Waiomio v Minster for Home Affairs

[2019] FCCA 247

FEDERAL CIRCUIT COURT OF AUSTRALIA

WAIOMIO v MINSTER FOR HOME AFFAIRS & ANOR [2019] FCCA 247

Catchwords:

MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.3471(b)

Migration Regulations 1994 (Cth), Reg.2.55; Reg.2.55(3)(c); Reg.4.10

Applicant: OSHAE TAMATIA WAIOMIO

First Respondent:

Second Respondent:

MINSTER FOR HOME AFFAIRS

ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 625 of 2018

Judgment of: Judge Vasta

Hearing date: 31 January 2019

Date of Last Submission: 31 January 2019

Delivered at: Brisbane

Delivered on: 31 January 2019

REPRESENTATION

Solicitors for the Applicant: Samuta McComber Lawyers

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the Application filed on 25 June 2018 is dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 625 of 2018

OSHAE TAMATIA WAIOMIO

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. The Applicant, Oshae Tamatia Waiomio, is a citizen of New Zealand, who was granted a visa on 28 January 2016, upon his arrival in Australia.

2. About six months later, he was convicted, in the Brisbane Magistrates Court, of breaching bail. Then, between October 2016 and June 2017, he was charged with a number of other offences, including contraventions of domestic violence orders and possession of dangerous drugs.

3. Because of this, on 11 July 2017, the department issued the Applicant with a notice of intention to consider cancellation.  That was sent to him at the Arthur Gorrie Correctional Centre.

4. The department received information some three months later, on 26 October 2017, that the Applicant had been released from custody. He had advised the Department of Queensland Corrective Services, because he was on probation and needed to advise them of his address, that on 10 August 2017, that he was living at 37 Harbour Road, Hamilton. On 15 September 2017, he reported to DCS that he was living at 1 Poincettia Street, Kingston.  Therefore, the last known address, at that stage, was the Kingston address.

5. On 10 November 2017, the department again issued another notice of intention to consider cancellation, and that notice was sent by registered post to both the Kingston address and the Hamilton address.  On 19 November 2017, nine days later, the Applicant emailed the department in the following terms:

   To whom it may concern,

   I am writing in regards to ask for an extension on my visa cancellation application.  This letter was sent to my grandmother’s address of:

   1 Poincettia Street, Kingston 4114 QLD.

   I received this letter on Friday the 17th November, when I went around to pick my mail up.

   I need this extension please, in order to submit my paperwork for my reply to the visa cancellation request from the Ministry of Justice … Immigration. 

6. On 20 November 2017, the department refused the request for an extension of time and requested that the Applicant fill out a form, updating his contact details.  The correspondence that was sent with that refusal noted that, when a decision was made, it would be sent to the last address known by the Minister.

7. On 21 November 2017, the Applicant emailed the department requesting assistance to locate that personal particulars form to be provided with the response to the notice.  He did not advise the department of any updated contact details. 

8. On 21 November, the department received his response to the notice and that letter is reproduced in the court book at CB 29.  The address at the top of the letterhead was 1 Poincettia Street, Kingston 4114.  The Applicant had advised in that email that he was living with his girlfriend but did not provide any address for that.

9. On 22 November 2017, the notice that had been sent to the Hamilton address was returned to the Department stamped “RTS, insufficient address”. 

10. On 28 March 2018, the delegate cancelled the visa.  The decision was sent by registered post to the Kingston address.  On 30 April 2018, that decision that had been sent to the Kingston address was returned to the department stamped “RTS, unclaimed”. 

11. On 6 May 2018, the Applicant was taken into immigration detention.  On 15 May 2018, the Applicant applied to the Tribunal for a review of the delegate’s decision.  To cut a long story short, the Tribunal found that it did not have jurisdiction to review the delegate’s decision and made that decision on 14 June 2018. 

12. On 25 June 2018, the applicant made this application.  His sole ground of that application is that the Tribunal was incorrect and that they did have jurisdiction to review the matter. 

13. Now, one has to then look at the regulations pursuant to s. 3471(b) of the Migration Act 1958 (Cth) and Reg.4.10 of the Migration Regulations 1994 (Cth) (“the Regulations”). An application for review of the delegate’s decision, in this sort of matter, had to be made within seven working days after the Applicant was notified of the decision. There is no discretion in the Tribunal for any form of extension of time. The question then is, when did “seven working days after the Applicant was notified”, occur?

14. The Minister, pursuant to reg.2.55 of the Regulations “must give the document”, in this case, that said that they were cancelling his visa, to the Applicant, relevantly, by:

    (c) dating it and then despatching it:

    (i) within 3 working days (in the pace of despatch) of the date of the document; and

    (ii) by pre-paid post or by other pre-paid means;

    to the person’s last residential address, business address or post box address known to the Minister. 

15. This meant that the notice dated 28 March 2018 had to be despatched within three working days.  The evidence before me is that it was despatched on 29 March 2018.  So it was certainly within the three working days, and it was sent to the last residential address, business address or post box address known to the Minister. 

16. The person is taken to have received the document seven days after the date of the document; in effect, by the date of 5 April 2018.  Having received that by 5 April 2018, gave him seven days, which was 12 April 2018, to have lodged an application for review. 

17. In this case, the Applicant submits that the address last known by the Minister must constructively have been the 37 Harbour Street, Hamilton address.  The argument is that the department, on 10 August 2017, had given that address to the Minister and had said that it was the address of the girlfriend. 

18. In the Applicant’s email, which the department received on 21 November 2017, the Applicant said that he was living with his girlfriend, though he did not give an address.  The Applicant submits that the Minister should, by using that process of reasoning, have then assumed that he was talking about 37 Harbour Street, Hamilton. 

19. The problem with that is that the address had to be known to the Minister.  That address of 37 Harbour Street, Hamilton had been the subject of information to the Minister that it was “an insufficient address”. 

20. Therefore, the Minister, having sent correspondence to the Hamilton address and having it returned to the Minister, could not in any way feel that that was the last address known to the Minister.  In fact, the Minister had positive knowledge that it was not an address because it had already had a “return to sender” mark on it as being insufficient. 

21. However, the correspondence sent to the Kingston address had been received by the Applicant.  He even spoke about going around to that address to pick up his mail.  His letter to the department had that address on it, as well.  It was the last address that had been given to the Minister from the Department of Corrective Services. 

22. The Applicant was told that he should update his details and that notice of the decision would be sent to the last known address. 

23. The Applicant did nothing to update his details.  However one looks at the facts, it leads to one inexorable conclusion; that the last address known to the Minister was the Kingston address. 

24. Therefore, the Minister had, pursuant to reg.2.55(3)(c), to despatch that notice to that address. The Minister did so. That meant that seven days after the despatch, the Applicant is then deemed to have received it and therefore, he has seven days to apply to the Tribunal. He failed to do so.

25. The Tribunal was quite correct in finding that it had no jurisdiction to entertain the application for review. 

26. Therefore, there has been no jurisdictional error and this application is dismissed, with costs set in the sum of $5,000. 

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  14 May 2019