Warsame v Minister for Immigration
[2018] FCCA 140
•24 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WARSAME & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 140 |
| Catchwords: MIGRATION – Application for review of decision of Administrative Appeals Tribunal – Applicants failed to lodge application for review within time limit specified – electronic notification of refusal of visa – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 347(1)(b), 494B, 494C, 494D Migration Regulations 1994 (Cth), regs.2.16, 4.10 |
| Cases cited: MZZJD v Minister for Immigration and Border Protection & Anor [2013] FCAFC 156 Tay v Minister for Immigration and Citizenship & Anor [2010] FCAFC 23 |
| First Applicant: | ANAB HIRSI WARSAME |
| Second Applicant: | SUMAYO DIRIE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 626 of 2016 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 2 October 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 24 January 2018 |
REPRESENTATION
| Counsel for the Applicants: | Mr Sorensen |
| Solicitors for the Applicants: | Goz Chambers Lawyers |
| Counsel for the First Respondent: | Mr Yuile |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
ORDERS
The application is dismissed.
The Applicants pay the costs of the First Respondent fixed in the sum of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 626 of 2016
| ANAB HIRSI WARSAME |
First Applicant
| SUMAYO DIRIE |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 11 March 2016. By that decision, the Tribunal found it had no jurisdiction to hear the First Applicant’s application for review of a decision of a delegate of the Minister for Immigration and Border Protection (‘the Minister’), which refused to grant to the First Applicant a Partner (Temporary) (Class UK) (Subclass 820)/Partner (Residence) (Class BS) (subclass 801) visa (‘the visa’) under s.65 of the Migration Act 1958 (Cth) (‘the Act’).
The Tribunal found it had no jurisdiction because the First Applicant failed to lodge her application to review the Minister’s decision within 21 days of notification of refusal to grant her a visa, the period prescribed under s.347(1)(b) of the Act and reg.4.10 of the Migration Regulations 1994 (Cth) (‘the Regulations’). The review application was lodged with the Tribunal on 10 February 2016, being one day out of time, as found by the Tribunal.
The Applicants in their application before the Court filed on 29 March 2016 set out a number of grounds of review that are, in essence, two grounds, being that the Tribunal failed to exercise its jurisdiction and jurisdictional error attends the decision because of:-
a)a “misidentification of the date of notification” by the delegate of the Minister, from which time began to run for the making of an application to the Tribunal; and
b)a failure to provide procedural fairness to the Applicants in relation to the Tribunal’s decision.
The essence of the first ground is that, it is argued, the Tribunal was incorrect to find that the Applicants had been notified by email from the delegate of the Minister to the authorised recipients of the Applicants, and the essence of the second ground was a submission that the Tribunal proceeded to a decision on material it sought from the Department of Immigration and Border Protection (‘the Department’) without giving the Applicants the opportunity to comment.
Background
The relevant procedural history of this matter is as follows:-
a)the Applicants submitted their visa applications to the Department on 16 February 2015. The applications were made via a migration agent, who submitted a Form 956 notification of migration agent providing immigration assistance;
b)on 23 February 2015, the Department sent an acknowledgement of valid applications to the Applicants’ agent via email;
c)on 24 July 2015, the Department sent an invitation to comment on information for the visa applications to the Applicants’ agent by email. The Applicants’ agent responded to that request by email on 21 August 2015, with submissions and materials;
d)on 19 January 2016, the delegate of the Minister sent a notification of a refusal of application for the Applicants’ visa (with decision record) to the Applicants’ agent by email. The delegate of the Minister also sent a hard copy of the email to the Applicants’ agent. The notification letter covering the reasons for decision noted in the final paragraph that the original of the letter and attachments had been sent to the Applicants’ agent via email;
e)the Applicants’ sought to apply to the Tribunal for review of the delegate of the Minister’s decision. The covering letter for the application is dated 5 February 2016, but it was not received by the Tribunal until 10 February 2016;
f)the Tribunal notified the Applicants’ agent that the application to the Tribunal had been received. That notification was by an email sent to the wrong address on 10 February 2016, followed by an email sent to the correct address on 12 February 2016;
g)on 17 February 2016, the Tribunal sent to the Applicants’ agent an invitation to comment on the validity of the application for review by email;
h)an initial response to that invitation was sent by the Applicants’ agent via email on 17 February 2016. A more formal submission responding to the invitation was sent by the Applicants’ agent by letter dated 17 February 2016.
i)on 16 March 2016, the Tribunal wrote by email to the Applicants via their agent, notifying them of the Tribunal’s decision that it had no jurisdiction in the matter;
j)there followed the application for review that is before the Court.
The Applicants rely upon the application filed 29 March 2016, an affidavit of the First Applicant filed 29 March 2016 and submissions filed by the Applicants. The First Respondent seeks dismissal of the application and relies upon a response filed 21 April 2016 and submissions filed 29 November 2016. There is before the Court the evidence as contained in the Court Book.
The Tribunal
In paragraph 3 of the Statement of Decision and Reasons (‘the Decision Record’) the Tribunal correctly stated the applicable legislation when it said:-
“Pursuant to s.347(1)(B) of the Act and r.4.10 of the Migration Regulations 1994 (the Regulations) an application for review of this decision [the decision of a delegate of the Minister for Immigration dated 19 January 2016] had to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements.”
The Tribunal then went on to say, in the Decision Record, as to that notification, the following:-
“4. The Department's records indicate that the decision notification was emailed to the registered migration agent to the email address provided to the Department by the agent on 16 February 2015 at time of lodgement of the application. In the Form 956 the migration agent agreed that the Department could communicate by fax, email or other electronic means.
5. Departmental information indicates that the applicant was notified of the decision on 19 January 2016, as it was dispatched by email on that date. The covering letter clearly states, “Transmission method: Email sent to [email protected]".
6. The Tribunal has also sighted records that show that a courtesy copy of the notification of the decision, along with original photographs, were posted (by registered post) to the registered migration agent on 19 January 2016, stating, “This information is a courtesy copy of the email sent to you on the same day.”
7. The last day for the applicant to lodge this application within 21 days after the applicant was notified of the decision in accordance with statutory requirements, was on 9 February 2016. Instead, the applicant lodged the review application with the Tribunal on 10 February 2016.”
Thereafter the Tribunal noted in its Decision Record that on 17 February 2016, the Tribunal had sent to the Applicants registered migration agent a natural justice letter inviting comments from the Applicants on the validity of the review given that it appeared that the applications were not valid because they were not lodged within the relevant time period as provided statutorily. In response to that natural justice letter, the Applicants migration agent wrote to the Tribunal, stating, amongst other things:-
“We categorically denied (sic) the allegations that the decision were (sic) delivered to us by email…”
The Tribunal further stated in its Decision Record that it had sought the advice of the Department “in terms of how exactly the decision was sent to the migration agent”. The Tribunal noted in paragraph 10 of the Decision Record, relevantly:-
“...The relevant case officer advised:
A decision record is initially completed as a Word document. This is then converted into a PDF file and attached to the refusal notification email generated in the Enterprise Correspondence System (ECS).
On this occasion, as I do with all refusals where I am returning original documentation to the applicant, I then printed a courtesy copy of the refusal notification and attachments (the decision record and Form 1026) and then enclosed them with the client's original documents.
I print these documents from the PDFs attached to the email. I do not generate the letters and then scan them as a PDF. In the interests of the environment and reducing waste, I print out the notification and attachments as a double-sided document.
Therefore, my two points are:
- a PDF format can contain the entire document, and be printed either single- or double-sided, and
- I note that the client's representative had received a previous email generated through the Department's ECS on 24 July 2015, and responded to it by email on 21 August 2015.
Please find attached the original PDF decision record that was attached to the emailed refusal notification; I store them in a folder on my computer.
(Emphasis in original.)”
The Tribunal noted that in correspondence received by it from the Applicants registered migration agent that the registered migration agent advised the Tribunal that the Tribunal decision was delivered to the migration agent by post together with the Applicants original documents, which included the Applicants’ family photos. The Tribunal noted that the agent was correct in stating that a hard copy of the decision was posted to the registered migration agent with photographs. The Tribunal noted, however, that was only a courtesy copy after the decision had been emailed to the authorised recipient on 19 January 2016. The Tribunal further noted, relevantly, in paragraph 11 of the Decision Record:-
“...The applicant through his agent has given authorisation to the Department to be notified by email, which in this case occurred and, from its investigations in terms of how the Department notified the applicant, the Tribunal is satisfied that the applicant was duly notified of the refusal decision by the Department by email on 19 January 2016.”
Consideration
The Court has concluded that the Tribunal did not fall into jurisdictional error for the following reasons and that, accordingly, the application should be dismissed with costs.
As to the argument that the hard copy notification was the only effective notification and time only began to run from the time of receipt of the hard copy letter.
The Applicants’ agent specifically provided an email address as a means of communication and agreed to the Department communicating with him by that means. The relevant form 956 was sent by the migration agent to the Department with the visa applications. The form provided the details necessary to satisfy s.494D(1) of the Act, which was, relevantly, as follows:-
“MIGRATION ACT 1958 - SECT 494D
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.
(3) Subject to subsection (3A), the first person (but not the authorised recipient) may vary or withdraw the notice under subsection (1) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the first person's authorised recipient.
(3A) In addition to the first person being able to vary the notice under subsection (1) by varying the address of the authorised recipient, that recipient may also vary that notice by varying that address.
(5) The Minister need not comply with subsection (1) if:
(a) the authorised recipient is not a registered migration agent (within the meaning of Part 3); and
(b) the Minister reasonably suspects that the authorised recipient is giving immigration assistance (within the meaning of that Part); and
(c) the Minister has given the first person a notice, by one of the methods specified in section 494B, stating that he or she does not intend to give the authorised recipient documents as mentioned in subsection (1).”
In MZZJD v Minister for Immigration and Border Protection & Anor [2013] FCAFC 156 the Full Federal Court of Australia held that the reference to an “address” in s.494D(1) of the Act was not to be read as limited to a postal or street address. At paragraphs 29 and 30 of that decision the Full Court said:-
“29. In s 494B, a number of adjectives are used with the noun “address”: “residential”, “business”, “electronic” and “e-mail”. The word “e-mail” is also used as a noun in s 494B: see s494B(5)(b). However, its use as an adjective, together with the other adjectival terms used, makes it clear that the noun “address” is not to be read as limited to a postal or street address. That is to be expected in a statute dealing with notification of critical decisions where electronic communication is now an established and regular part of personal and business communications…
30. Accordingly, in our opinion the meaning to be given to the noun “address” in s 494D(1) should be consistent with the way the noun is used in s 494B. The latter provision makes plain that “address” can be an electronic one, and can be an email address. There is no reason in terms of the text, context or purpose of s494D(1) to construe it as requiring that a name and a street address must be given. The provision permits a visa applicant to nominate a person by name and email address, or other electronic address, as much as it authorises a visa applicant to nominate a name and a street address. Nor should the usual presumption about the singular include the plural…”
The form 956 submitted by the Applicants’ migration agent to the Department specified multiple addresses at which the migration agent could be contacted, which included an email address. The delegate of the Minister was entitled to send documents to the authorised recipient of the Applicants (being their migration agent) via his email address, it being an address for the purposes of s.494D of the Act.
Section 494D of the Act provided that the delegate of the Minister was required to send the delegate’s decision to the Applicants’ authorised recipient. Pursuant to s.494B(5) of the Act, the delegate was entitled to do so by email. Section 494C(5) of the Act provides that where a document is given to an Applicant by a method prescribed in s.494B(5) of the Act, the document is taken to have been received by the authorised person (and the Applicants) at the end of that day.
Also of relevance is s.66 of the Act which requires that where the Minister grants or refuses to grant a visa, he is to notify the Applicants in the “prescribed way”. “The prescribed way” is set out in reg.2.16(3) of the Regulations, which is relevantly as follows:-
“MIGRATION REGULATIONS 1994 - REG 2.16
Notification of decision on visa application
…
(3) The Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act.
Note: 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.”
In Tay v Minister for Immigration and Citizenship & Anor [2010] FCAFC 23, the Full Federal Court of Australia made clear that the deeming provisions, relevant to this proceeding, as set out in the Act, operate such that the delegate’s decision is taken to have been received by the Applicants regardless of what actually happened. The Full Court said, relevantly, in paragraphs 24 and 25 of that decision:-
“… Section 494C makes very detailed provision for determining when a document is taken (deemed) to have been received from the Minister. Those provisions must be construed in a statutory context of similarly detailed provisions concerning the methods by which the Minister may give documents to a person when this is a requirement (s 494B) and when it is not required (s 494A) and the identification of the authorised recipient of documents (s 494D). These provisions all evidence concern that there should be certainty in the transfer of documents from the Minister both as to the method and as to the time of delivery. This was recognised by the Full Court in Xie, leading it to conclude that s 494C(4) did not create a rebuttable presumption:…
25. That s 494C(5) does not create a rebuttable presumption of fact is supported not only by our construction of the relevant statutory regulatory provisions, but also by extrinsic material relevant to the introduction of these provisions…”
The Act therefore deemed the delegate’s decision to have been provided to the Applicants’ migration agent, and therefore the Applicants, at the end of the day on 19 January 2016. This is so even if the migration agent did not receive the decision as claimed. Time therefore began to run on 19 January 2016, which meant that the application was required to be received by the Tribunal at the latest on 9 February 2016. It was not so received, and the Tribunal therefore was correct to find that it did not have jurisdiction, as submitted by the First Respondent.
As to the claimed breach of procedural fairness
Even if there were a lack of procedural fairness, which I find there was not, having reached the conclusion the Court has as to the first ground, this ground becomes superfluous. It would be futile to remit the matter to the Tribunal, because the Tribunal would be required to refuse the application for lack of jurisdiction. Thus, the Court in the exercise of its discretion would refuse relief on this ground. The Court finds, however, that there was not a breach of procedural fairness.
As submitted by the First Respondent, the information given to the Tribunal by the delegate explained the procedure the delegate had followed, but it did not alter the critical facts as put to the Applicants for comment and about which the Applicants had an opportunity to make submissions. By its letter of 17 February 2016, the Tribunal set out the time limit for lodgement of applications to it; that the decision was emailed to the Applicants via their migration agent; and that the date by which the applications to the Tribunal were to be made was, at the latest, 9 February 2016. The Applicants were invited by the Tribunal to make, and did so make, submissions as to those critical matters.
No further opportunity was required to be afforded to the Applicants for comment.
The application shall be dismissed and costs shall follow.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 24 January 2018
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