Thien v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1175
•8 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Thien v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1175
File number(s): SYG 873 of 2023 Judgment of: JUDGE D HUMPHREYS Date of judgment: 8 December 2023 Catchwords: MIGRATION – Administrative Appeals Tribunal – Return Resident visa (Class BB) (Subclass 155) – whether the delegate ought to have held that time had not expired because the applicant had not been sent a valid notice under s 501CA(3) of the Act Legislation: Migration Act 1958 (Cth) ss 501, 501CA,
Migration Amendment Act (Aggregate Sentences) Act 2023 (Cth)
Migration Regulations 1994 (Cth) reg 2.55
Cases cited: EFX17 v Minister for Immigration and Border Protection [2019] FCAFC 230
Horne v Minister for Immigration and Citizenship [2008] FCA 581
Minister for Immigration and Border Protection v EFX17 (2021) 271 CLR 112
Pearson v Minister for Home Affairs [2022] FCAFC 203
Public Transport Commission (NSW) v J Murray-Moore (NSW) Pty Ltd [1975] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 63 Date of last submission/s: 21 November 2023 Date of hearing: 21 November 2023 Place: Parramatta Counsel for the Applicant: Mr Liu Solicitor for the Applicant: Legal Aid Commission of NSW Counsel for the Respondent: Mr Johnson Solicitor for the Respondent: Minter Ellison Lawyers ORDERS
SYG 873 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SITHI THIEN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
8 DECEMBER 2023
THE COURT ORDERS THAT:
1.A writ of certiorari quashing the decision made on or about 21 April 2023 that the applicant’s request for the revocation of the cancellation of his visa was invalid.
2.A writ of mandamus requiring the respondent Minister to consider whether to revoke the applicant’s visa under s 501CA(4) of the Migration Act 1958 (Act).
3.The First Respondent is to pay the Applicant’s costs, fixed in the sum of $8371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
The applicant is a citizen of Myanmar. The applicant arrived in Australia in 2000. The applicant has held a valid permanent resident visa since about 2007. The most recent visa held by the applicant was a Return Resident visa (Class BB) (Subclass 155) issued on 27 May 2017.
On 17 March 2020, the applicant’s visa was cancelled under section 501(3A) of the Migration Act 1958 (Cth) (“the Act”) as the applicant had a “substantial criminal record”, having been sentenced to a term of imprisonment of 12 months or more: ss 501(6)(a) and 501(7)(c) of the Act.
After receiving representations from the applicant, a delegate of the Minister made a decision to revoke the cancellation of the applicant’s Return Resident visa on 1 October 2020.
On 17 February 2022, the applicant was convicted of further offences, namely:
(a)Drive motor vehicle during disqualification period – 2nd + offence;
(b)Possess drug manufacture apparatus make prohibited drug – T1.
The applicant was sentenced to an aggregate term of imprisonment of 18 months.
On 13 December 2022, the applicant’s Return Resident visa was again cancelled under s 501(3A) of the Act. The applicant was notified of this on 13 December 2022 by email to Bathurst Correctional Centre (where he was incarcerated) and invited to make representations to the Minister about that revocation: s 501CA(3)(b) of the Act.
The applicant was released from imprisonment on 16 December 2022 and placed into immigration detention.
On 22 December 2022, the Full Court of the Federal Court determined an aggregate sentence was not subject to mandatory cancellation under s 501(7) of the Act: Pearson v Minister for Home Affairs [2022] FCAFC 203 at [45] – [49] (“Pearson”). The applicant’s visa was reinstated, and he was released from detention.
On 17 February 2023, the applicant was notified of the validation of his visa cancellation following the Migration Amendment Act (Aggregate Sentences) Act 2023 (Cth) (“MAAS Act”) coming into effect. The notification was sent to the applicant via two means, first by registered post to an address in Sanctuary Point, Nowra and by email to a Yahoo email address.
The applicant claims that he did not receive those communications as the Sanctuary Point address was no longer the applicant’s address. Further, the applicant claims that the email address to which the communication was sent was not the most recent address that the applicant had given to the Department. As a consequence, the applicant was not aware that the cancellation of his visa had been validated by the MAAS Act. Consequently, the applicant did not make representations to the Minister before 17 March 2023.
On or about 28 or 29 March 2023, the applicant was again taken into immigration detention. This was the first time the applicant became aware that he did not hold a valid visa.
On 7 April 2023, the applicant made representations requesting revocation of the decision to cancel his visa.
On 21 April 2023, the Department advised the applicant that his request for revocation was invalid as it was not made within 28 days after the MAAS Act coming into effect, being 17 March 2023.
The applicant now seeks judicial review of the Notice of Invalid Representations.
ORDERS SOUGHT
The applicant seeks the following orders:
1)A writ of certiorari quashing the decision made on or about 21 April 2023 that the applicant’s request for revocation of the cancellation of his visa was invalid.
2)A writ of mandamus requiring the respondent Minister to consider whether to revoke the applicant’s visa under s 501CA(4) of the Act.
3) Alternatively:
a)a declaration that the respondent Minister has not performed his duties under s 501CA(3) of the Act in relation to the decision of the respondent, by his delegate, made on 13 December 2022 to cancel the applicant’s protection visa under s 501(3A) of the Act.
b)a writ of mandamus requiring the respondent Minister to perform his duties under s 501CA(3) of the Act according to law.
4) Costs.
THE EVIDENCE
The applicant relied upon an Affidavit dated 15 November 2023. The applicant confirms that on 15 December 2022, he was handed, while in NSW Corrective Services custody a letter from the Department dated 13 December 2022 being a “Notice of Visa Cancellation under Section 501(3A) of the Migration Act 1958”, this appears at Court Book pages 240-244. The letter sets out the reasons for the cancellation and invited the applicant to make representations to the Minister as to why the decision to cancel his visa should be revoked. At page 4 of that letter the following appeared:
Under regulation 2.52(2), any representations you may wish to make in relation to the revocation of the original decision must be made within 28 days after you are given this notice.
The Court is reasonably satisfied that the applicant pursuant to the notification was advised that he had 28 days from 15 December 2022 to make any such representations.
Attached to an Affidavit of Ms Jennifer Strugnell dated 17 November 2023 is a copy of a Form 929, dated 26 December 2022, being the date of the applicant’s release from immigration detention in which he advised that his residential address would be an address in Sanctuary Point, Nowra. The Court is not aware of the applicant providing any updated Form 929 contact details.
The applicant deposes that on 5 January 2023, he created an “ImmiAccount” using a new email address being a Gmail email account as compared to a previous Yahoo email address used by the applicant.
Contained at Court Book page 370 is an acknowledgement from the Department sent to the applicant at his Gmail email address, which includes the following:
An ImmiAccount associated with this email address has been updated with the following details:
•Family name
•Given name
•Title
•Address
The applicant deposes that when he logs into his ImmiAccount he can see that his address is shown as an address in Liverpool. The applicant states that “It is possible that I provided the (redacted) Liverpool address when I created the account on 5 January 2023, as I was intending even at that point to move to Sydney”.
The applicant goes onto state that around the end of January 2023, he moved to the Liverpool address. The applicant states that he updated his address with Medicare, Centrelink, Services NSW and the NSW Department of Communities and Justice. Copies of some of these documents are contained within the Court Book.
The applicant states that he was again detained by officers from the NSW Police and Immigration on 28 or 29 March 2023 after they attended the applicant’s address at Liverpool. Upon being taken to Liverpool Police Station, the applicant states that he was given a copy of a letter dated 17 February 2023 (Court Book page 249) notifying him of the validation of his visa cancellation as a result of the MAAS Act. The applicant deposes to that being the first time he became aware of the existence of that letter.
The letter is addressed to the Sanctuary Point address given by the applicant on 26 December 2022, with a copy via email to the applicant’s old Yahoo email account.
Counsel for the applicant submitted that the Court should find as a fact, that on the balance of probabilities, the applicant updated not only his email address, but also his residential address to the Liverpool address when he created the ImmiAccount in early January 2023, as it was always his intention to move to the Liverpool address. Further, no evidence has been produced by the respondent that this did not occur, this being a matter that was within their knowledge and control to prove or disprove, by producing the relevant records of the creation of the ImmiAccount, including the address provided by the applicant. It was also noted that the authorities had no trouble locating the applicant at his Liverpool address when they again detained him. This supports an inference that the applicant did indeed provide the Department with the Liverpool address on 5 January 2023 when he set up his ImmiAccount.
The Court is reasonably satisfied that the applicant did provide the Department with his new contact details, including a new email address, being a Gmail email address on 5 January 2023. The fact that the Department sent a copy of the 17 February 2023 letter to the applicant’s old email address raises a clear inference that the Department was not using the most up to date contact details and instead relied solely upon the contact details previously provided, being the Sanctuary Point address and the Yahoo email account.
Given the applicant was not cross-examined about whether he updated his residential address as at 5 January 2023 to include the Liverpool address, together with the lack of any rebuttal evidence to the claim that the applicant could have done so, leads the Court to be reasonably satisfied that the applicant did update his residential address when he created the ImmiAccount.
The information provided in that account should have been used as the contact details for the applicant, including the new email address. The clear inference, in the absence of any evidence to the contrary, is that the Department used old contact details when it sent out the 17 February 2023 letter, and the applicant did not receive it either in hard form at the Liverpool address or in electronic form at his Gmail email address, the latter being definitely known to the Department.
GROUNDS FOR JUDICIAL REVIEW
The grounds relied upon are set out in an Amended Application filed with the Court on 8 November 2023. They are as follows:
1.In deciding that the applicant’s request made on 7 April 2023, for the revocation of the cancellation of his visa was invalid, the Minister’s delegate made an error of law in holding that the request was given out of time. The delegate ought to have held that time had not expired because the applicant had not been sent a valid notice under s 501CA(3) of the Act.
2.Alternatively, in deciding that the applicant’s request made on 7 April 2023 for the revocation of the cancellation of his visa was invalid, the Minister’s delegate made an error of law in holding that the request was given out of time. The delegate ought to have held that time had not expired because the applicant had not been delivered the notice dated 17 February 2023.
3.Alternatively, in deciding that the applicant’s request made on 7 April 2023 for the revocation of the cancellation of his visa was invalid, the Minister’s delegate made an error of law in holding that the request was out of time. The delegate ought to have held reg 2.55(4) of the Migration Regulations 1994 (Cth) (the “Regulations”) required that the Minister or his Department “try to find” the applicant, whereas no steps to find the applicant were taken.
4.Alternatively, in deciding that the applicant’s request made on 7 April 2023 for the revocation of the cancellation of his visa was invalid, the Minister and/or his delegate breached the rules of procedural fairness by failing to take reasonable steps to draw the 17 February 2023 notice to the applicant’s attention.
CONSIDERATION
GROUND ONE
Ground one asserts that time had not expired in relation to the making of representations, because the cancellation notice provided the wrong date.
Section 501CA(3) of the Act required the Minister’s notice on 13 December 2022, to specify the time period in which the applicant could make representations about the revocation of the decision to cancel his visa. It says (emphasis added):
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)… invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
The importance of enabling the applicant to ascertain the correct time period under
s 501CA(3)(b) of the Act from the face of the notice was explained by the High Court in Minister for Immigration and Border Protection v EFX17 (2021) 271 CLR 112 at [41] – [42] (“EFX17”).
The applicant noted that the Minister submitted that s 501CA(3)(b) of the Act did not require the Minister to specify the date by which the representations must be made and the period during which the representations must be made may be left to the respondent to determine. These submissions can be accepted. Nonetheless, the words of s 501CA(3)(b) of the Act which requires the Minister to invite a person to make representations “within the period and in the manner ascertained in accordance with the regulations” also requires that there be sufficient information in the face of the invitation to permit the person to determine the period correctly. This conclusion is further supported by the condition upon which the Minister’s power to revoke the cancellation decision that the representations be made within the prescribed time limit. It can hardly be supposed that Parliament intended that a person who’s visa had been cancelled would not be given the information that would reveal the date by which the representations must be made if the person was to avoid the strict consequences of failing to make representations: see Public Transport Commission (NSW) v J Murray-Moore (NSW) Pty Ltd [1975] HCA 28 at [350]:
For these reasons, an invitation to make representations “within the period… ascertained in accordance with the regulations” must crystallise the period either expressly or by reference to correct objective facts from which the period can be ascertained on the face of the invitation such as “28 days from the day that you are handed this document”.
It was submitted that in the current case, the first notice received by the applicant on 15 December 2022, was such that the 28 day period allowed for representations expired on 12 January 2023. However, the MAAS Act had the effect that the applicant could make representations until 17 March 2023 (Item 5 of Schedule 2).
Thus, the first notice did not comply with the requirements of s 501CA(3)(b) of the Act as explained by the High Court in EFX17.
It was submitted that the sending of the second notice letter did not cure the defect in the first notice. Further, the second notice was not itself a valid notice as it did not comply with s 501CA of the Act because it did not provide particulars of the “relevant information”. The defect in the second notice arose from the operation of Item 5 of Schedule 2 which varied the time for representations to be made.
Thus, neither the first nor the second notice were valid under s 501CA(3) of the Act. The consequence is that the 28 day period has not commenced, and the applicant’s representations were not out of time when sent on 7 April 2023. Alternatively, if time for the applicant to make representations had not commenced, the Minister should be ordered to issue a proper notice under s 501CA(3) of the Act, as was done by the full Federal Court in EFX17 v Minister for Immigration and Border Protection [2019] FCAFC 230.
Finally, the observation by the High Court in EFX17 at [41] reflects the well-established principle that the Minister’s strict compliance with notification requirements is important and seriously considered in the court’s contemplation of the statutory scheme given the significance of the consequences. Even though the MAAS Act is silent on notifications, it cannot be submitted that the MAAS Act does away with the requirements for clear communication of the applicable time period as extended by the MAAS Act or otherwise.
Despite the MAAS Act’s silence on notifications, the relevant provisions, particularly where there was retrospective action, should all be construed in a way that ensures that the applicant is actually put on notice of his need to make representations.
On behalf the Minister, it was submitted there is no complaint that the cancellation notice was deficient in any respect by reference to s 501CA(3) of the Act. Nonetheless, it may be accepted, as the applicant submits, that the delivery of the judgement in Pearson (which brought about the reinstatement of the applicant’s visa) and the passage of the MAAS Act (which had the effect of re-enlivening the cancellation of the applicant’s visa) intervened to affect the applicant’s rights under the Act to seek revocation of the visa cancellation. However, Parliament made express provisions in the MAAS Act. This was contained in Clause 5 to the Schedule to the MAAS Act which provided:
5. Effect of validation on review and appeal rights
Taking action after commencement where no action taken before commencement
(1) If:
(a) one or more provisions of the Migration Act 1958 or the Migration Regulations 1994 have the effect that a person is able to take any of the following actions in relation to a validated decision only during a particular period (the original period):
(i) making representations about the revocation of the decision;
(ii) applying for the revocation or review of the decision;
(iii) bringing an appeal against the decision;
(iv) applying to a court for a remedy in relation to the decision;
(v) taking any other action for the purpose of having a decision varied, revoked, quashed or set aside; and
(b) the original period started before the commencement and did not in before 22 December 2022; and
(c) the person did not take the action before commencement;
then the person may take the action on or after the commencement as if the period for taking the action:
(d) started on commencement; and
(e) where the same length as the original period.
Note: 22 December 2022 is the day the Full Court of the Federal Court of Australia gave judgement in Pearson v Minister for Home Affairs [2022] FCAFC 203.
It was submitted that it was therefore unnecessary for the Minister to “re-comply” with s 501CA(3) of the Act. No such requirement was imposed by the MAAS Act. To the contrary, the MAAS Act, and clause 5 in particular, proceeds on the assumption that a written notice and an invitation under s 501CA(3) of the Act has been given. So it was here.
Firstly, for the reasons set out above, the Court is satisfied that the first notice was validly served on the applicant while in NSW Corrective Services custody. The notice (Court Book page 251) clearly states that the applicant has 28 days from the date the letter was handed to him to make representations, with that date being capable of being ascertained as being 28 days from 15 December 2022. The Court is satisfied that the first letter is not and was not defective as at the date it was given to the applicant. It clearly sets out the material relied upon by the Minister as the grounds for cancelling the applicant’s visa. It invited the applicant to make submissions as to why the cancellation should not be revoked and gave a clear time frame for those representations to be made.
The Court is not satisfied that subsequent events of either Pearson or the MAAS Act had the effect of rendering the first notice defective. It stands on its own as at the time it was issued.
The combined effect of Pearson and the MAAS Act rendered the first notice otiose. It required further action by the Department and in effect the issuance of a second notice and invitation to make representations. The second notice in the Court’s view needs to be looked at independently however, as to whether it meets the strict requirements of s 501CA of the Act. It should not be read with the first notice.
The letter sets out the history of the effect of Pearson and the impact of the MAAS Act. It goes on to state as follows:
The effect of the Aggregate Sentences Act is that the Mandatory Cancellation of your visa that occurred on 13 December 2022 remains valid and you do not hold a valid visa to remain in Australia.
The Aggregate Sentences Act contains provisions to restore a person’s right to seek review, or seek revocation of the cancellation decision if they had not done so before the Pearson decision was made, provided they were still within the relevant timeframes to do so.
…
The Aggregate Sentences Act provides that you have 28 days from the day the Act came into effect to make representations in support of your revocation. As such, any representations you may wish to make in relation to the revocation of the original decision must be made by 17 March 2023.
First, the Court is satisfied that the second notice provided a clear period within which any representations needed to be made. That part of the notice meets the requirements of s 501CA(3)(b) of the Act. What it does not do however, is set out again the original decision and the particulars of the relevant information relied upon to make that decision (s 501CA(3)(a) of the Act).
In the Court’s view, given the first notice was rendered otiose, strict compliance with s 501CA of the Act was required in any second notice, including compliance with s 501CA(3)(a) of the Act. As this did not occur, time for any representations did not commence as the second notice is invalid. Ground one has merit.
Given the complexity of the matters under consideration while not strictly necessary, it is appropriate to consider the remaining grounds of judicial review.
GROUND TWO
This is a claim that the second notice should not be taken as having been delivered to the applicant as it was sent by mail to the Sanctuary Point address. It is claimed that the applicant did not give that address to the Department and was thus, not his last known residential address. Further, the applicant gave the Department a more up to date email address, being a Gmail email address in January 2023.
In late January 2023, the applicant returned to live with a friend in Liverpool. The applicant contends that the Commonwealth were aware of the Liverpool address, including a Certificate from Centrelink dated 4 February 2023. The fact that Centrelink or Medicare may have been aware of the Liverpool address is in the Court’s view irrelevant. The applicant was required to keep the Department advised of his current contact details.
The Minister contends based on the Affidavit of Ms Strugnell, that the applicant advised of the Sanctuary Point address in a Change of Contact Form 929, dated 26 December 2022. It was submitted that the fact that a notification may have been sent to an out of date email address is irrelevant, so long as one form of notification, in this case a letter sent by mail, was sent to the correct address as known to the Minister.
This submission overlooks the fact that the applicant had provide up to date contact details to the Department when he created his “ImmiAccount”, in early January 2023. This included his Gmail email address. For reasons unknown to the Court, this email address was not used, rather an old Yahoo email address was used to send an email copy of the second notice.
For the reasons set out above in the factual findings, the Court is not satisfied that the letter was sent to the last known address of the applicant, being his Liverpool address. Rather, it was sent to an out of date address and was not received or deemed received by the applicant.
Ground two has merit, even if the Court is wrong in relation to Ground one.
GROUND THREE
Ground three is a claim that pursuant to reg 2.55(4) of the Regulations imposed a duty on the Minister to “try to find” the applicant. It states as follows:
(4) Subject to sub-regulation (4A), for a document mentioned in (1)(ab) or (b):
(a) if the person has held the visa for less than 1 year when the document is to be given, the Minister must give the document in one of the ways mentioned in subregulation (3); and
(b) if the person has held the visa for at least 1 year when the document is to be given:
(i) Immigration must try to find the person; and
(ii) the Minister must give the document in one of the ways mentioned in subregulation (3).
It was submitted that the applicant held his visa for more than one year and therefore the Minister needed to “try to find” the applicant and clearly did not do so. The applicant claimed that he had updated his details with the Department, with Medicare and with the NSW Government. It was submitted that some effort needed to be applied to notifying the applicant about the reinstatement of the cancellation of his visa.
The Court does not accept this submission. In the Court’s view this requirement only applies when the contact details of the applicant are unknown to the Department. In this case they were known, however the wrong details were used.
Ground three has no merit.
GROUND FOUR
Ground four is an allegation of a lack of procedural fairness in that it should be understood that Parliament must have intended by the MAAS Act, to require the Department to actually (emphasis added) notify persons affected of the impact of the MAAS Act on them. The failure of the Department to do so amounts to a breach of procedural fairness: Horne v Minister for Immigration and Citizenship [2008] FCA 581 at [52] – [67] (“Horne”).
On behalf of the Minister, it was submitted that in Horne, the Minister was only required to take reasonable steps to notify the applicant of the cancellation process. This is what occurred by writing to the applicant when he was in custody.
The Court agrees with this submission. The Department took steps to notify the applicant. However, it subsequently used an incorrect address in the second notice. There is no requirement for the Department to actually notify the applicant, provided they use the correct contact details.
Ground four has no merit.
DISPOSITION
As Grounds one and two have merit, the Court will hear from the parties as to which set of alternative orders contained within the Originating Application the Court should make as well as to the issue of costs.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 11 December 2023
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