THAPA v Minister for Immigration - [2015] FCCA 2845

FEDERAL CIRCUIT COURT OF AUSTRALIA

THAPA v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2845

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Student (Temporary) (Class TU) visa – jurisdiction of the Tribunal – whether notice of cancellation was properly served – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116, 247, 338, 347, 476, 494B

Migration Regulations 1994, regs.2.55, 4.10, condition 8202

Minister for Immigration & Multicultural & Indigenous Affairs v George [2004] FCAFC 276
Zhan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 327

Applicant:

NIRAJ THAPA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1565 of 2015

Judgment of:

Judge Street

Hearing date:

22 October 2015

Date of Last Submission:

22 October 2015

Delivered at:

Sydney

Delivered on:

22 October 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents:

Ms S Given
Sparke Helmore

ORDERS

The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the amount of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1565 of 2015

NIRAJ THAPA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth), in which the applicant seeks a Constitutional writ in respect of the decision of the Tribunal made on 2 June 2015, holding that the Tribunal did not have jurisdiction.
On 18 November 2014, the Department sent the applicant a notice of intention to consider cancellation of Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) Visa under s.116 of the Migration Act 1958. That letter identified grounds of cancellation, being that it appears that the applicant may not have complied with s.116(b), a breach of condition 8202 which is imposed on the visa.
The letter identified that condition 8202(2)(a) states that visa holder meets the requirements if the visa holder is enrolled in a registered course. Materially it said:
Based on evidence available to me in the provider registration and international student management system (PRISMS), it appears that you have not been enrolled in a registered course of study since 7 February 2014. Therefore it appears you do not meet the requirements of condition 8202(2)(a).
That letter was sent to the last known address of the applicant by registered post. It appears the letter was returned to sender and received back by the first respondent on 10 December 2014, not having been collected by the applicant. On 15 December 2014, the delegate sent by registered post a notification of cancellation of Student (Temporary) (Class TU) Higher Education Sector Subclass 573 Visa under s.116 of the Migration Act 1958. That notification of cancellation noted that there had been no response to the letter dated 18 November 2014.
The delegate referred to the PRISMS record, and it appears that the applicant had not been enrolled in a registered course of study since 7 February 2014, and therefore it appears the applicant did not meet the requirements of condition 8202(2)(a).
That letter of notification appears to have been returned to the Department on 12 March 2015, with a “return to sender” marking, and was not received by the applicant. On 16 July 2015, the Court made orders fixing the matter for hearing and providing the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.
The grounds of the application say “see affidavit attached to this application form” and the applicant refers in the affidavit to the decision the Tribunal made on 2 June 2015The affidavit says:
The Tribunal officer has not given due consideration to my circumstances. I feel the Tribunal officer has not given me a fair chance to review my application, so I believe MRT made an unfair decision in my application for review.
The Tribunal decision identifies that the Tribunal had formed a preliminary view that the Tribunal did not have jurisdiction in respect of the decision of the delegate made on 15 December 2014. The Tribunal referred to s.247(1)(v) and r.4.10 of the Migration Regulations 1994, identifying the period within which the application for review had to be lodged.
The applicant was informed of the preliminary view by the Tribunal that it did not have jurisdiction because the application for review was not received within the prescribed period for lodgement, which letter was sent by registered post to the applicant at his nominated residential address and the applicant replied to that letter on 6 May 2015.
The reply to that invitation identified that the applicant contended it was not his fault that he had not received the letter in relation to his student visa’s cancellation and he wanted an opportunity to put forward his side of the story as to why his student visa should not be cancelled. Relevantly, the Tribunal concluded:
6. In his response, the applicant said that he had never received the Department’s notification that his visa had been cancelled. The tribunal accepts that this is the case, as there is evidence in the Department’s file of the relevant letter was returned unclaimed to the Department. However, given that the notification was posted to the correct address in accordance with the statutory requirements, he is taken to have received it. The Tribunal finds that in accordance with r.2.55 of the Regulations, the applicant is taken to have been notified of the decision on 24 December 2014. Therefore the prescribed period within which the review application could be made ended on 7 January 2015. As the application for review was not received by the Tribunal until 2 April 2015 it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.
Pursuant to reg.2.55(3)(c) of the Migration Regulations, a cancellation notice, which is given to an applicant by a prepaid post, should be sent to “the person’s last residential address, business address or post box address known to the Minister”. It is clear that the notification matter was dispatched by registered post to the applicant’s last known address.
Pursuant to reg.2.55(7), if the Minister gives a document to a person by dispatching it by prepaid post, or by post or by other prepaid means, the person is taken to have received the document seven working days in the place of that address after the date of the document. Accordingly, the applicant is deemed to have received the cancellation on 24 December 2014, seven working days after 15 December. Section 347(1)(b) of the Migration Act 1958 provides that an application for review of a MRT reviewable decision must be given to the Tribunal within the prescribed time.
The applicant is a non-citizen who is in the migration zone, and accordingly at the time of cancellation the decision was an MRT reviewable decision within s.338(3). The prescribed period for a decision mentioned s.338(3) “starts when the applicant receives notice of the decision and ends at the end of seven working days after the date on which the notice is received”; see reg.4.10(1)(b) of the Regulations.
Section 494B of the Migration Act 1958 identifies the methods by which the Minister may give documents to a person and it is clear under subs.(4) that includes prepaid post, which I accept includes registered prepaid post as in the present case. The same position was accepted in that regard in Zhan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 327 at [45].
Section 494C(4) deals with when a person is taken to have received a document sent by prepaid post and is in substance the same as reg.2.55(7) of the Regulations. I accept the first respondent’s submission that in circumstances where the provisions of the regulations and acts have been complied by the Minister, the fact that the applicant did not actually receive the document does not give rise to any jurisdictional error by the Tribunal; see Minister for Immigration & Multicultural & Indigenous Affairs v George [2004] FCAFC 276 at [37].
Accordingly, nothing identified in the applicant’s affidavit identifies any jurisdictional error by the Tribunal, and in my opinion the Tribunal was correct in concluding that it did not have jurisdiction in the present case. The application is dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 23 October 2015