Yelaswarapu v Minister for Immigration
[2012] FMCA 849
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| YELASWARAPU v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 849 |
| MIGRATION – Review of Migration Review Tribunal decision – Tribunal finding it lacked jurisdiction because of the late filing of the applicant’s review application – whether the applicant was properly notified by the Minister’s Department of the delegate’s decision considered – applicant providing incomplete residential and postal address on his visa application – whether the application was valid considered – applicant subsequently providing a document setting out his complete residential and postal address – failure by the Department to use that address. |
| Migration Act 1958 (Cth), ss.5, 47, 52, 65, 66, 338, 347, 494B, 494C, 494D Migration Regulations 1994 (Cth) |
| Bal v Minister for Immigration (2002) 189 ALR 566 Fernando v Minister for Immigration (2000) 97 FCR 407 Haque v Minister for Immigration & Anor [2010] FCA 346 Maroun v Minister for Immigration (2009) 112 ALD 424 Minister for Immigration v A (1999) 91 FCR 435 Minister for Immigration v Manaf (2009) 111 ALD 437 Minister for Immigration v SZIAI [2009] HCA 39 Murphy v Minister for Immigration (2004) 135 FCR 550 NAWZ v Minister for Immigration [2004] FCAFC 199 Singh v Minister for Immigration [2011] FCAFC 27 SZGJO v Minister for Immigration [2006] FCA 393 SZJDS v Minister for Immigration [2012] FCAFC 27 Xie v Minister for Immigration [2005] FCAFC 172 Zhang v Minister for Immigration (2007) 161 FCR 419 |
| Applicant: | PHANI KUMAR YELASWARAPU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1404 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 13 September 2012 |
| Date of Last Submission: | 29 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 21 December 2012 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms L Weston Minter Ellison |
ORDERS
A writ of certiorari shall issue, removing the record of the Migration Review Tribunal decision dated 1 June 2012 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Migration Review Tribunal to redetermine the application before it according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1404 of 2012
| PHANI KUMAR YELASWARAPU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As Corrected)
Introduction and background
This is an application to review a decision of the Migration Review Tribunal (the Tribunal). The decision is dated on its face 1 June 2012 and was certified on behalf of the Tribunal’s District Registrar on 4 June 2012. The Tribunal found that it had no jurisdiction in the matter by reason of the late filing of Mr Yelaswarapu’s review application.
The following statement of background facts is derived from the Minister’s written submissions filed on 10 September 2012.
Mr Yelaswarapu lodged an application for a Student (Temporary) visa online on 14 May 2011.[1] In response to questions in the online form Mr Yelaswarapu provided a purported postal address in Westmead, New South Wales which was the same as his purported residential address.[2]
[1] court book (CB) 1-6
[2] CB 2
By decision dated 6 December 2011 a delegate of the Minister refused to grant Mr Yelaswarapu a visa.[3] The delegate found that there was no evidence that Mr Yelaswarapu had maintained enrolment in an appropriate full time course of study as required and that he failed to meet condition 8516 and regulation 573.235 of the Migration Regulations 1994 (Cth) (the Migration Regulations).[4]
[3] CB 30-22
[4] CB 30-22
The delegate's decision was sent by registered post to Mr Yelaswarapu’s purported residential and postal address in Westmead under cover of a letter dated 6 December 2011 (the purported notification letter).[5] The registered post number for the item was 485381697016 and it was dispatched on 7 December 2011.[6] On 14 December 2011 the letter was returned to the Department of Immigration and Citizenship (the Department) with a note stating “RTS Insufficient Address”.[7]
[5] CB 16-19
[6] CB 16 and 61
[7] CB 27
The Department resent the delegate's decision to Mr Yelaswarapu at another address on Everton Road in Strathfield under cover of a letter dated 22 December 2011 (the re-notification letter).[8] The documents were sent by registered post and in a covering note the Department indicated that it had found that Mr Yelaswarapu was not correctly notified of the visa decision.[9] The registered post number for the item was 481035588013.[10] On 6 February 2012 the re-notification letter was returned to the Department with a box ticked indicating that the item had not been claimed.[11]
[8] CB 28
[9] CB 28
[10] CB 28
[11] CB 40
On 10 February 2012 the Department sent an email to Mr Yelaswarapu stating that the Department had assessed and finalised the visa application on 6 December 2011.[12] The email stated that due to an “administrative error” the decision letter had been also forwarded to the address on Everton Road in Strathfield and requested an updated postal address by 13 February 2012.[13] On 13 February 2012 the Department received an email requesting that the letter be forwarded to an address on Beresford Road, Strathfield.[14]
[12] CB 49
[13] CB 49
[14] CB 72
On 14 February 2012 a further item was sent to Mr Yelaswarapu in Strathfield by registered post with item number 484534360012 (the third notification letter).[15]
[15] CB 41 and 16
On 22 February 2012 the Tribunal received an application for review of the delegate's decision.[16]
[16] CB 42-48
By letter dated 20 April 2012 the Tribunal invited Mr Yelaswarapu to comment on the validity of his application.[17] The letter indicated that the Tribunal was of the preliminary view that the application had not been lodged within the relevant time limit, being 21 days from the day on which he was taken to have been notified of the delegate's decision on 15 December 2011.[18] The letter was dated 20 April 2012 and requested that Mr Yelaswarapu provide a response by 16 May 2012. [19]
[17] CB 73
[18] CB 73
[19] CB 73
On 15 May 2012 the Tribunal received a facsimile from a migration agent which enclosed a form appointing him as Mr Yelaswarapu's representative and authorised recipient.[20] In the covering letter the representative expressed surprise that when the purported notification letter was returned to the Department Mr Yelaswarapu was not contacted on his phone or by email.[21] Mr Yelaswarapu's application and an email record from Australia Post were enclosed.
[20] CB 91-92
[21] CB 89 and 92
The Tribunal’s decision
By decision dated 4 June 2011 the Tribunal found it did not have jurisdiction.[22] In the decision record, the Tribunal set out the factual background (at [16]-[19] of the decision).[23]
[22] CB 95-100
[23] CB 97-98
The Tribunal noted that an applicant is required to provide contact details to enable the Department to contact Mr Yelaswarapu and provide notices of decision and other matters that the Department is required to inform Mr Yelaswarapu of.[24] The Tribunal further noted that it is the responsibility of an applicant to ensure that the information provided is correct and that, where multiple contact details are provided, the Department is not required to send notifications by all methods.[25]
[24] CB 98
[25] CB 98 at [20]
At [21] of the decision record, the Tribunal stated:[26]
When the Department sent the delegate's decision of 6 December 2011 to the applicant the Department complied with the requirements to provide that decision to the applicant by sending it to his postal address in accordance with the contact details he provided. The subsequent emails and attempts to contact the applicant were done by the Department to ensure that he did receive notice of the decision. They were not required to be done by the Department as the Department had complied with the requirements of the Act to send the notice of the decision to his postal address.
[26] CB 98 at [21]
The Tribunal found that the contents of the delegate's decision notice dated 6 December 2011 complied with the requirements of s.66(2).[27] It was satisfied that the address on the notice was the last residential address provided to the Minister by Mr Yelaswarapu at the relevant time (at [23])[28] and noted that the material before it indicated that Mr Yelaswarapu had not provided the Minister with written notice of an authorised recipient under s.494D of the Migration Act 1958 (Cth) (the Migration Act) (at [24]).[29]
[27] CB 98 at [22]
[28] CB 98-99
[29] CB 99
The Tribunal found that the notice had been dispatched within three working days of the date of the letter to the correct address, in accordance with ss.66(1) and 494B(4), and that Mr Yelaswarapu was therefore taken to have received it on 15 December 2011, being seven working days after the date of the notice, even though it was returned.[30]
[30] CB 99 at [25]
The Tribunal noted that the delegate had purported to re-notify Mr Yelaswarapu of the decision but found that because the decision notification on 6 December 2012 was effective, any further notifications were of no legal consequence and did not alter the prescribed period for review which ran from the first notification.[31]
[31] CB 99 at [26]
The Tribunal had regard to the submissions provided by Mr Yelaswarapu's agent on 15 May 2012 (which suggested, among other things, that he should have been notified by email), but found that the methods in s.494B are alternatives as regulation 2.16(3) only requires the Minister to communicate by one of the methods and that there was no obligation to make further enquiries as to Mr Yelaswarapu's address when the letter was returned.[32]
[32] CB 100 at [29]
For these reasons, the Tribunal found that Mr Yelaswarapu had been properly notified of the delegate's decision and was taken to have been notified on 15 December 2011.[33] Consequently, it considered that the prescribed period of 21 days within which to lodge the application for review ended on 5 January 2012. The Tribunal concluded that as it had not received the application until 22 February 2012, after the prescribed period had expired, it had no power to accept the application and it had no jurisdiction.[34]
[33] CB 100 at [30]
[34] CB 100 at [30]-[31]
The judicial review application
These proceedings began with a show cause application filed on 27 June 2012. Mr Yelaswarapu continues to rely upon that application. The application contains a single ground of review:
1. Against the decision made by MRT on 1st of June 2012.
When the matter came before me for first court date directions on 6 August 2012, and after hearing from the parties, I made the following notation on the orders made on that day:
The Court notes that the allegation raised in the application filed on 27 June 2012 is that the Tribunal committed jurisdictional error in finding that it had no jurisdiction to review the decision of the Minister’s delegate.
There has been no doubt since then that the only issue between the parties is whether the Tribunal was correct in finding that it lacked jurisdiction to deal with Mr Yelaswarapu’s review application.
I have before me as evidence the court book filed on 15 August 2012. It was not clear, however, that the court book contained a complete record of communications between Mr Yelaswarapu and the Minister’s Department about his visa application. Given that the correctness of the Tribunal’s finding that it lacked jurisdiction appeared likely to depend upon the answer to the question whether Mr Yelaswarapu had been properly notified of the decision of the Minister’s delegate, I ordered the Minister to file and serve a supplementary court book. That was done on 2 October 2012.
I also have before me as evidence an affidavit by Laura Frances Weston made on 13 September 2012 dealing with the second attempt by the Minister’s Department to notify Mr Yelaswarapu of the delegate’s decision.
In addition to the Minister’s written submissions, I received as a submission Mr Yelaswarapu’s affidavit filed on 27 June 2012 with his application. I also invited additional written submissions from the parties. In purported response to that invitation, Mr Yelaswarapu filed a further affidavit on 20 November 2012 explaining his provision of address details to the Department in March 2011. Additional submissions on behalf of the Minister were filed on 29 November 2012. The Minister in those submissions stated that there was no objection to receipt of Mr Yelaswarapu’s additional affidavit, and I do receive it.
Consideration
The Minister contends that the purported notification letter sent to Mr Yelaswarapu on 7 December 2011 was sufficient notification for the purposes of the Migration Act and the Migration Regulations and that, accordingly, the Tribunal was correct in finding that it lacked jurisdiction. Relevantly, the Minister submits:
The Applicant applied to the Tribunal for review of a decision covered by section 338(2) of the Act and, pursuant to section 347(1)(b)(i) of the Act, that application had to be made within 'the prescribed period.' As at the date of the delegate's decision Regulation 4.10 of the Migration Regulations 1994 (the Regulations) prescribed that for the purposes of section 347(1)(b) of the Act, the period in which an application for review must be given to the Tribunal started when the Applicant received notice of the decision and ended at the end of 21 days after the day on which that notice is received.
Section 66(1) of the Act provides that when the Minister grants or refuses to grant a visa, he or she must notify the applicant of the decision in the prescribed way. Regulation 2.16 of the Regulations prescribes the way of notifying a person of a decision to grant or refuse to grant a visa for subsection 66(1).
… Relevantly, sub-regulation 2.16(3) stipulates that the Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods prescribed in section 494B of the Act. The regulation also notes that if a document is given in this manner the person is taken to have received it at the time specified in section 494C of the Act.
One of the methods prescribed in section 494B of the Act is dispatch by prepaid post or other prepaid means (see section 494B(4) of the Act). The First Respondent submits that the notification letter dated 6 December 2011 complied with the procedural requirements prescribed in section 494B(4) of the Act for the reasons that follow:
(a)The letter was dispatched on 7 December 2011, which was within three days of the day of the letter, in compliance with subsection 494B(4)(a).[35]
[35] CB 16 and 61
(b)The letter was dispatched by registered post, which is a method of delivery which has been found to fall within the meaning of 'prepaid post' for relevant purposes: Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172. Accordingly, the letter was sent in compliance with subsection 494B(4)(b).[36]
[36] CB 16 and 61
(c)In the online visa application form submitted by the Applicant on 14 May 2011 he provided 'UNIT, 35-37 LYDBROOK STREET WESTMEAD New South Wales 2145' as both his residential address and his postal address.[37]
[37] CB 2
There is no evidence that the Applicant provided any other address to the Department for the purposes of receiving documents before the notification letter was drafted on 6 December 2011 or dispatched on 7 December 2011.
Accordingly, the First Respondent submits that when the letter was sent to the Applicant's Westmead address, that address constituted the last residential address provided by the Applicant for the purpose of receiving documents, in compliance with subsection 494B(4)(c)(ii).
The First Respondent notes that the Department's records indicated that 'DEST'[38] provided an address for the Applicant on 5 December 2011.[39] However, subsection 494B(4)(c)(ii) clearly refers to the last residential address 'provided by the Applicant' for the purpose of receiving documents. There is no evidence that demonstrates that the Applicant provided the address on Everton Road or any other address to the Department as his residential or postal address after he lodged the application for a visa, until his email on 13 February 2012 where he provided another address on Beresford Road.[40]
[38] DEST is understood to be an acronym for the Department of Education, Science and Training which became the Department of Education, Employment and Workplace Relations in 2009
[39] CB 67
[40] The email is at CB 72
The First Respondent further submits that the 're-notification' of the delegate's decision, by way of correspondence sent on 22 December 2011 and 14 February 2012, did not have any effect on the validity of the first notification or the period within which a valid application to the Tribunal could be made. As Sunberg J held in Minister for Immigration and Citizenship v Manaf (2009) 111 ALD 437, where a person had been validly notified of a refusal to grant a visa application, a subsequent re-notification does not 'reset the clock' for the purposes of any review period.[41] His Honour considered this to be consistent with the Full Federal Court's approach in Zhang v Minister for Immigration and Citizenship (2007) 161 FCR 419.
[41] See Minister for Immigration and Citizenship v Manaf (2009) 111 ALD 437 at [48]-[51] per Sunberg J. See also Singh v Minister for Immigration & Citizenship [2011] FCAFC 27
The applicant's migration agent submitted to the Tribunal that the delegate should have contacted the Applicant by email or mobile phone once the first letter was returned. However, the First Respondent submits that the Tribunal was correct in finding that the delegate was only required to communicate by one of the methods specified in section 494B of the Act and that there is no obligation to use a multiplicity of those methods. This has been confirmed by the Federal Court in various cases including Maroun v Minister for Immigration and Citizenship (2009) 112 ALD 424 and Haque v Minister for Immigration and Anor [2010] FCA 346 per Jagot J at [65].
For completeness, the First Respondent notes that it is well established that it is an applicant's responsibility to inform the Department of any change in contact details: Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407.
For the above reasons, the First Respondent submits that the notification letter dated 6 December 2011 complied with the requirements in section 494B. As the letter and its enclosures contained the necessary information required by section 66(2) of the Act, the First Respondent submits that it therefore [constituted] valid notice for the purposes of section 66(1) of the Act. As such, for the purposes of the period for review set by section 347(1)(b)(i) of the Act, the First Respondent submits that time should be calculated from the notification letter dated 6 December 2011.
Regulation 4.10 prescribed that for the purposes of section 347(1)(b) of the Act, the period in which an application for review of an MRT-reviewable decision must be given to the Tribunal started when the Applicant received notice of the decision and ended at the end of 21 days after the day on which that notice is received.
Pursuant to section 494C(4)(a) of the Act, read in conjunction with section 5(23) of the Act,[42] the Applicant is deemed to have received the notification letter dated 6 December 2011 seven working days after the date of the document (that is, by 15 December 2011). This is so irrespective of when the document was actually received, or whether it was received at all. As Spender J found in Murphy v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 135 FCR 550 at ([14]):
The person is ‘taken to have received the document’, in the circumstances of this case, seven working days after the date of the document. In my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification.
As the Tribunal correctly found, 21 days after the day on which that notice is received ended on 5 January 2012. The application for review was received by the Tribunal on 22 February 2012, which was approximately 44 days after the period for review had expired.
In these circumstances, the First Respondent submits that the Tribunal did not err in finding that it did not have jurisdiction to review the application.
[42] Section 5(23) states that in the Act “is taken”, when followed by an infinitive form of a verb, has the same force and effect as 'is deemed' when followed by the infinitive form of that verb
For his part, Mr Yelaswarapu is aggrieved that he has been disadvantaged by the fact that his visa application did not disclose a complete address and that he was not notified by email of the delegate’s decision. He asserts that the Department was aware of his correct residential address from health insurance records provided in March 2011 to the Department.
The difficulty I have with the Minister’s submission is that it is not apparent to me that the visa application as originally made by Mr Yelaswarapu was a valid application, although it appears to have been validated shortly after it was made (see below). The residential and postal address provided by Mr Yelaswarapu in his online application was:
UNIT, 35-37, LYDBROOK STREET WESTMEAD New South Wales 2145 AUSTRALIA[43]
[43] In its decision at [16] (CB 97) the Tribunal misquoted the address given by Mr Yelaswarapu by deleting the commas he used. That misquotation created a false impression that he had supplied a complete address
It appears that Mr Yelaswarapu made an error in not including his unit number in providing his residential address and that the error was replicated in the part of the form giving his contact details. A simple reading of the address provided discloses to my satisfaction that Mr Yelaswarapu provided as his residential and postal address an unspecified unit in a block of flats in Lydbrook Street, Westmead. It is unsurprising, therefore, that the purported notification issued by the Minister’s Department was returned by Australia Post as insufficiently addressed.
Regulation 2.07 of the Migration Regulations provides:
(1)For the purposes of sections 45 and 46 of the Act (dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1:
(a) the approved form (if any) to be completed by an applicant;
(b) the visa application charge (if any) payable in relation to an application;
(c) other matters relating to the application.
(3) An applicant must complete an approved form in accordance with any directions on it.
(4) An application for a visa that is made using an approved form is not a valid application if the applicant does not set out his or her residential address:
(a) in the form; or
(b)in a separate document that accompanies the application.
I raised with the parties at the hearing of this matter the question of whether Mr Yelaswarapu’s application was a valid one in the absence of a residential address at which he could be contacted and whether, if the application was not valid at the time it was made online, it became valid once such an address was provided. The Minister contends that Mr Yelaswarapu’s application was a valid one:
Regulation 2.07(4) of the Regulations provides that an application for a visa that is made using an approved form is not a valid application if the Applicant does not set out his or her residential address in the form or in a separate document that accompanies the form. Section 47(3) of the Act makes it clear that the Minister 'is not to consider an application that is not a valid application'. Section 65(1) of the Act makes it clear that the Minister can only consider the application on its merits if a valid application for a visa has been made. If no valid application has been made then the Minister has no power under the Act to consider the application on its merits and is limited to determining that the application has not been validly made. Section 52(3A) of the Act stipulates that an applicant must tell the Minister the address at which he or she intends to live while the application is being dealt with.
The First Respondent submits that provided an address (other than a PO Box address) is included in the application in response to the question ‘your residential address’, the application will satisfy the address requirement contained in regulation 2.07(4) of the Regulations. The terms 'address' and 'residential address' are not defined in the Act or Regulations. There is no requirement that the Minister or his officers check every address that is provided by a visa applicant, or to verify that the address provided is where the Applicant resides, before an application would be accepted as valid. The First Respondent submits that to impose such an obligation would be inconsistent with the statutory framework, which places the onus on an applicant to provide their own contact details to the Department (cf Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407). The Applicant was put on notice of this onus by the internet application form which stated 'do you acknowledge that you must immediately advise this Department if you become aware that any information provided in this form is incorrect or there is a change in your circumstances at any time', to which the Applicant responded 'yes'.[44]
Even if the address provided by an Applicant were found not to be correct, the First Respondent submits that this would not invalidate the application as Regulation 2.07 requires substantial compliance with the directions on the form, not strict compliance (cf Bal v Minister for Immigration & Multicultural Affairs (2002) 189 ALR 566; NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199; SZGJO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 393). This position is supported by reference to the Full Federal Court's judgment in SZJDS v Minister for Immigration and Citizenship [2012] FCAFC 27, in which Rares, Cowdroy and Jessup JJ held that:
'Two different scenarios can arise where legislation requires a specific form to be used to make an application... The second scenario arises where an applicant uses the prescribed form but fails in some respect to complete it accurately or fully. In this instance, the failure does not necessary result in an invalid application. That is because of the operation of s 25C of the Acts Interpretation Act 1901 (Cth) which provides that where '... an Act prescribes a form, then unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient'. [emphasis added]
The First Respondent submits that Parliament could not have intended that any deficiencies in an address would invalidate the application. Such an approach would place an impossible burden on officers dealing with applications and, furthermore requiring strict compliance in an application could well disadvantage some applicants. In the words of Merkel J, 'such an approach would be a triumph of form over substance' (Minister for Immigration & Multicultural Affairs v A (1999) 91 FCR 435 at [43]).
Accordingly, the First Respondent submits that the visa application submitted by the Applicant was valid.
[44] CB 6
In my view, Mr Yelaswarapu’s visa application was not valid at the time it was made online because he had not set out his residential address. A “residential address” is an address which purports to identify where a person is living. The reference to an unspecified unit in a block of flats does not disclose a residential address.
I disagree with the Minister’s contention that requiring Departmental officers to check whether Mr Yelaswarapu has provided a residential address at which he or she can be contacted so as to constitute a valid application is a “intolerable burden”. First, the Regulations impose the requirement that a valid application must include a residential address. Secondly, even a cursory glance at the application provided online should have drawn to the attention of the Department that the residential address provided was an unspecified unit in a block of flats. On any view, an address which does not identify where an applicant is living is not a “residential address”. The reference simply to a block of flats without specifying the unit number does not disclose where an applicant is living. The provision of a residential address to which correspondence cannot be sent (because it will be returned by Australia Post as insufficiently addressed) does not, in my view, constitute substantial compliance with the requirement to provide a residential address.
I am satisfied that Mr Yelaswarapu made a mistake in completing his online application and that he did not intentionally conceal his residential address. About a month after he completed his online application, Mr Yelaswarapu provided to the Minister’s Department details of a policy of health insurance taken out by him.[45] That document set out Mr Yelaswarapu’s complete residential and postal address, namely unit 2, 35-37, Lydbrook Street (or Drive), Westmead, New South Wales, 2145. In my view, the visa application became a valid application once that document was provided.
[45] CB 7 the OSHC Worldcare document
The Minister contends that, as the visa application was valid, there was no deficiency in Mr Yelaswarapu’s residential address to be remedied. The Minister further submits that the complete details included in the OSCH Worldcare document cannot be taken to be a notice of change of address for service for the purposes of subsection 494B(4)(c)(i) of the Migration Act. I agree. In providing the OSHC Worldcare document to the Minister’s Department, Mr Yelaswarapu was not notifying a change of address for service. He was, however, providing a complete residential address in a separate document to accompany his visa application for the purposes of regulation 2.07(4). I do not read that provision as requiring the simultaneous provision of a complete residential address with the visa application. A document may “accompany” the visa application if provided at some time before a decision on the visa application is made. The document was sent to support Mr Yelaswarapu’s visa application and, in my view, “accompanied” it in the sense that it travelled with the application and supported it.
If Mr Yelaswarapu was aware that he had made a mistake in his online application he would no doubt have informed the Minister’s Department more clearly of his correct address than by the provision of a health insurance document. Nevertheless, there was before the Minister’s Department at the time the delegate made his or her decision, a purportedly accurate and complete residential and postal address for Mr Yelaswarapu. The Department simply had to include the unit number provided by Mr Yelaswarapu as part of the address he had provided online.
At no stage did the Minister’s Department notify the delegate’s decision to Mr Yelaswarapu at his complete residential and postal address. The purported notification letter perpetuated the initial omission by Mr Yelaswarapu. The re-notification letter was not sent to any address provided by Mr Yelaswarapu but, rather, to an address provided by the Education Department.
In my view, the visa application by Mr Yelaswarapu was not a valid visa application until he provided an identifiable residential address, which he did when he provided a copy of his health insurance policy (the OSHC Worldcare document). I am further of the view that if the Minister’s Department chooses to correspond with an applicant to an address which is insufficient for the purpose of making a valid application, rather than other addresses which are available to the Department to use for the purposes of correspondence, the Department has not complied with its notification requirements.
In his further written submissions the Minister maintains that the first purported notification of the delegate’s decision was a valid notice for the purposes of s.66(1) of the Migration Act. I disagree. Like the Tribunal, the Minister’s Department (while not under a general obligation to inquire) may come under an obligation to make an obvious inquiry about a critical fact that could easily be made.[46] When the first notification letter was returned to the Department insufficiently addressed, the Department took the trouble to attempt to find an alternative address from the Education Department and then, later, by contacting Mr Yelaswarapu to ask for a different address. It would have been a simple matter for the Department to check its own file to see if the obviously missing unit number could be identified from any documents on the file. That was not done. Even if I were wrong on the question of whether Mr Yelaswarapu’s visa application was valid when first made, the Minister’s delegate in my view erred by not notifying the decision to Mr Yelaswarapu’s complete residential address, which was available on the Department’s file.
[46] Minister for Immigration v SZIAI [2009] HCA 39 at [25]
In my view, Mr Yelaswarapu was not lawfully and properly notified of the delegate’s decision until 14 February 2012 when the Department notified Mr Yelaswarapu of the delegate’s decision in the third notification letter addressed to a new residential and postal address provided by Mr Yelaswarapu. His application to the Tribunal was submitted well within the limitation period for such an application and the Tribunal was in error in finding that it lacked jurisdiction. Plainly, the Tribunal’s decision involved a jurisdictional error. Accordingly, Mr Yelaswarapu should receive relief in the form of the constitutional writs of certiorari and mandamus. I will so order.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 12 September 2013
CORRECTION
1. “Yelaswarparu” has been replaced with “Yelaswarapu”.
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