Wilkowski and Minister for Home Affairs (Migration)
[2019] AATA 4097
•2 October 2019
Wilkowski and Minister for Home Affairs (Migration) [2019] AATA 4097 (2 October 2019)
Division:GENERAL DIVISION
File Number(s): 2019/5497
Re:Jacub Wilkowski
APPLICANT
AndMinister for Home Affairs
RESPONDENT
Decision
Tribunal:Member Burford
Date:02 October 2019
Place:Perth
The Tribunal dismisses the application for review.
.........................[sgd].............................................
Member Burford
Catchwords
PRACTICE AND PROCEDURE – cancellation of Applicant’s visa under s 501(2) of the Migration Act 1958 – whether application for review out of time – whether the Applicant was effectively notified of the cancellation decision in accordance with regulation 2.55 of the Migration Regulations 1994 – application dismissed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) – s 42A(4)
Migration Act 1958 (Cth) – ss 494B(4)(c), 500(1)(ba), 500(6B), 501, 501CA(4), 501G, 501G(1)(f), 501G(3)
Migration Regulations 1994 (Cth) – regs 2.55, 2.55(3), 2.55(3)(c), 2.55(3)(c)(ii) 2.55(7), 2.55(9)
Cases
Adhikari v Minister for Immigration and Border Protection [2018] FCCA 1459
Ali v Minister for Home Affairs [2019] FCA 1102
Anaki and Minister for Immigration and Citizenship [2012] AATA 116
Auimatagi and Minister for Immigration and Citizenship [2012] AATA 26
Beni v Minister for Immigration and Border Protection [2018] FCAFC 228
BMY18 v Minister for Home Affairs & Anor [2019] FCCA 1381
BOQ15 v Minister for Immigration & Anor [2019] FCCA 1477
BUY18 v Minister for Immigration & Anor [2019] FCCA 1787
CAV18 v Minister for Immigration & Anor [2019] FCCA 1921
Chadwick and Minister for Immigration [2012] AATA 529
CZI18 v Minister For Home Affairs & Anor [2019] FCCA 2080
ELM18 v Minister for Home Affairs & Anor [2019] FCCA 2108
EFX17 v Minister for Immigration and Border Protection [2018] FCCA 3179
GAV18 v Minister for Home Affairs [2019] FCA 1259
Gonzales and Minister for Immigration and Citizenship [2011] AATA 812
Lesianawai and Minister for Home Affairs (Migration) [2019] AATA 2947
Logova and Minister for Immigration and Citizenship [2011] AATA 955
Mahia and Minister for Immigration and Citizenship [2011] AATA 789
Matete v Minister for Immigration & Anor [2008] FMCA 573
Matete v Minister for Immigration and Citizenship [2008] FCA 1876
Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 77
Ngapera and Minister for Immigration and Citizenship [2012] AATA 24
Ngo v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1594
Sainju v Minister for Immigration and Citizenship [2010] FCA 461
Scott and Minister for Immigration and Citizenship [2012] AATA 400
Singh v Minister for Immigration & Anor [2019] FCCA 2106
Singh v Minister for Home Affairs & Anor [2019] FCCA 2153
Smith and Minister for Immigration and Citizenship [2011] AATA 777
Tay v Minister for Immigration and Citizenship and Another (2010) 183 FCR 163
Tran and Minister for Immigration and Citizenship [2011] AATA 21
Tupe and Minister for Immigration and Citizenship [2011] AATA 100
Wilson and Minister for Immigration and Citizenship [2011] AATA 325
Wilson v Minister for Immigration and Citizenship [2012] FCA 1421
Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172
Zhang v Minister for Immigration and Citizenship [2007] FCAFC 151
Secondary Material
Migration Regulations 1994 (Cth), Explanatory Statement, Select Legislative Instrument 2008 No. 237
REASONS FOR DECISION
Member Simone Burford
02 October 2019
THE APPLICATION
1. This is an application by Mr Jacub Wilkowski (the Applicant) for review of a decision made by the delegate of the Minister for Home Affairs dated 12 August 2019, not to revoke the mandatory cancellation of the Applicant’s Class BS Subclass 801 Spouse visa pursuant to section 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act) (the Delegate’s decision).
2. An interlocutory hearing on jurisdiction was held in Perth on 25 September 2019. The Applicant attended the interlocutory hearing by telephone and represented himself. The Respondent was represented by Mr Gerrard, Australian Government Solicitor, who attended the hearing by telephone.
3. Oral submissions were made by both parties. The Applicant also answered questions put to him by the Tribunal to clarify his position on submissions made by the Respondent and to confirm his understanding of the Respondent’s submissions.
background
4. The Applicant was notified of the Delegate’s decision by letter dated 13 August 2019. That letter was sent to the Applicant, by registered post, care of the postal address for the correctional centre where he was incarcerated. The details of the notification of the Delegate’s decision by delivery to the Applicant are dealt with further below.
5. On 4 September 2019, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the Delegate’s decision.
3.
THE MATERIAL
6. The following material was before the Tribunal:
1. the Applicant’s written submissions of jurisdiction dated 20 September 2019 including Australia Post tracking record (Exhibit A1);
2. the Applicant’s application for review letter dated 30 August 2019 and received by the Tribunal on 4 September 2019 (the application for review) (Exhibit A2);
3. documents accompanying the application for review – partial copy of the letter notifying the Applicant of the Delegate’s decision dated 13 August 2019 and statement of reasons dated 12 August 2019 (Exhibit A3);
4. the Respondent’s written submissions on jurisdiction received by the Tribunal on 18 September 2019 (Exhibit R1);
5. a copy of material sent to the Applicant as part of the notification of the Delegate’s decision including the letter dated 13 August 2019 notifying of the Delegate’s decision, statement of reasons dated 12 August 2019, evidence or other material considered in the case, information sheet about how to apply for merits review by the AAT and information about certain provisions of the Migration Act (Exhibit R2);
6. an email from National Character Consideration Centre Revocations (NCCC Revocations), Department of Home Affairs (the Department), to Acacia Immigration, Acacia Prison, dated 14 August 2019 regarding non-revocation of cancellation of the Applicant’s visa (Exhibit R3); and
7. an Australia Post registered delivery record (Exhibit R4).
RELEVANT LEGAL PRINCIPLES AND CONSIDERATION
7. The Delegate’s decision is a decision not to revoke the cancellation of the Applicant’s visa under s 501(3A) of the Migration Act. Subsection 500(1)(ba) of the Migration Act provides that an application may be made to the Tribunal for review of decisions under s 501CA(4).
8. Subsection 500(6B) of the Migration Act provides that if a decision under s 501 relates to a person in the migration zone, an application to the Tribunal for a review of a decision must be lodged with the Tribunal within nine days after the day on which the person was notified of the decision, in accordance with the s 501G of the Migration Act.
9. In addition to providing that an application to the Tribunal for a review of the decision must be lodged with the Tribunal within nine days after the day on which the person was notified of the decision, section 500(6B) of the Migration Act also has the effect that the time limits for applying for review and provisions relating to the extension of time to seek review under the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) are inapplicable to an application for review of a decision made under s 501 of the Migration Act.
10. Section 501G of the Migration Act provides for the notification requirements regarding a decision under s 501. These include s 501G(1)(f) which provides that:
501G Refusal or cancellation of visa—notification of decision
…
(f)if the decision was made by a delegate of the Minister under subsection 501(1) or (2), or section 501CA and the person has a 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.
(Original Emphasis.)
11. Section 501G(3) of the Migration Act provides that the notice must be given in the prescribed manner.
12. Regulation 2.55 of the Migration Regulations 1994 (Cth) (the Regulations) prescribes the manner in which cancellation notices are to be given to former visa holders (other than in specific circumstances not relevant to this application). Regulation 2.55(3) provides that a notice given to an adult must be given in one of the ways prescribed including:
…(c) by dating it, and then dispatching it:
(i) within 3 working days (in the place of dispatch) of the date of the document; and
(ii) by prepaid post or by other prepaid means; to the person's last residential address, business address or post box address known to the Minister;…
13. Regulation 2.55(7) relevantly provides that if a notice is given to a person in Australia by prepaid post, the person is taken to have received the document “…7 working days (in the place of that address) after the date of the document; …”
14. Regulation 2.55(9) provides:
(9) If:
1.(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
2.(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:
1.(c) at the time specified by this regulation for that method; or
2.(d) if the person can show that he or she received the document at a later time--at that later time.
3. Notification of the Delegate’s decision
15. On 14 August 2019, the Department emailed Acacia prison informing them of the Delegate’s decision and putting them on alert that the notification package was being mailed to the Applicant (Exhibit R3). The text of the email was as follows:
On 28 March 2018, a delegate of the Minister for Home Affairs cancelled the visa held by Mr WILKOWSKI, pursuant to s501 (3A) of the Migration Act 1958.
Mr WILKOWSKI subsequently requested revocation of the visa cancellation (original decision).
The revocation request [sic] been finalised with the decision made not to revoke the original decision, and therefore Mr WILKOWSKI’s visa remains cancelled.
Accordingly, Mr WILKOWSKI remains an unlawful non-citizen and following his release from criminal custody the Department will make arrangements for his immigration detention pending removal from Australia.
A notification package in relation to the above non-revocation decision has been posted to this prison facility addressed to Jakub Marcin WILKOWSKI. It is important for legal reasons that once received the full notification package is handed to Mr WILKOWSKI as soon as possible. If Mr WILKOWSKI is moved to another prison before the notification can be handed to him, please advise this office immediately.
You may know that the notification package is in duplicate, this being a requirement in the event Mr WILKOWSKI wishes to lodge a review application at the Administrative Appeals Tribunal (AAT). At the time the notification package is handed to Mr WILKOWSKI please advise that he has 9 days from the date of receipt* to lodge an AAT review application.
*Mr WILKOWSKI will be taken to receive notification when the notification package is handed to him.
(Original Emphasis.)
16. The status of this email and the information contained in it with respect to notification of the Applicant is dealt with further below.
17. As noted above, the Applicant was notified of the Delegate’s decision by letter dated 13 August 2019 (the Notice). That Notice was sent to the Applicant by registered post to the care of postal address for the correctional centre where he is incarcerated.
18. The Notice, issued to the Applicant pursuant to s 501G of the Migration Act, provided the following information (Exhibit A3):
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 you do not have an authorised recipient who can receive documents on your behalf, and as this letter was sent to you by mail from a place in Australia to an address in Australia, you are taken to have received it seven (7) working days after the date of this letter. A working day does not include weekends or public holidays in the Australian state or territory to which the letter was posted.
Enclosed is an information sheet about ‘How to Apply for Merits Review by the AAT’, together with two copies of:
1. the decision record (Statement of Reasons) that sets out the reasons for the decision (other than non-disclosable information, if any); and
2. 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.
(Original Emphasis.)
19. This information is followed by the signature and name of the departmental officer who wrote the Notice. Finally, the date of the letter is stated as being 13 August 2019.
20. The Tribunal notes that the copy of the Notice sent by the Applicant to the Tribunal with his application for review (Exhibit A3) was missing the pages numbered two and three according to the documents provided by the Respondent (Exhibit R2). This was discussed with the Applicant at the hearing and is dealt with in further detail below.
21. Delivery receipt documents (Exhibit R4) indicated the Notice was initially processed by Australia Post on 15 August 2019 and delivered to the postal address on 26 August 2019. The Respondent did not dispute the Notice was not, in fact, received by the Applicant until sometime after the delivery date on 26 August 2019.
2. The Applicant’s submissions
22. In written letters provided to the Tribunal, and in oral submissions at the hearing, the Applicant advanced several arguments relating to the notification and whether the application was filed out of time.
23. The Applicant’s first argument was that he did not in fact receive the document until 30 August 2019 and that he sent his application on the same day. On this basis, he submitted the nine day period for the filing of his appeal should have run from the day after he received the notification. In a letter to the Tribunal dated 30 August 2019 the Applicant stated (Exhibit A2):
I am writing this letter in regards to the 9 days I have been given to lodge my application for review. It states in the Notification not to revoke my visa cancellation that I am taken to have received it within 7 working days of it being sent (sent on 12th of August [2019]) however as I am currently in prison, due to security reasons (every incoming mail has to be read and checked by prison staff) I have only received the notice today (30th of August [2019]). I am writing this letter to let you know I have complied with the time limit and I am sending this application on the same day of receiving the notification.
24. The Applicant’s second argument was that the document was not delivered to the prison until 26 August 2019, and that in the alternative to timing one explained above at [2`q3], the nine day period for filing the application should be calculated from that date. In a letter to the Tribunal dated 20 September 2019 the Applicant stated (Exhibit A1):
The Respondent states that the decision I seek to review was sent on the 13th of August [2019] and I am taken to receive it within 7 working days, that is, by 22 August [2019]. I then have 9 working days to lodge the application, which means the last day to lodge it would fall on Monday, 2 September [2019]. My application review was made on the 4th of September [2019] and, according to the timeframe is 2 days out of time. However I have received the tracking history of the documents which shows that on the 26th of August [2019] (4 days after the date I am taken to have received it) the package was still awaiting collection at Woorooloo LPO, Woorooloo, WA and it was only delivered to the prison I am in that same day, that is, 26 August [2019]. Consequently, as I must lodge the application within 9 working days of receiving the documents and I lodged it on 4 September [2019], I believe I lodged the application within the timeframe.
25. The third submission that was advanced at the hearing was in general terms which that the system for delivering the Notice to the Applicant denied him the ability to lodge his application. In part the Tribunal took this to be a submission that the notification did not comply with the requirements of s 501G(f) of the Migration Act because the Applicant was not notified of his right of appeal in a manner which would allow those rights to be effectively exercised, or that in general terms, he had been denied an effective right of review by the timeframes provided for under the legislation.
The Respondent’s submissions
26. The Respondent submitted that there were five key issues arising for consideration (Exhibit R1 and oral submissions):
a.(a) Did the Notice comply with the requirements of s 501G?
2. The Respondent submitted that the Notice met all the requirements of s 501G in that it:
i.(i) set out the decision;
ii.(ii) specified the decision was made under s 501CA(4) and stated the effect of the decision;
iii.(iii) attached a detailed statements of reasons for the decision;
iv.(iv) under the heading “Review Rights” detailed the Applicant’s rights of review, including stating that the application for review must be lodged within nine days after the applicant is taken to be notified of the decision, and noting that as the letter had been sent to him via mail he was taken to have received it seven working days after the date of the letter. Further, the notice also included an information sheet about “How to Apply for a Merits Review by the AAT”; and
v.(v) provided the Applicant with two copies of the notice and attachments.
3. The Respondent submitted that the Tribunal has taken a strict view that the requirements of section 501G was complied with, and that in the Applicant’s case the requirements were strictly adhered to.
a.(b) Were requirements for the method of delivery of the Notice complied with?
i.(i) The Respondent submitted that the Notice was served by registered mail to the prison which was the only address for service available and was dispatched within 3 working days that is on 15 August 2019 as required by the Regulations.
a.(c) When is the Applicant taken to have received the Notice?
i.(i) The Respondent submitted that the Migration Act and Regulations provided that the date the Applicant is taken to have received the Notice is seven days after the date of the Notice being 22 August 2019. The Respondent submitted that that date is immutable. The Respondent submitted that it is not appropriate to enquire when the Applicant actually received notice of the decision, and the legislative construction of when an applicant receives the notice cannot be rebutted. The erroneous representation made by the Delegate in the email to the prison on 14 August 2019 (Exhibit R3) does not change the fact that the Applicant was notified correctly. No representation of the Applicant can alter the statutory timeframes for receipt of the document. No issue of estoppel arises.
a.(d) When was the Applicant required to lodge the application for review?
i.(i) The Respondent submitted that the legislation clearly provided that the application for review must be lodged nine days after receipt of the Notice being 2 September 2019, consequently the application was lodged 2 days out of time.
a.(e) In circumstances where the application was lodged out of time, can the Tribunal extend the time for lodgement?
i.(i) The Respondent submitted that it was established as a matter of law that the Tribunal has no power to extend the time for the making of the application.
CONSIDERATION
Were the requirements for s 501G met?
27. The Respondent contended that the Notice clearly met the requirements of s 501G including through the detailed wording of the section of the Notice titled “Review Rights”. According to the copy of the Notice provided by the Respondent (Exhibit R2) this was contained in pages one and two of the Notice. The delivery receipt page comprised page three.
28. As noted earlier, the copy of the Notice which was sent by the Applicant to the Tribunal with his application for review (Exhibit A3) appeared to be missing pages two and three. The Applicant initially indicated he believed he had sent a full copy of the document he received to the Tribunal with his letter of application for review. The Tribunal discussed this with the Applicant at the hearing. The Tribunal noted that as the information he referred to in his covering letter to the Tribunal (the application for review) included information which was contained in pages two and three of the Notice it appeared likely that he had received those pages when the Notice was given to him. The Applicant accepted that this conclusion was likely correct although he could not remember the details of the documents he had received. The Applicant confirmed that he was aware when he received the document that the Notice contended that he was taken to have received it seven days from the date of the letter (a position confirmed in his letter to the Tribunal) and that he was aware of the nine day time limit for filing his application for review. He indicated he understood the timeframe to be taken to relate to the date he was taken to have received the document. Again, this is reflected in his letter to the Tribunal.
29. On the basis of the evidence before it, the Tribunal finds that the Applicant did receive a full copy of the notice including the pages detailing his “Review Rights” (including the page numbered 2). It is not clear from the evidence before the Tribunal whether the delivery receipt page (page 3) was signed by the Applicant and/or prison staff and returned to the Respondent.
30. Based on the material before it the Tribunal is satisfied that the Notice set out the Delegate’s decision, the section under which it was made and the effect of the decision. Further the Tribunal is satisfied that it attached a statement of the reasons for the Delegate’s decision. The Tribunal is also satisfied, and the Applicant did not contest, that two copies of the Notice and attachments were provided to the Applicant.
31. Given the question of whether the application for review was made within time, the Tribunal gave careful consideration to whether the Notice met the requirements of s 501G(1)(f) of the Migration Act, which relate to informing an applicant of their rights and avenues of review and the timeframes which apply. The Tribunal is satisfied the Notice clearly stated the Applicant had a right to seek review of the decision to the Tribunal. The information sheet provided the required information on how to file an application for review with the Tribunal.
32. The Tribunal notes that the legislation does not require that the letter explicitly state the final day upon which the Applicant could make an application for review to the Tribunal. Rather, subsection 501G(1)(f)(ii) of the Migration Act requires that the notification letter must state “…the time in which the application for review may be made;….”. The legislation indicates that the notification letter must state a period of time in which the application for review may be made, rather than explicitly stating the last date of that period. The Tribunal is satisfied that the Notice met this requirement.
33. The time in which an application for review may be made depends on a number of factors including the method of delivery. In the Notice dated 13 August 2019 (Exhibit A3), the relevant information is set out in one place, under the heading: “Review Rights”. The Tribunal considers it was clear that the letter had been dispatched by prepaid post to the post box address for the Applicant last known to the Minister. The post box address to which the notification letter was dispatched was clearly stated on the letter. In addition, the letter clearly indicated that the letter had been dispatched by registered post as the top right hand corner of the front page of the letter contained the following words in bold capitals “REGISTERED MAIL”. In any event the Notice stated that “as this letter was sent to you by mail…. you are taken to have received it seven (7) working days after the date of this letter.” (Exhibit R2).
34. Further, the letter explained the timeframe in which an application for review by the Applicant must be lodged, again under the “Review Rights” heading. The Notice clearly stated that “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”.(Exhibit R2).
35. The Tribunal notes that the Applicant confirmed that in this instance he received the document and that he understood the timeframes outlined in the Notice, albeit that he disagreed with those timeframes and regarded them as unfair. The Tribunal questioned the Respondent as to whether the requirements of s 501G(f) can be taken to be satisfied where the method of notification, in effect, denies an applicant the opportunity to exercise those rights because the time for review has already passed, or cannot as a practical question be met. The Respondent contended that the requirements of s 501G are required to be strictly adhered to, but that if they were the question of any unfairness or harshness to an applicant arising from the operation of the statutory timeframes for review did not arise for consideration. For the reasons set out further in the discussion below the Tribunal accepts this to be the case.
36. Given the wording of the Applicant’s application for review the Tribunal regards that the Applicant may have been operating under the assumption that the fact he did not receive the documents until after the date the Notice outlined he was taken to have received them may have in some way altered or extended the time for filing the application for review. That he was operating under such a misapprehension is unfortunate but, in the Tribunal’s view, does not act to alter the statutory timeframes for filing the application for review.
37. Having regard to all the circumstances, the Tribunal is satisfied that the Notice met the requirements of s 501G including by stating the “…time in which the application for review may be made;…”.
Were the requirements for dispatch and delivery of the Notice met?
38. As noted above, regulation 2.55 provides that a notice given to an adult must be given in one of the ways prescribed including:
“…(c) by dating it, and then dispatching it:
(i) within 3 working days (in the place of dispatch) of the date of the document; and
(ii) by prepaid post or by other prepaid means; to the person's last residential address, business address or post box address known to the Minister;…”
39. A copy of the envelope containing the notification letter was provided by the Respondent to the Tribunal addressed with the following details (Exhibit R4):
To: Company Name ACACIA PRISON
Attention JAKUB MARCIN WILKOWSKI
PO Box number
or street address LOCKED BAG 1
Suburb
or town WOOROLOO State WA Postcode 6558
40. Further, the tracking history details was also provided by the Respondent to the Tribunal with the following details (Exhibit R4):
Service Registered Post Tracking number RPP4463900051000775607600
Tracking history
Details Date & Time
Item processed at facility Thu 15 Aug 11:47am
DANDENONG SOUTH VIC
Awaiting collection at WOOROLOO LPO Mon 26 Aug 5:45am
WOOROLOO WA
Delivered Mon 26 Aug 7:03am
WOOROLOO WA
41. The documents evidence the dispatch of the material by prepaid registered post to the postal address of the correctional centre where the Applicant was being held. The record indicated the Notice was initially processed on 15 August 2019 and delivered on 26 August 2019. The Tribunal is satisfied that the Notice was dispatched by prepaid post within three working days of the date of the letter.
42. In the present case, the document was sent to the Applicant at the correctional facility where he is incarcerated being Acacia Prison. It was not clear on the evidence before the Tribunal how this address was known to the Minister (previous correspondence included in the material is addressed to the Applicant in another prison facility). However, the Applicant did not raise any issue regarding the use of this address and confirmed he received the document at that address. The Tribunal is satisfied on this basis that the notification letter was sent to the last address for the Applicant known to the Minister.
43. In relation to the use of the prison address, the Respondent relied on the decision of Member Eteuati in Lesianawai and Minister for Home Affairs (Migration) [2019] AATA 2947(Lesianawai).
44. In Lesianawai, Member Eteuati considered the authorities relating to the deeming provisions including in the context of notification to an applicant by means of a prison address. Following consideration of these authorities and in considering the effect of sending a notification by prepaid post to a postal address where an applicant is incarcerated the Tribunal provided a useful summary of the position noting, at [68]-[72] and [75]:
5.[68] In relation to receipt of documents by post, it will often be the case that the intended recipient does not have control over the receipt of documents. If one's address was a boarding school, university residence, a hotel or any other residence at which multiple people reside, it may well be the case that there is a reliance on others to deliver a document to the person once it has arrived at the residence.
6.[69] Similarly, for any large business, the receipt by an intended recipient of post mail will also depend on the people responsible for mail within the business delivering the document to the intended recipient. The lack of control by the intended recipient of mail at their residential address, business address or postal address, does not mean that it is not their residential, business or postal address and there is nothing in regulation 2.55 which supports such an interpretation.
7.[70] It is also noted that, even if documents are sent to a person's residential address where under normal circumstances the person would directly receive mail, there are circumstances under which the person will have no control over receipt of documents. For example, where the person is away from home for an extended period for work, holidays etcetera. Again, the lack of control over receipt of documents in these instances does not mean that the person's residential address ceases to be their residential address.
8.[71] Further, in relation to people in prison, it would appear that these people will not have control over receipt of email or facsimile correspondence. The result of this, according to the Applicant, is that the only way for a person in prison to receive documents would be by the method stipulated in regulation 2.55(3)(a), that is, handing the document to the person. The Tribunal considers that if this was Parliament's intention it would have simply stated so.
9.[72] Indeed, it is clear from Zhang that the policy behind regulation 2.55 is to allow the Minister to avail himself of all the available options for giving documents under the regulation. In Zhang the Full Court of the Federal Court stated:
“15… It is also obvious from the options provided to the Minister in bringing a document to the attention of the intended recipient, that the policy of the section is to allow the Minister to avail of all of the obvious means provided by that person to the Minister that would facilitate that person's receipt of a documentary communication. That policy becomes the more apparent when one has regard to the provisions of s 494D which provides that if a person gives the Minister the name and address of another person whom he or she has authorised to receive documents in connection with matters arising under the Migration legislation, the Minister must give the authorised recipient any document that the Minister would otherwise have given the person giving the authorisation.
1. …
29. While a possible interpretation of ‘post office box’ is that suggested by the appellant, that interpretation does not, in our view, further the obvious purpose of the ‘service scheme’ of the Act, nor does it reflect how reg 2.55 should be construed in the context of the Act as a whole. As earlier indicated, the manifest purpose of s 494B is to optimise the known choices available to the Minister to communicate documents to the person intended to be notified of their content. There is no reason to consider that reg 2.55 has some more restrictive purpose such that the Minister could not avail of an address for correspondence (or service) unless that address happened to be a post office box address. This would be a consequence of accepting the appellant's submission."
…
1.[75] The Tribunal considers it is bound by the decisions of the Federal Court in Ngo and the Federal Magistrates Court in Matete. The Minister notes that the decisions in Ngo and Matete do not appear to have been before Deputy President Handley in Tran. The Tribunal notes that even if the Tribunal is not technically bound by the decisions in Ngo and Matete the Tribunal would have been inclined to follow the reasoning in those decisions to the effect that regulation 2.55 allows for documents to be sent by prepaid post to persons held in prison.
45. The Tribunal accepts that notification of the Applicant by means of a prison address is consistent with the requirements of regulation 2.55. Having regard to the authorities and the evidence before it, the Tribunal finds that the Applicant was correctly notified of the cancellation decision by prepaid post under regulation 2.55.
When is the Applicant taken to have received the Notice?
46. The Applicant submitted that the deemed receipt provisions unfairly restricted the time in which he was able to lodge his review because he did not, in fact, receive the Notice until 30 August 2019. He submitted that he should be taken to receive the document on either the day he did, that is 30 August 2019 or otherwise on the day it was received by the prison, 26 August 2019.
47. The Respondent submitted that the words taken to have received the document in the context of similarly worded provisions has been found to manifest an intention that a person is taken to receive the document seven working days after the date of the document, without qualification. The Respondent submitted furthermore that by sending a document by one of the prescribed methods a person is taken to receive the document at the time specified in the legislation regardless of whether the document was actually received. Deemed receipt does not create a “rebuttable presumption”.
48. As noted above, the Tribunal in Lesianawai considered the approach of the authorities to the question of deemed receipt provisions, similar or identical to those applying in this case, and the potential unfairness to the Applicant caused by the application of such provisions.
49. The Tribunal notes that the Courts have given extensive consideration to the potentially harsh effect the deemed receipt can have on an applicant for review. In such cases, the Courts have upheld the principle that while the effect may be harsh the intention of such provisions to provide administrative certainty should override the injustice which may occur to a particular applicant. In Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 77 (Singh) the Full Court of the Federal Court (O’Connor and Mansfield JJ) found that the object of similar provisions in the Act was (at [32]):
5. a scheme to achieve administrative certainty in the manner and time of giving notice of decisions made with respect to visa applications, and as to the expiry date for any application to review such decisions...should override the injustice which may occur because a particular visa applicant, sometimes entirely without fault on that person's part, does not in fact receive that notice in a timely way.
50. This decision was followed by the Full Federal Court in Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 (Xie), and Tay v Minister for Immigration and Citizenship and Another (2010) 183 FCR 163 (Tay). In the latter decision, the Full Court of the Federal Court (Dowsett, Stone and Bennett JJ) said that although deemed notification provisions may produce harsh results, they are a consequence of considered legislative intention. The Court stated at paragraph [19]:
7. For reasons given below, we have concluded that the decision in Xie is not wrong nor does it produce unintended or irrational consequences. The construction of s 494C(4) in Xie and the consequent rigidity of time limits imposed on applications for review may seem harsh but, as the explanatory material referred to below indicates, they result from the considered decision of the legislature as to an appropriate way to facilitate visa applications and to clarify when documents are received.
51. Similarly, in Sainju v Minister for Immigration and Citizenship[2010] FCA 461 (Sainju), where regulation 2.55 of the Regulations was considered, Jacobson J noted in relation to the purpose and possible outcomes of notification deeming provisions in the Act and the Regulations:
9. The underlying assumption in each of the deeming provisions is that the act taken by the Minister is sufficient to bring the document to the attention of the person, regardless of whether this has actually occurred.
10. Thus, when a document is handed to the person, it is assumed that the person will open the envelope and read it, regardless of whether he or she actually does. Also, when a document is handed to another person at the addressee’s residence or place of business, it is assumed that the other person will give it to the named person. So too, it is assumed that the postal system will work in the ordinary way and that the addressee will receive the document within the time stated.
11. The same assumption is made in the deeming provision which deals with electronic communications. Thus, an email is taken to be received at the end of the day on which the Minister transmits, or sends it, to the addressee.
12. It may be that in an unusual case there will be unfairness because the assumption which underlies the deeming provision is not fulfilled. The other person may not hand the document to the addressee, the postal system may produce inordinate delay or the email may be lost for a period of time in cyberspace. Perhaps the document will never find its way to the addressee.
13. But the authorities dealing with deeming provisions in relation to non-electronic communications make it clear that the effect of those provisions is not to create a rebuttable presumption of fact. They are not to be read as if they were subject to a proviso that the person is not taken to have received the document if the contrary is proved: Xie v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCAFC 172 (“Xie”) at [13] – [14] per Spender, Kiefel and Dowsett JJ; see also the review of the authorities by Sundberg J in Minister for Immigration and Citizenship v Abdul Manaf[2009] FCA 963 at [21] – [24]; and see Tay v Minister for Immigration and Citizenship[2010] FCAFC 23 at [16] – [19] per Dowsett, Stone and Bennett JJ.
14. The same reasoning applies to the statutory deeming provision relating to electronic communications in reg 2.55(8). There is nothing in the language of the paragraph, particularly when read in its full context, or in the evident statutory or regulatory purpose, to suggest a different view. That is to say “by transmitting” means by sending and the person is taken to have received the document at the end of the day on which it is sent.
15. The purpose of provisions such as these is to achieve administrative certainty as to whether a document has been given to a person, and as to the time at which this has occurred. It affects time limits for review of administrative decisions and may, in some instances, foreclose that possibility.
52. Justice Jacobson’s reasoning in Sainju was accepted by the Full Court of the Federal Court (McKerracher, Reeves and Thawley JJ) in Beni v Minister for Immigration and Border Protection [2018] FCAFC 228.
53. In Lesianawai, Member Eteuati distilled the following principles from the authorities relating to the deeming provisions:
1. regulation 2.55(3)(c) allows for documents to be sent by prepaid post to persons held in prison;
2. regulation 2.55(7) will operate in these circumstances to deem receipt to have occurred seven working days after the date of the document if the document has been sent within three working days of the date of the document;
3. the manifest purpose of regulation 2.55 is to optimise the known choices available to the Minister to communicate documents to the person intended to be notified of their content; and
4. the purpose of the deemed notification provisions is, in part as referred to in Singh (see above at [49]) provide:
a scheme to achieve administrative certainty in the manner and time of giving notice of decisions made with respect to visa applications, and as to the expiry date for any application to review such decisions...should override the injustice which may occur because a particular visa applicant, sometimes entirely without fault on the person's part, does not in fact receive that notice in a timely way.
54. Consistent with the analysis in Lesianawai and following the authorities cited therein, the Tribunal finds that while the process of delivery and receipt of the Notice to the Applicant in prison may have created practical difficulties for him lodging his application for review, such a result does not render the delivery of the Notice invalid under the legislation. Nor does it affect the date of deemed receipt of the document. The harshness of this outcome is within contemplation of the legislative regime set by the Parliament. The fairness of such a policy is not a matter which is within the power of the Tribunal to review.
The 14 August 2019 email
55. The Tribunal had regard to whether the email sent by the Department to the prison on 14 August 2019 impacted either the validity of the notification under s 501G or the operation of the deeming provisions.
56. With regard to the email, which erroneously stated that “Mr WILKOWSKI will be taken to receive notification when the notification package is handed to him”, the Respondent submitted that as the notice was clearly given to the Applicant by the method specified in the Regulations the consequence was that the applicant is taken to have been notified in accordance with the timeframe set out in regulation 2.55(7)(a). The Respondent referred to the in Singh holding, at [48], that officers of the Department do not have any authority to alter the timetable applicable under the Migration Act and Regulations. Further the Respondent submitted that neither do any purported or incorrect representations create an estoppel.
57. While the issue of estoppel was not expanded by the Respondent, and not claimed by the Applicant the Tribunal accepts that it does not arise on the circumstances. Even if such a claim were available there is no evidence before the Tribunal that the Applicant knew of or relied upon the false information as to the timeframes which was communicated to the prison via the email.
58. Although not raised in submissions the Tribunal also gave consideration to whether the provisions of regulation 2.55(9) may apply to the Applicant’s circumstances. As noted above, regulation 2.55(9) provides:
“(9) If:
1.(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
2.(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:
1.(c) at the time specified by this regulation for that method; or
2.(d) if the person can show that he or she received the document at a later time--at that later time.”
59. Case law suggests that the provision relates to errors in the giving of a notification by “the method specified” and effectively act to exonerate the Minister (or Delegate) in such instances . Examples include errors in addresses. This interpretation is supported by the Explanatory Statement to the amending regulation which introduced regulation 2.55(9). The Explanatory Statement provided that:
New subregulation 2.55(9) provides that if the Minister purports to give a document to a person by a method specified in regulation 2.55 of the Principal Regulations but makes an error in doing so, and the person nonetheless receives the document or a copy of the document, then the Minister is taken to have given the document to the person. Generally, the person will be taken to have received the document at the time specified in the relevant regulation in respect of the method used. However, if the person can show that he or she received the document at a later time, then he or she is taken to have received the document at that later time.
The purpose of new subregulation 2.55(9) is to ensure consistency with the amendments made to the notification provisions in the Act by the Migration Amendment (Notification Review) Act 2008 which will also commence by Proclamation on 5 December 2008. This subregulation will also ensure that the deemed time of notification provisions within regulation 2.55 will operate despite non-compliance with a procedural requirement for giving a document to a person where the person has actually received the document. This new subregulation will also protect the person from possible injustice by allowing the person to actually show that he or she received the document at a later time than provided by the deeming provisions.
60. It is difficult to see, having regard to the provision and the cases which have considered it, that an email not forming part of the notification under s 501G could constitute an error in the giving of a document pursuant to the method specified under regulation 2.55 capable of disrupting the accepted nine day period. While the Tribunal accepts that it was through no fault of the Applicant that he did not receive the notice of the cancellation of his visa until multiple days after the start of the nine day period, the construction of regulation 2.55 operates in effect to fix the expiry day for any application to review such decisions.) Had there been evidence that the prison officers conveyed the content of the email when delivering the Notice to the Applicant or acted somehow on the email as part of the process of the notifying of the Applicant, it is possible the provisions of regulation 2.55(9) may operate to the effect that actual receipt of the document was the relevant date. However, that is not the situation on the evidence before the Tribunal.
61. The regulation provides for deemed receipt only if there has been an error in giving the notification by a method prescribed in regulation 2.55. It does not provide for deemed receipt if the error relates to the content of the notification and in such cases, actual notification is not available. In the event the email were read to be part of the notification, the error would appear to be related to the content of the notification rather than to an error in the method of giving the document to the Applicant. In such circumstances r.2.55(9) would not apply but the notification may be defective. However, as the Notice itself clearly stated the timeframes and process for applying for review of the Delegate’s decision and where there was no evidence the email was intended to form part of the notification of the Applicant it is difficult to see how the email could form part of the notification as such a way as would constitute an error in the content of the notification.
62. While the representations made in the email may have had the unfortunate effect of creating an impression in mind of those officers at the prison responsible for delivering the notice that the timeframe ran from the date which they delivered it, there was no evidence before the Tribunal that this was actually the effect of the email. As noted above there is also no evidence that the Applicant knew of the email or the erroneous timetable or that the acted in reliance on it in filing his application for review outside the statutory timeframes. In any event, the Tribunal accepts that the sending of the email did not alter the date on which the notice was taken to have been received.
63. The Tribunal notes, however, that if it is incorrect in its understanding of the application of regulation 2.55(9), unlike some of the cases in which this provision has been considered, on the evidence before the Tribunal the provision would have a material effect on the application for review. While there was not sufficient evidence before the Tribunal to determine the actual date on which the Notice was received it was clear that it was not received until 26 August 2019 (at the prison) or sometime thereafter (by the Applicant). Therefore, taking the earliest date for actual delivery of the document to be 26 August 2019, if the actual date of receipt was the date the Applicant taken to have received the Notice his application for review would have fallen within the nine day period of lodgment.
64. However, having regard to all the circumstances and to the relevant legislative provisions, the Tribunal finds the Applicant is taken to have received the document on 22 August 2019.
When was the Applicant required to lodge the application for review?
65. Section 500(6B) of the Migration Act requires that an application must be lodged within nine days after the day on which the Applicant was notified. The Respondent submitted that in this matter that date would have fallen on Saturday, 31 August 2019 and consequently the last day for the Applicant to lodge an application for review was the next business day, being Monday, 2 September 2019.
66. The Applicant did not challenge these submissions insofar as they related to the deemed date and the Tribunal accepts these submissions.
67. The Tribunal finds the application for review of the Delegate’s decision was required to be lodged on or before 2 September 2019.
Can the Tribunal extend the time for lodgment?
68. The Respondent submitted that subsection 500(6B) of the Migration Act unambiguously provides there is no power or discretion to extend the time for making an application. As the application for review is not filed within the nine day time limit the application for extension of time must be rejected. The Tribunal lacks jurisdiction to review the decision to cancel the Applicant’s visa in such circumstances.
69. The Tribunal accepts that it is apparent from s 500(6B) of the Migration Act that the Tribunal has no power to extend the time for lodgment of an application for review of the Delegate’s decision. The powers that the Tribunal normally has to extend time under the AAT Act are expressly taken away in this context by s 500(6B) of the Migration Act.
Conclusion
70. The Tribunal is mindful of the impact the deemed receipt provisions have had on the Applicant and on his capacity to lodge an application for review in a timely fashion, particularly having regard to the circumstances of his incarceration. While the impact of such provisions on the capacity of an applicant to meaningfully exercise their rights of review is a concern, in the Tribunal’s view it is not a matter which is within the scope of the Tribunal’s jurisdiction.
71. The Tribunal has found that the Notice to the Applicant of the delegate’s decision met the requirements of s 501G of the Migration Act.
72. The Tribunal has further fond that the Applicant was correctly notified of the cancellation decision by prepaid post under regulation 2.55 of the Regulations.
73. The Tribunal has also found that the Applicant is deemed to have received the document on 22 August 2019.
74. The Tribunal has found that the application for review of the Delegate’s decision was required to be lodged on or before 2 September 2019.
75. The Tribunal finds the application for review was lodged on 4 September 2019. Accordingly, the Tribunal finds that the application for review was lodged out of time and the Tribunal does not have jurisdiction to review the Delegate’s decision.
Decision
76. The Tribunal does not have jurisdiction to review the Delegate’s decision and the Tribunal dismisses the application for review filed on 4 September 2019 pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).
I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of
...........................[sgd].............................................
Associate
Dated: 02 October 2019
Date of hearing: 25 September 2019 Applicant: Self-represented Counsel for the Respondent: Arran Gerrard Solicitors for the Respondent: Australian Government Solicitor
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