing of the matter was delayed while the Court attempted to secure pro bono representation for the applicant. Regrettably, the Court’s attempts to arrange that representation were unsuccessful.
In addition to the court book filed on 20 February 2015, I have before me as evidence the following affidavits:
a)the affidavit of the applicant filed on 20 November 2014[28];
b)the affidavit of Julian D’Arcey Pinder made on 18 March 2015 and the annexures to it; and
c)the affidavit of Liam Michael Dennis made on 26 April 2016 and the annexures to it.
[28] except to the extent that it constitutes submissions
The applicant sought to introduce other evidence but I declined to receive it as it only went to his good character. I invited oral submissions from the applicant (he had not filed any written submissions, which is understandable as he was anticipating legal representation) but those submissions did not assist in resolving the issue raised by the Minister.
Consideration
The oral and written submissions made by counsel for the Minister have been helpful. After considering those submissions and the evidence available, I have come to the conclusion that the Minister’s submissions should be accepted. I find that the Tribunal was correct in finding that it did not have jurisdiction for the following reasons.
As the Tribunal correctly observed[29], in order to be valid, the applicant’s application for review had to be filed within a period of 28 days commencing on the day on which the applicant was notified of the delegate’s decision[30]. If the application for review was not filed within that period, the Tribunal does not have jurisdiction to review the delegate’s decision.
[29] CB 99 [3]
[30] See s.412(1)(b) of the Migration Act, which relevantly provides that an application for review to the (then) Refugee Review Tribunal “must…be given to the Tribunal within the period prescribed…”; and regulation 4.31(2) of the Migration Regulations 1994 (Cth) (Regulations), which relevantly provides that “the period in which an application for review of the decision must be given to the Tribunal by…the applicant is 28 days, commencing on the day the applicant is notified of the decision”
Section 66(1) of the Migration Act provides that when the Minister grants or refuses to grant a visa, he must notify the visa applicant of the decision in the prescribed way. The Minister is required to notify a visa application of a decision to refuse to grant a visa “by one of the methods specified in section 494B of the Act”[31].
[31] see Regulation 2.16(3). The Note to Regulation 2.16(3) further provides that “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”.
As observed at [8] above, notice of the delegate’s decision was provided by letter dated 13 June 2014[32]. Section 494B(4) of the Migration Act deals with notification by prepaid post and relevantly provides:
[32] CB 49-65
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 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…
Where the Minister (validly) gives the document by the method in s.494B(4), the document is taken to have been received seven working days after the date of the document[33].
[33] see s.494C(4)
As the letter notifying the applicant was dated 13 June 2014, the document would be taken to have been received on 24 June 2014. The 28 day time limit for seeking review in the Tribunal would have expired on 22 July 2014 – as the Tribunal correctly calculated[34].
[34] CB 99 [7]
A failure to notify the applicant in accordance with the requirements in the Migration Act has the consequence that time will not run for the purpose of making an application for review to the Tribunal[35]. Accordingly, an issue that arises is whether the notice of the delegate’s decision was dispatched in accordance with s.494B(4).
[35] Singh v Minister for Immigration (2015) 231 FCR 573 at [26]; Srey v Minister for Immigration (2003) 143 FCR 308 at [54]
Compliance with s.494B(4)
The evidence before the Court establishes that ss.494B(4)(a) and 494B(4)(b) are satisfied[36].
[36] in relation to both, see [8], above, CB 49; 71, and the affidavit of Julian Pinder affirmed 18 March 2015, Annexure JDP01, pages 4, 6. The notification letter was dated 13 June 2014. This was a Friday. The date of dispatch, 16 June 2014, was a Monday. As such, the letter was dispatched the business day after the date of the letter
Section 494B(4)(c) required the notification letter be sent to the “last address for service” or the “last residential or business address” that was “provided to the Minister by the recipient for the purposes of receiving documents”.
As noted above[37], the notification letter was sent to the Address. That was the residential address “specified by the [Applicant]” (to the Department) for the purpose of condition 8505 attached to the Bridging Visa E granted to the applicant on 29 July 2013[38]. The Address was thus the “last residential address” that was “provided…by the recipient [ie the Applicant]” to the Minister[39].
[37] at [8]
[38] see Form 1212, which specified the Address and was signed by the applicant: affidavit of Liam Dennis affirmed 26 April 2016, Annexure LD01
[39] see [5], above
While there is no specific document that was before the Tribunal or that is before this Court that directly states that the Address was provided “for the purpose of receiving documents”[40], the Minister submits that this Court should infer that the Address was provided “for the purpose of receiving documents”(albeit it was also provided for the purpose of satisfying condition 8505), and thus could validly be relied upon in relation to s.494B(4)(c). I accept that submission.
[40] cf s.494B(4)(c)
Having regard to the circumstances surrounding the application for the protection visa, the grant of the Bridging Visa E, and the applicant’s subsequent dealing with the Minister’s Department, the Minister notes the following:
a)on his protection visa application, the applicant indicated that all “written communications” about his protection visa application should be sent to “Myself”[41]. At that time, the applicant was in Villawood Immigration Detention Centre (VIDC). The only residential and postal address he gave was VIDC[42];
b)on 24 July 2013, the Minister’s Department indicated to the applicant that it was treating his protection visa application as valid[43]. That led to the Bridging Visa E application being lodged;
c)for his bridging visa application, the applicant himself specified the Address as the residential address at which he would reside upon grant of that visa. Significantly, nothing in the Bridging Visa E documentation indicates that the applicant provided any other means by which he could be communicated with (eg. a fax number, email address or other postal address);
d)the grant of the Bridging Visa E had the consequence that the applicant was released from VIDC (and would be living at the address he specified, namely, the Address). Evidently, the address the applicant provided in his protection visa application (ie. VIDC) was no longer of any utility in receiving documents;
e)given that the protection visa application was only accepted as valid in July 2013 – at the same time the applicant provided the Address as his residential address – it can be inferred that a range of additional correspondence about the visa application would be sent between the applicant and the Minister’s Department. Common experience shows that the dispatch of documents to a person’s current residential address is a frequently (and successfully) used method of written communication;
f)Departmental records, contemporaneous to the time at which the applicant provided the Address and the bridging visa was granted, indicate that the Minister’s Department understood that that address was the applicant’s contact address[44];
g)on 17 March 2014, the Minister’s Department dispatched an invitation to attend an interview with a delegate to the Address[45]. There has never been any issue that that correspondence was received, as the applicant attended the interview as scheduled. This, too, supports the conclusion that the Address was used for the receipt of documents. Moreover, upon receipt of the invitation, the applicant never indicated to the Department that the address was not intended to be used for correspondence, nor did he seek to provide any other address for the receipt of documents.
[41] CB 24, question 20
[42] CB 2, questions 16-17
[43] see affidavit of Julian Pinder affirmed 18 March 2015, Annexure JDP01, page 5
[44] eg CB 40-41; Affidavit of Julian Pinder affirmed 18 March 2015, Annexure JDP02, page 10
[45] CB 43-48
Whether an address has been provided for the purpose of receiving a document is to be answered objectively (and not solely by reference to the applicant’s subjective intention)[46]. When viewed objectively, the circumstances outlined above, in particular that the applicant had indicated all written correspondence must be sent to him; had himself provided an updated residential address (ie. the Address) but no other contact details; use of the only other residential and postal address that was provided in the past (VIDC) would obviously not result in the successful delivery of documents; and the applicant’s subsequent dealings with the Minister’s Department (including his statement at CB 81 that “the letter arrived at my home address in Sydney”, I infer that the giving of the Address to the Minister’s Department was “for the purpose of receiving documents”.
[46] see my decision in Maroun v Minister for Immigration & Anor [2009] FMCA 535 at [46]. Affirmed on appeal: Maroun v Minister for Immigration [2009] FCA 1284 per Jagot J
It follows that, in dispatching the notification of the delegate’s refusal decision to the Address, there was compliance with s.494B(4)(c).
Conclusion – compliance with section 494B(4) and notification
For the reasons set out in [27]-[33] above, the applicant was notified in accordance with s.494B(4) and, pursuant to s.494(C)(4), was thus taken to have been notified on 24 June 2014. The Tribunal was accordingly correct in finding that the time limit for seeking review expired on 22 July 2014 and thus that the application for review was made out of time.
The operation of s.494C(7)
If I am wrong in the above analysis, I could not accept the Minister’s argument that the Address was provided “for the purpose of receiving documents” and I would be bound to conclude that s.494B(4) had not been complied with. The Minister submits that in that event s.494C(7) applies such that the applicant is in any event taken to have been notified on 24 June 2014. Section 494C(7) provides:
Document not given effectively
(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.
The evidence before the Court indicates that the applicant did, in fact, receive the notification letter (and attached decision record)[47]. Section 494C(7)(b) is thus satisfied.
[47] see CB 78, question 15; CB 81, question 17 (attaching a copy of those documents); CB 81 (handwritten notes); applicant’s affidavit [8]; [12]-[13]
In relation to s.494C(7)(a), in dispatching the notification letter by prepaid post, the Minister purported to give that document to the applicant “in accordance with a method specified in section 494B” (namely, s.494B(4)). Thus, if I were to find that s.494B(4) had not been complied with because the Address was not provided “for the purpose of receiving documents” I accept that s.494C(7)(a) would then be engaged, because the Minister could be seen as having “ma[de] an error” in giving the documents in accordance with s.494B(4) (the error made being the purportedly erroneous conclusion that the Address had been provided for the purpose of receiving documents).
The proposition that s.494C(7)(a) applies to an error arising from sending a document to an address that has not been “provided…for the purposes of receiving documents” is supported by my recent decision in Pioneer Glass Pty Ltd v Minister for Immigration[48]. In that case, an unsuccessful attempt was made to notify Pioneer Glass’ authorised recipient of a delegate’s decision by email. That (unsuccessful) notification email was sent to the last email address actually provided for correspondence[49]. Three days later (on 30 June 2014), a fresh notification email was sent to the authorised recipient but at a second (different) email address. The second email address had not been specified for email correspondence[50] and I observed that it “seems to have been obtained from Departmental records in an unrelated case”[51]. It was accepted that the notification email was received on 30 June 2014.
[48] [2016] FCCA 1
[49] at [14]
[50] at [19]
[51] at [14]
I observed that pursuant to s.494B(5)(b) and (d), the Minister may give a document to a person by transmitting it by email “to the last email address provided to the Minister for the purpose of receiving documents”[52] and that s.494B “must be read subject to s.494C(7)”[53]. I concluded that, because Pioneer Glass accepted that it did receive the 30 June 2014 email, the sending of the email to the second address had the effect of notifying Pioneer Glass of the delegate’s decision, even though the email to which it was sent was “not the address…specified for email correspondence” (and apparently obtained by the Department “in an unrelated case”)[54]. I cited s.494C(7) as authority for that conclusion[55] and observed that notification occurred on 30 June 2014[56] for the purposes of applying to the Tribunal for review[57].
[52] at [15]. Pioneer Glass is thus applicable to the present matter, as both cases involved a statutory requirement under s.494B to send a document to the “last…address…provided to the Minister…for the purpose of receiving documents” (emphasis added)
[53] at [16]
[54] at [19]
[55] see [19] and footnote 15
[56] see s.494C(5)
[57] at [20]
The applicant is unable to establish that he received the notification letter later than 24 June 2014. It appears from his affidavit evidence that no one was home when the letter was delivered. Later, somebody at the house re-directed the letter to the applicant in Queensland but, by the time it reached him it was too late to apply to the Tribunal.
As s.494C(7)(a) and (b) are both satisfied in the present matter, the deeming effect of s.494C(7) operates, such that the applicant is “taken to have received the document at the times mentioned in [s.494C] as if the Minister had given the document to the person without making an error in doing so”. For the reasons set out previously, the applicant is thus taken to have received the notification letter on 24 June 2014[58] and the 28 day period for seeking review of the decision ran from that time. It follows, therefore, that s.494C(7) would additionally support the Tribunal’s conclusion that the relevant period within which the applicant was required to lodge his application for review expired on 22 July 2014.
[58] see s.494C(4)
Conclusion
The applicant is unable to demonstrate that the decision of the Tribunal was affected by any jurisdictional error. The decision by the Minister’s delegate, to which the applicant took issue in his application to the Court, is outside this Court’s jurisdiction.
I will order that the application be dismissed.
I will hear the parties as to costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 16 September 2016
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