Walker and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 31
•14 January 2020
Walker and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 31 (14 January 2020)
Division:GENERAL DIVISION
File Number(s): 2019/8639
Re:Peter Walker
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date of decision: 14 January 2020
Date of written reasons: 16 January 2020
Place:Melbourne
The Tribunal decides it does not have jurisdiction to consider Mr Walker’s application and dismisses it under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).
......[sgd]..................................................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
PRACTICE AND PROCEDURE – jurisdiction – migration – mandatory visa cancellation –nine day time limit – whether notice complied with s 501G(1) of the Migration Act and given in prescribed manner – whether application for review lodged within time – notice complied with and was given in accordance with s 501G – application not lodged within time – no discretion to extend time to lodge review application – no jurisdiction – application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
CASES
BMY18 Minister for Home Affairs [2019] FCAFC 189
DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64
DPP v Walker[2015] VCC 160
Maroun v Minister for Immigration and Citizenship (2009) 112 ALD 424
MZZDJ vMinister for Immigration and Border Protection [2017] FCAFC 156
Pathania v Minister for Immigration and Border Protection [2015] FCA 1262
Pomare v Minister for Immigration and Citizenship[2008] FCA 458; 167 FCR 494
SZVRO v Minister for Immigration and Border Protection [2017] FCA 421
Wilson v Minister for Immigration and Citizenship[2012] FCA 1421
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
16 January 2020
INTRODUCTION
The applicant, Mr Peter Walker, has applied for review of a decision by a delegate of the Minister for Home Affairs, made under s 501CA(4) of the Migration Act 1958 (“the Act”), not to revoke the mandatory cancellation of his Class BB Subclass 155 (Five Year Resident Return) visa. Mr Walker’s application was lodged approximately nine-months after the date on the letter purporting to notify him of the delegate’s decision.
The parties provided written submissions prior to the hearing, which was held by telephone on 14 January 2020. The applicant was represented by Mr Robinson of AR Law Services. The respondent was represented by Ms Nyabally of the Australian Government Solicitor.
At the conclusion of the hearing I decided that the Tribunal does not have jurisdiction to consider Mr Walker’s application and dismissed it under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”). By email on 14 January 2020, AR Law Services asked the Tribunal furnish written reasons for its decision. These are the reasons requested, consistent with the requirements of s 43(2B) of the AAT Act.
BACKGROUND
Mr Walker is a citizen of the United Kingdom. He arrived in Australia in December 1949 at the age of eight under the Commonwealth Child Migration Scheme,[1] and has resided in Australia for approximately 70 years.
[1] Bundle of Relevant Documents dated 9 January 2020 (Exhibit R1), 124.
Mr Walker’s criminal history dates back to the late 1950s and includes two convictions for manslaughter in March and July 1966.[2] The March 1996 conviction arose from offending after Mr Walker’s escaped from Pentridge Prison with fellow inmate Ronald Ryan. Prison Officer George Hodson was shot and killed by Ryan, who was subsequently sentenced to death. The court sentenced Mr Walker to 12 years imprisonment for his involvement in the Hodson murder. The July 1966 manslaughter conviction related to Mr Walker killing an unarmed victim by shooting him in the back of the head,[3] for which he received a further sentence of 12 years imprisonment.
[2] Ibid, 29-31.
[3] Ibid, 73-75.
Mr Walker was convicted in April 2002 for cultivating cannabis and theft, resulting in a sentence of three years imprisonment.[4] His most recent convictions were in February 2016, at the age of 74, for trafficking methylamphetamine, possession of weapons and dishonesty offences.[5] He received an ‘effective global total effective sentence’ of seven years and two months imprisonment, with a non-parole period of four years and four months.[6] Mr Walker remains imprisoned to the present day.
[4] Ibid, 76-86.
[5] DPP v Walker [2015] VCC 160.
[6] Exhibit R1, 62 [150].
On 21 September 2017 Mr Walker was notified of a decision to cancel his visa under s 501(3A) of the Act[7] and acknowledged receipt of that notification.[8] He was invited to make representations to have the visa cancellation decision revoked and did so on 18 October 2017.[9] The Department acknowledged Mr Walker’s representations on 19 October 2017.[10]
[7] Ibid, 90-94.
[8] Ibid, 106.
[9] Ibid, 107-150.
[10] Ibid, 104.
Mr Walker appointed Ms Danielle Heable of Havas & Dib Lawyers as his authorised recipient with effect 16 October 2017.[11] In a form provided to the Department, Ms Heable nominated a fax number and an email address ([email protected]), agreeing that the Department could communicate with her ‘by fax, email or other electronic means.’[12] The Department sent a letter to Ms Heable at that email address on 11 December 2017.[13]
[11] Ibid, 220-222.
[12] Ibid.
[13] Ibid, 97-98.
On 30 August 2018 Ms Heable initiated contact with the Department seeking an update on ‘the status of Mr Walker’s matters (sic),[14] but used a different email address: [email protected]. The Department replied to that email address on 31 August 2018,[15] and further correspondence regarding Mr Walker was sent to the same email address on 7 November 2018[16] and 4 March 2019.[17]
[14] Ibid, 256-257.
[15] Ibid, 256.
[16] Ibid, 99-100.
[17] Ibid, 101-103.
On 29 March 2019, after considering Mr Walker’s representations, another delegate of the Minister decided not to revoke the visa cancellation decision.[18] An email containing the notification letter and a number of attachments (“the notice”) was sent to Ms Heable on 1 April 2019 at 10.35 am to the [email protected] email address.[19]
[18] Ibid, 15.
[19] Ibid, 258-265.
On 11 September 2019 the Offender Management Supervisor at Loddon Prison and Middleton wrote to the Department, advising that Mr Walker had ‘recently changed caseworkers’ and had told his caseworker he was unaware of the outcome of his review application.[20] The Department responded the following day, advising that because a lawyer was acting for Mr Walker at the time of the notice, that lawyer was responsible for informing him of the outcome.[21] A ‘courtesy copy’ of the notice was nevertheless attached to the Department’s response.
[20] Ibid, 267.
[21] Ibid, 266.
Mr Walker’s review application was received by the Tribunal on 27 December 2019, in which it is stated on his behalf:
‘…this case turns on lack of proper notice - ineffective and unsuccessful notice, that is the applicant did not receive any "notice", consequently he has standing to apply before the AAT for review.
The putative document that is erroneously headed “decision” is dated 1 April 2019.
…
The document of the 1 April 2019 was of no effect, consequently the client was not given an opportunity to argue his case.’
LEGISLATIVE FRAMEWORK
The general rule under the AAT Act is that applications for review must be made within 28 days of a person receiving a decision (s 29(2)(a)). But ss 25(1) & (3) of the AAT Act enable the Tribunal’s review jurisdiction to be varied by the enactment under which a reviewable decision is made. For example, the Migration Act provides at s 500(6B):
‘If a decision under section 501 of this Act, or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa, relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1). Accordingly, paragraph 29(1)(d) and subsections 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 do not apply to the application.’ (Emphasis added)
Section 494B of the Act is concerned with the methods by which the Minister gives documents to a person receiving a decision under the Act. Section 494B(5)(d) provides that one of the methods to transmit documents is via email to the last email address ‘provided to the Minister for the purposes of receiving documents…’
Section 494D of the Act relates to authorised recipients:
‘Authorised recipient
(1) If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to receive documents in connection with specified matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents in connection with those matters that the Minister would otherwise have given to the first person.
Note: If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.
(2) If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. However, this does not prevent the Minister giving the first person a copy of the document.’
Section 501G of the Act requires that for decisions made under s 501CA:
‘(1) …
the Minister must give the person a written notice that:
(c) sets out the decision; and
(d) specifies the provision under which the decision was made and sets out the effect of that provision; and
(e) sets out the reasons (other than non-disclosable information) for the decision; and
(f) if the decision was made by a delegate of the Minister under…section 501CA and the person has the right to have the decision reviewed by the Administrative Appeals Tribunal:
(i)states that the decision can be reviewed by the Tribunal; and
(ii)states the time in which the application for review may be made; and
(iii)states who can apply to have the decision reviewed; and
(iv)states where the application for review can be made; and
(v)in a case where the decision relates to a person in the migration zone—sets out the effect of subsections 500(6A) to (6L) (inclusive); and
(vi)sets out such additional information (if any) as is prescribed.
Section 501G(3) of the Act requires that the notice ‘must be given in the prescribed manner.’ The word ‘prescribed’ is defined to mean ‘prescribed by the regulations’ (s 5 of the Act). Division 2.10 of Part 2 of the Migration Regulations 1994 (Cth) (“Regulations”) relates to the giving of documents relating to visa cancellation, including in circumstances where a decision is made not to revoke the cancellation of a visa. Consistent with s 495B(5)(d) of the Act, reg 2.55(3) enables the Minister to convey the notice:
…
(d) by transmitting the document by:
(i) fax; or
(ii) email; or
(iii) other electronic means;
to the last fax number, email address or other electronic address known to the Minister.
…
Section 494C of the Act is concerned with when a person is taken to have received a document from the Minister. Section 494C(5) of the Act and reg 2.55(8) relevantly provide that in the case of transmission by email, ‘the person is taken to have received the document at the end of the day on which the document is transmitted.’
Consistent with s 494C(7) of the Act, reg 2.55(9) provides:
‘(9) If:
(a) the Minister purports to give a document to a person by a method specified in this regulation but makes an error in doing so; and
(b) the person nonetheless receives the document or a copy of the document;
the Minister is taken to have given the document to the person and the person is taken to have received the document:
(c) at the time specified by this regulation for that method; or
(d) if the person can show that he or she received the document at a later time-at that later time.’
Under s 501G(4) of the Act, even if the notice is not sent to a recipient in conformance with s 501G(1), that does not affect the validity of the decision. The effect of such a failure, however, may impact the time within which a recipient is required to lodge their application for review. The date of notification is relevant because it determines the applicable time limit for making a review application to the Tribunal. If Mr Walker was not notified of the decision in accordance with s 501G(1), time does not begin to run until the notification is properly effected, and he is therefore not limited to the nine day requirement under s 500(6B) of the Act. As Lindgren J held in Pomare v Minister for Immigration and Citizenship [2008] FCA 458 (“Pomare”) at [31]:
‘In Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1292, Gray J, after referring to Zhan, held (at [53]) that where any of the requirements of s 66(2) of the Act were not complied with, there was no “notification” with the result that time did not begin to run in respect of an application to the Migration Review Tribunal. The same reasoning must apply to a non-compliance with paras 501G(1)(c)-(f).’
In Wilson v Minister for Immigration and Citizenship [2012] FCA 1421, Edmonds J, referred to Pomare in holding at [22]:
‘Finally, where any of the requirements of a written notice under s 501G(1)(c) to (f) are not complied with, there will be no “notification” with the result that time will not begin to run in respect of an application to the Tribunal under s 500(6B)...’
ISSUE TO BE RESOLVED
The Tribunal’s jurisdiction to consider Mr Walker’s application turns on whether he was notified of the delegate’s non-revocation decision in accordance with s 501G of the Act. If he was, then the nine day time limit imposed by s 500(6B) of the Act applied, Mr Walker failed to lodge his application in time, and the Tribunal has no jurisdiction. But if Mr Walker was not notified of the non-revocation decision in accordance with s 501G, then the nine day time limit did not begin to run at the end of 1 April 2019, the Tribunal must consider when Mr Walker was taken to have been given the notice, and what time he then had to lodge his review application.
EVIDENCE BEFORE THE TRIBUNAL
A bundle of relevant documents numbering 274 pages were taken into evidence. The Tribunal also received written submissions from Mr Robinson on behalf of the applicant dated 10 January 2020, and from Ms Nyabally on behalf of the respondent dated 9 January 2020.
SUBMISSIONS OF THE PARTIES
Mr Robinson’s written submissions on behalf of the applicant follow (errors in original):
‘APPLICANT’S SUBMISSIONS ON JURISDICTION
PART I INTRODUCTION
1. This is a purported application for review a decision made by a delegate (the delegate) of the Minister for Home Affairs (the Minister), dated 29 March 2019, not to revoke the mandatory cancellation of the applicant’s Class BB Subclass 155 Five Year Resident Return visa (the visa).
2. For the reasons that follow, the Applicant submits that the Tribunal has jurisdiction to review the decision given the document date 1 April was a nullity given it failed to give “notice”.
PART II CONTENTIONS
Fails to comply with s 501G
3. The notification requirements for decisions under s 501CA of the Migration Act 1958 (the Act) are contained in s 501G of the Act. Subsection 501(1) sets out the information that must be conveyed to the applicant by written notice, and s 501(2)(c) sets out the additional documents that must be provided with the written notice to the applicant.
4. The Applicant submits that the notification letter fails to complied with those requirements and was therefore invalid.
Validity of notification letter
5. In his 10 December 2019 email to the Department, the applicant’s new representative submitted that the 1 April 2019 notice was ‘deficient’. His representative states as follows:
6. As the jurisprudence makes clear DFQ17 v MIBP [2019] FCAFC 64 [DFQ17] and BMY18 v MHA [2019] FCAFC 189 [BMY18]:
If the notification of the decision does not convey information about the right of review in a clear and complete manner it will be defective.
This includes notification where the information about when the applicant is taken to have received the notification is separated from the information about the prescribed time period or is under an incorrect heading.
7. Further it is submitted that the putative “notice” or lack of is supported by the case DVQ17 v MIBP [2019] FCAFC 64 and BMY18 V MHA [2019] FCAFC 189
PART 4 CONCLUSION
8. The Applicant submits that the applicant was not validly notified of the delegate’s decision on 1 April 2019. Consequently, it follows that the application of 27 December 2019 application needs not be within the 9 day timeframe provided for in s 500(6B) of the Act, and therefor Tribunal has jurisdiction to consider the application.
9. Accordingly, the Applicant submits that the Tribunal should allow the application and proceed to review the decision pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975.’
Ms Nyabally’s written submissions are to the effect that the notice complied with the requirements of s 501G of the Act, and was validly notified in a manner prescribed by s 494B of the Act, namely transmission by email to Mr Walker’s authorised representative. Consequently, it is submitted the Tribunal has no jurisdiction to consider the application and should dismiss it without proceeding to review.
Questions were put to Mr Robinson at the commencement of the hearing to clarify some of his submissions and help narrow the issues in dispute. A summary follows:
(a)Mr Robinson confirmed that AR Law informed the Department by email on 11 December 2019 that they were acting for Mr Walker;[22]
(b)When asked when Ms Heable formally ceased to act for Mr Walker as his authorised recipient, Mr Robinson stated he had ‘no instructions’ on this issue;
(c)When asked if there was any evidence that would have caused the Department to send the notice to someone other than Ms Heable, between her appointment as authorised representative in October 2017 and AR Law’s advice to the Department on 11 December 2019 that they were acting for Mr Walker, Mr Robinson agreed there was none;
(d)When asked if he knew why the Offender Management Supervisor at Loddon Prison made enquiries to the Department on 1 September 2019 about the status of Mr Walker’s revocation request instead of AR Legal, who had been representing Mr Walker since July 2019, Mr Robinson stated he had no instructions on this;
(e)Mr Robinson did not dispute that Ms Heable received the notice on 1 April 2019. He submitted, however, that this case was ‘not about who got the document or carriage,’ but that the notice ‘doesn’t facilitate the appeals process.’ Mr Robinson contended the defective nature of the notice centred on its non-compliance with s501G(1) of the Act. When taken through each of the requirements of that provision, Mr Robinson agreed the notice complied with ss 501G(1)(c) – (e) and s 501G(v) – (vi) of the Act. He contended it was only s 501G(1)(f)(iv) that was ‘the problem,’ because the notice did not clearly state where a review application could be made and there was ‘nothing’ in the notice that ‘directs the mind to the appeal of the revocation;’
(f)When asked to elaborate on his reliance on two authorities: DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 (“DFQ17”); and BMY18 Minister for Home Affairs [2019] FCAFC 189 (“BMY18”), Mr Robinson said the notice in BMY18 was held to be deficient because it referred to the appeal process ‘in a general sense’ and did not ‘actually articulate…the process of how to appeal.’ He described the notice to Mr Walker as unclear and comprising ‘general motherhood statements,’ including because the enclosure about merits review referred ‘to the AAT rather than the Administrative Appeals Tribunal.’ He referred to the court’s reasoning in BMY18 as requiring a ‘common sense approach,’ with ‘plain language’ to be used in such notices. He submitted the notice should be written as if the recipient was unrepresented, and had to be ‘adequately communicated,’ particularly if the recipient is a ‘foreign national;’ and
(g)When it was put to Mr Robinson that the circumstances in DFQ17 and BMY18 could be distinguished from Mr Walker’s case, including because Mr Walker was legally represented at the time of receiving the notice, Mr Walker stated: ‘I’m not sure whether Dib Legal were in contact with him.’ When it was put to Mr Robinson he had earlier advised that Mr Walker ‘had a solicitor’ and did not dispute that solicitor had received the 1 April 2019 notice, Mr Robinson said: ‘I’m not sure whether he got the letter then or only when we got the documents from the Minister.’ Mr Robinson did not submit an alternate specific date on which Mr Walker may have received the notice.
CONSIDERATION
[22] Ibid, 268-271.
Did the contents of the notice comply with s 501G(1) of the Act?
The notice dated 1 April 2019 is addressed to:
‘Mr Peter John Walker
…Middletown (sic) Prison Locked Bag
3 CASTLEMAINE VIC 3450’In the top right corner of the first page of the notice it states: ‘By Email: [email protected].’ The notice included a copy of the reasons for decision,[23] stating it had been made ‘under s 501CA(4) of the Migration Act, not to revoke the original decision’ (Emphasis in original).[24] Under the heading ‘Review Rights’ on page 1, the notice advised Mr Walker in the following terms that he was entitled to have the decision reviewed by the Tribunal:[25]
[23] Ibid, 16-31.
[24] Ibid, 259.
[25] Ibid, 259.
‘Review Rights
As the decision not to revoke the original decision was made by a delegate of the Minister, you are entitled to have that decision reviewed by the Administrative Appeals Tribunal.
If you wish to have the decision reviewed, you must lodge your application for review within nine (9) days after the day on which you are taken to be notified of the decision. If you have an authorised recipient who is authorised to receive documents relating to the revocation of the original decision on your behalf, you are taken to be notified when your authorised recipient is taken to be notified of the decision.
As the original of this letter was sent to your authorised recipient by email, your authorised recipient is – and therefore you are – taken to have received it at the end of the day it was transmitted.
Enclosed is an information sheet about ‘How to Apply for Merits Review by the AAT, together with two copies of:
·the decision record (Statement of Reasons) that sets out the reasons for the decision (other than non-disclosable information, if any); and
·each source document (“Attachment”) considered by the decision maker (other than documents containing non-disclosable information, if any).
Enclosed is also some further information about the effect of s500(6A) to s500(6L) of the Migration Act, which the Department is required by law to provide to you.
…
Contacting the processing officer
My contact details are in the footer at the end of the first page if you have any questions about this notice. You can also contact the Department on 1300…’
(Emphasis in original)
The notice is signed above a signature block containing the Case Officer’s first name and position number within the National Character Consideration Centre. The enclosures listed on page 2 are:
(a)Decision Record dated 29 March 2019;
(b)Statement of Reasons dated 29 March 2019;
(c)Table of Attachments followed by the listed attachments;
(d)Information sheet about how to apply for merits review to the Tribunal; and
(e)Further information regarding the effect of ss 500(6A) to 500(6L) of the Act.
It is noteworthy that the information advising Mr Walker of his appeal rights, the nine-day time limit for doing so, when he was taken to have received the notice, and the method for lodging an application, was grouped in one area under a single heading in the letter. The information sheet referred to in the letter was appended as an enclosure, which set out options for lodging a review application to the Tribunal. This was either by an online application, filling out an application form, writing a letter, or sending an email. The information sheet stated that any application must be accompanied by a copy or the original of the documents provided to the person at the time they were notified of the decision, failing which the application for review will be invalid.
A website address was provided for the Tribunal in the enclosure, as were telephone and facsimile numbers, physical and postal addresses for each of the Tribunal’s offices in each state, territory and Norfolk Island. A national toll free telephone number and a telephone contact number for the Translating and Interpreting Service were also listed.
The reference to ‘Middletown’ (sic) in the address block of the notice is clearly a spelling error and should read ‘Middleton,’ which is a restricted-minimum security facility within the Loddon Prison precinct near Castlemaine Victoria. The Tribunal does not consider, however, that such an error prevented the notice from complying with the statute, even if the intended ‘prescribed manner’ of giving the notice to Mr Walker was via prepaid post or other prepaid means to the last residential address for him known to the Minister. That is because the Locked Bag 3 Castlemaine Victoria 3450 component of the address is correct. More importantly, however, the ‘prescribed manner’ of communicating the notice to Mr Walker, was not by pre-paid post but via email to Mr Walker’s lawyer and authorised representative, who he had appointed some five months earlier.[26]
[26] Ibid, 222.
Mr Robinson stated in his written submissions:
‘Subsection 501(1) (sic) sets out the information that must be conveyed to the applicant by written notice, and s 501(2)(c) (sic) sets out the additional documents that must be provided with the written notice to the applicant.’
Mr Robinson’s references to ss 501(1) and 501(2)(c) of the Act are erroneous and the Tribunal has proceeded on the basis these instead refer to ss 501G(1) and 501G(2)(c) of the Act. That being said, there is no explanation why the notice to Mr Walker failed to comply with s 501G(1), just that it ‘fails to complied (sic) with those requirements and was therefore invalid.’ During the hearing, however, Mr Robinson explained it was the notice’s compliance with s 501G(1)(f)(iv) of the Act that was ‘the problem,’ because it did not clearly state where a review application could be made.
Mr Robinson’s reference at paragraph 3 of his written submissions to s 501G(2)(c) of the Act does not relate to ‘additional documents that must be provided with the written notice to the applicant’ as he contends, but whether a decision not to revoke a visa cancellation was taken in respect of a person in the migration zone. There is no evidence to disturb the fact Mr Walker was ‘in the migration zone’ at all relevant times. It follows that s 500(6B) of the Act has the effect of disempowering any discretion the Tribunal may have had to extend the time in which an application for review can be lodged. In those circumstances the nine day time limit must be strictly applied.
Mr Robinson’s reliance on DFQ17 and BMY18 as relevant to the present matter is unpersuasive. Neither authority contains the excerpt found at paragraph 6 of Mr Robinson’s written submissions. Several distinguishing features are also apparent between the two authorities, which caused the Court in BMY18 to state at [35]: ‘Consequently, DFQ17 does not directly control this case.’ It is clear these authorities turn on their own facts and can be distinguished from Mr Walker’s matter for reasons including:
(a)DFQ17 relates to a notice sent by pre-paid post directly to the Appellant’s post office box, whereas the notice in BMY18 was sent to the Appellant by email. Neither Appellant had appointed a lawyer or migration agent as their authorised representative. By contrast, Mr Walker had an authorised representative to whom the notice was sent;
(b)The ratio decidendi in DFQ17 (per Perram J at [58]) related to the time within which an application for review can be made, requiring the notice to ‘set out the information in each of the subsections in a way which is not only complete…but clear as well.’ His Honour concluded at [62] that the notice in that case ‘failed to convey clearly the information’ and ‘was piecemeal, entirely obscure and essentially incomprehensible.’ It was the fragmented nature of the advice within the notice, ‘comprising three separate pieces of information across three pages under different headings,’ which was found to be deficient. In BMY18 the Court found there was no mention in the ‘Review Rights’ section about when the Appellant had been notified of the decision, which instead appeared in a separate section titled ‘Financial or case worker assistance.’ These circumstances are not repeated in the notice to Mr Walker, which contains the information about his review rights, the nine day timeframe, and when he was taken to have received the notice via his authorised recipient, all grouped under the heading ‘Review Rights,’ with further information in enclosures;
(c)Neither DFQ17 nor BMY18 support the proposition that any notice is defective if information about review rights and deemed receipt is not grouped together, or is elaborated upon in enclosures. As BMY18 makes clear at [41]:
‘The notification must be considered and the question asked whether it clearly stated when the review application had to be made. There is no one size fits all approach to this but it is a common sense question.’
The Tribunal does not accept that DFQ17 and BMY18 are sufficiently apposite to Mr Walker’s circumstances. Nor does the Tribunal accept Mr Robinson’s submission that the notice failed to clearly state where the review application could be made, or that confusion arose because the enclosure about applying for merits review referred to the ‘AAT’ rather than the ‘Administrative Appeals Tribunal.’ That is because the abbreviation ‘AAT’ in the enclosure follows the name of the Tribunal in full – both in the enclosure title and the first paragraph. Moreover, Mr Walker’s authorised representative, who was both a lawyer and a migration agent, would have been well placed to address any uncertainty regarding where a review application could be made or what the abbreviation ‘AAT’ meant.
The Tribunal is satisfied that the notice to Mr Walker was sufficiently clear and compliant with s 501G of the Act, particularly in circumstances where he was legally represented. Even if he were not, the Tribunal does not consider the deficiencies identified in DFQ17 or BMY18 are repeated in the notice given to Mr Walker.
Was the notice given to Mr Walker in compliance with s 501G(3) of the Act?
Section 501G(3) of the Act requires that the notice ‘must be given in the prescribed manner,’ which is at the respondent’s discretion. In Pathania v Minister for Immigration and Border Protection [2015] FCA 1262, Gilmour J held at [18]:
‘…The Minister was required under s 494B to discharge that obligation by one of several methods. The choice as to which method was a matter for the Minister...Once a choice was made as to which method of notification was to be used, the Minister was required to comply strictly with the statutory provisions relating to that method.’
The method selected by the Minister to convey the notice was via email to Mr Walker’s authorised representative pursuant to s 494D of the Act. A question arises, however, regarding the different email addresses Ms Heable used in October 2017 ([email protected]), compared to 2018 ([email protected]).[27]
[27] Ibid, 256-257.
In MZZDJ vMinister for Immigration and Border Protection [2017] FCAFC 156 (“MZZDJ”) the Full Court held at [24] that notifying the Department about an authorised representative only required written notice about the name and address of that representative and was not reliant on the use of any particular form of communication:
‘All that s 494D(1) requires is written notice of the name and “address” of the person who is to be the authorised recipient. The provision does not require use of any particular form. By s 495 of the Act the Minister is given a discretionary power to approve forms, but that power is expressly limited to other provisions of the Act where the term “approved form” is used. Section 494D(1) is not such a provision.’
In effect, a notice must be given in a ‘prescribed manner’ pursuant to s 501G(3) of the Act, but it is for the Minister to decide which method provided for at s 494B is used. One of the allowable methods is by email to the last email address provided for the purposes of receiving document (s 494B(5)(d)). In SZVRO v Minister for Immigration and Border Protection [2017] FCA 421 (“SZVRO”) at [49] and [57], Beach J held that ‘whether an address has been provided for the purpose of receiving documents is to be determined objectively.’ In DFQ17, Rares J held at [14]:
‘The ordinary and natural meaning of “for the purposes of receiving documents”…is the subjective purpose of the recipient communicated to the Minister that he or she wants documents to be served at the given address.’
In the absence of evidence to the contrary, Ms Heable’s August 2018 email correspondence can objectively be considered ‘the last…email address…for the purposes of receiving documents (s 494B(5)(d))’ She used that email address in 2018 to make enquiries about the progress of Mr Walker’s application. In any event, not much turns on the different email addresses used by Ms Heable, because as held in SZVRO at [46], an ‘address can change over time, for example because the previous address provided may have been superseded.’ The Tribunal notes in this regard that the signature block in Ms Heable’s August 2018 email reflects an organisational change at the law firm she worked at, evidenced by removal of ‘Havas’ from the name of her employer, which had become ‘Dib & Associates Lawyers.’ Consistent with the reasoning in SZVRO at [47], a reasonable person could have understood the ‘course of dealing’ between Ms Heable and the Department as conveying that [email protected] was the ‘last…email address…for…receiving documents.’ As held by Jagot J in Maroun v Minister for Immigration and Citizenship [2009] FCA 1284 at [36] in relation to postal addresses, but which the Tribunal considers has equal applicability to email addresses:
‘As to the further submission about the address not being the appellant’s “last” address, the ordinary meaning of the word “last”…does not mean “single” or “only”. It means “most recent at the time in question”.’
There is no reliable evidence before the Tribunal to conclude that Mr Walker received the notice at a specific later date after 1 April 2019. Mr Robinson expressed uncertainty about when the notice may have been received by Mr Walker, without being able to state when that may have been. As held in SZVRO at [66]-[68]:
’66. First, the references to “at a later time” and “at that time” suggest specificity. They do not suggest imprecision such as some unspecified time after date X.
67. Second, contextual factors support such precision. A specified date serves the function of enlivening the time period within which to file an application with the Tribunal (see s 412(1)(b) and reg 4.31(2)). Moreover, given that there is no statutory power to extend the period within which to seek review by the Tribunal, a specific and identified date of receipt is not unimportant. An absence of precision detracts from the ascertainment of the relevant period.
68. Third, if a specific date is not identified, the proviso under s 494C(7) is not then triggered. And by force of s 494C(7), the “default” date under s 494C…then applies; as is stated in s 494C(7), “… the person is taken to have received the document at the times mentioned in this section…”. That is a deeming provision that operates even if the appellant shows that the document was received at an unspecified time after the deemed date. The deemed date applies if the proviso is not satisfied. And the proviso is not satisfied if an identified later date is not established.’
CONCLUSION
The information in the notice to Mr Walker about review rights complied with s 501G(1) of the Act. That information is clearly distinguishable from the notices in DFQ17 and BMY18, in that the notice to Mr Walker was sent to his authorised representative who was a lawyer and migration agent. In the Tribunal’s view the notice was sufficiently clear and did not need to be assembled from disparate parts of the notice or from incorrect headings as was the case in DFQ17 and BMY18.
Objectively assessed, there was no error in the respondent sending the notice to Ms Heable at the email address she used in her communications with the Department, which the Tribunal is satisfied was ‘the last…email address…provided to the Minister for the purposes of receiving documents.’ Mr Walker was therefore taken to have received the notice at the end of the day on 1 April 2019, following which the nine day time limit, as clearly specified in the notice, began to run. Mr Walker did not lodge his review application until 27 December 2019, approximately nine-months after he was taken to have received the notice, and was therefore well out of time. Consistent with s 500(6B) of the Act the Tribunal has no discretion to extend the time for making an application.
DECISION
The Tribunal does not have jurisdiction to consider Mr Walker’s application and dismisses it under s 42A(4) of the AAT Act.
I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the written reasons for the decision of Senior Member A. Nikolic
..............[sgd]..........................................................
Associate
Dated: 16 January 2020
Date of hearing: 14 January 2020 Counsel for the Applicant: Mr Anthony Robinson Solicitors for the Applicant:
Advocate for the Respondent:
AR Law Services
Ms Siran Nyabally
Solicitors for the Respondent:
Australian Government Solicitor
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