Young v Minister for Home Affairs and Anor (No.2)

[2020] FCCA 3077

FEDERAL CIRCUIT COURT OF AUSTRALIA

YOUNG v MINISTER FOR HOME AFFAIRS & ANOR (No.2) [2020] FCCA 3077

Catchwords:
MIGRATION – Administrative Appeals Tribunal – special category (temporary) (Class TY) subclass 444 visa – whether notification of the primary decision by facsimile was unreasonable – whether notification of the primary decision complied with section 127(2) of the Migration Act 1958 by failing to specify under which Part of the Act a review was available – notification of the primary decision did not comply with section 127(2) – application allowed – matter remitted with declaration – costs awarded to the applicant.

Legislation:
Migration Act 1958, ss.66, 116, 127(2)
Migration Regulations 1994, r 2.55

Cases cited:
BMY 18 v Minister for Home Affairs [2019] FCAFC 189
DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64
EFX17 v Minister for Immigration and Border Protection [2019] FCAFC 230
Parata v Minister for Home Affairs [2020] FCCA 1582
Singh v Minister for Immigration and Border Protection [2020] FCAFC 31
Yu v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 912

Applicant: ANDREW WAYNE YOUNG

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 464 of 2019

Judgment of: Judge Blake

Hearing date: 24 August 2020

Date of last submission: 24 August 2020

Delivered at: Melbourne

Delivered on: 13 November 2020

REPRESENTATION

Counsel for the Applicant: Mr Guo

Solicitors for the Applicant: Carina Ford Immigration Lawyers

Counsel for the Respondents: Mr Goodwin

Solicitors for the respondents: Mills Oakley Lawyers

ORDERS

THE COURT DECLARES THAT

1. The Applicant has not been notified under section 127 of the Migration Act 1958 of the decision of a delegate of the Minister made on 17 March 2016.

THE COURT ORDERS THAT

1. A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 30 January 2019.

2. A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine the application for review according to law.

THE COURT ORDERS BY CONSENT THAT

1. The First Respondent pay the Applicant’s costs of the proceeding fixed in the sum of $11,211.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 464 of 2019

ANDRE WAYNE YOUNG

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 30 January 2019. In that decision, the Tribunal found that it did not have jurisdiction in the matter.

2. The review application to the Tribunal arose out of a decision made by a delegate of the Minister (‘delegate’) to cancel the Applicant’s Special Category (Temporary) (Class TY) subclass 444 visa (‘visa’).

3. For the reasons that follow, I have decided to allow the application for review.

Background

1. The Applicant is a New Zealand national. The Applicant had been the holder of the visa since 2004. On 11 December 2015, the Applicant was charged with a range of criminal offences. The Applicant also had previous convictions for various criminal offences.

2. On 18 February 2016, a delegate of the Minister wrote to the Applicant notifying him that pursuant to section 116 of the Migration Act 1958 (‘Act’) the Minister intended to cancel the visa (Court Book 17 – 20). The Applicant was given the opportunity to provide a response as to why the visa should not be cancelled. The response was due five working days after he was taken to receive the letter.

3. The letter was sent by facsimile to the Applicant on 18 February 2016 (Court Book 15). At the time, the Applicant was held in Port Phillip Prison. Enclosed with the letter was an acknowledgment for the Applicant to sign. The acknowledgment signed by the Applicant,  dated 22 February 2016, was returned to the Department (Court Book 22).

4. The Applicant did not provide a response to the notification of intention to cancel the visa. Subsequently, on 17 March 2016, a notification of the decision to cancel the visa was sent by facsimile to the Applicant at Port Phillip Prison (‘delegate’s decision’) (Court Book 28 – 30). The decision enclosed an acknowledgment of receipt for the Applicant to sign (Court Book 36).

5. On 28 October 2016, the Applicant was sentenced to 3 years imprisonment with 18 months as a non-parole period in respect of various criminal offences.

6. In 2018, the Applicant engaged legal representation with respect to the cancellation of his visa. On 16 November 2018, the delegate’s decision was sent again to the Applicant’s legal representative. On 3 December 2018, the Applicant applied to the Tribunal for review of the decision.

7. On 2 January 2019, a Tribunal officer wrote to the Applicant stating that she was of the view the application for review to the Tribunal was not lodged within time, being seven working days from which the Applicant was taken to have been notified of the decision (Court Book 215). The Applicant was asked to make any comment on whether his application was valid by 16 January 2019.

8. The Applicant responded on 16 January 2019. The response comprised a written submission, an assessment order by Dr Rupali Kashyap dated 11 December 2015, a report of Dr Kashyap dated 14 December 2015 and other material.

9. On 30 January 2019, the Tribunal found that it did not have jurisdiction to hear the matter (‘Tribunal decision’). The Applicant applied to this Court for judicial review of that decision on 20 February 2019.

10. On 27 July 2020, the Applicant filed an Amended Application (‘Application’) and an outline of submissions. On 10 August 2020, the Minister filed an outline of submissions.

11. On 12 August 2020, the Applicant filed a Notice to Produce. The Notice to Produce sought that the Minister produce to the Court at the hearing on 24 August 2020 the following:

    ‘All documents from Victoria Police to your Department in relation to the Applicant, received by your Department after the email between your Department and Victoria Police on 5 February 2016 at 11.30am (being the email that appears at page 14 of the Court Book filed on 13 March 2019).’

12. At the hearing of this matter, the Minister’s Counsel informed the Court that the Minister did not have any documents to produce pursuant to the Notice to Produce. 

The Application for review

1. There is only one ground of review in the Application, which is as follows:

   ‘The Tribunal's decision that it had no jurisdiction was a result of a misunderstanding of the law, in that the time within which an application needed to be lodged had not actually commenced to run.

   Particulars

   (a) The Applicant had not received any notification of the primary decision that was of the kind prescribed by s 127(2) of the Migration Act 1958 (Cth) (the Act). Accordingly, and contrary to the Tribunal's reasons, the time referred to in reg 4.10 of the Migration Regulations 1994 (Cth) (the Regulations) within which he was required to lodge his application for review had not yet commenced to run.

   (b) The purported notification was not of the kind prescribed by s 127(2) of the Act, because of non-compliance with par 127(2)(b) of the Act, or because the choice under reg 2.55 of the Regulations by which notification was given was a legally unreasonable choice.’

2. The Applicant advances two submissions under the single ground of review. The first is that notification was not given pursuant to section 127(2) of the Act because the notification did not comply with subparagraph (b) of that subsection, that is, the notice failed to specify whether a review was available under Part 5 or Part 7 of the Act. The second point raised by the Applicant is that the notification is not valid because the notice was given in a legally unreasonable way.

Non-compliance with section 127(2)(b)

1. Section 127(2) relevantly provides as follows:

   ‘127 Notification of decision

   (1) When the Minister decides to cancel a visa, he or she is to notify the visa holder of the decision in the prescribed way.

   (2) Notification of a decision to cancel a visa must:

   (a) specify the ground for the cancellation; and

   (b) state whether the decision is reviewable under Part 5 or 7;

   and

   (c) if the former visa holder has a right to have the decision reviewed under Part 5 or 7 state:

   (i) that the decision can be reviewed; and

   (ii) the time in which the application for review may be made; and

   (iii) who can apply for the review; and

   (iv) where the application for review can be made.

   (3) Failure to give notification of a decision does not affect the validity of the decision.’

2. It is common ground that the notice given to the Applicant contained at Court Book 28 does not state whether ‘the decision is reviewable under Part 5 or 7’.  Rather, the notification simply provides that ‘The decision to cancel your visa can be reviewed.  You may make an application for merits review of this cancellation decision with the Administrative Appeals Tribunal (AAT)’.

3. The Applicant contends, among other things, that the notification is not valid because of the defect identified above.  Among other things, the Applicant relies on the recent decision of Riethmuller J of this Court in Parata v Minister for Home Affairs [2020] FCCA 1582 (‘Parata’) in support of that proposition.  The Minister contends, among other things, that Parata is plainly wrongly decided, and the Court is required to follow the decision of Emmett J in Yu v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 912 (‘Yu’).

4. It is important prior to turning to the authorities referred to above to have regard to the words of the Act. First, the language used by the legislature in section 127(2)(b) is clear and mandatory: a notice ‘must’ contain the matters set out in subparagraphs (a) to (c) of section 127(2). Second, the notice must ‘state’ whether the decision is reviewable under Part 5 or Part 7.

5. Parata was a case in which a visa holder received notice of the cancellation of his visa.  The applicant in Parata contended that section 127(2)(b) had not been complied with because, as in the present matter, the notice failed to specify whether the relevant decision was reviewable under either Part 5 or Part 7 of the Act. As a result, the applicant in Parata contended that he had not been notified in accordance with section 127 of the Act. Riethmuller J examined the statutory provision and concluded that section 127(2)(b) had not been complied with, and therefore that the applicant had not been notified in accordance with the section. In reaching that conclusion, Riethmuller J examined the history of the section, the amendments to it, the grammatical differences arising from the amendments and the Explanatory Memoranda. Riethmuller J also stated, at [17] that in his view, a ‘precise approach to the provision is required, as it is part of a scheme that provides very strict time limits’.

6. Similarly to the present matter, Riethmuller J was urged to follow the decision in Yu. His Honour rejected that course.  Riethmuller J observed that the reasoning in Yu was limited. His Honour also had regard to the decision of a Full Court of the Federal Court of Australia in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 (‘DFQ17’), and considered that the principles enunciated there by the Full Court at [57] to [58] were applicable to the case before him. His Honour considered himself bound by the decision in DFQ17.

7. Like Riethmuller J, I have considered both Yu and DFQ17. Yu concerned the provision of a notice, and whether the content of the notice satisfied section 127 of the Act, the same provision under consideration in this matter. Among other things, the applicant in Yu submitted that the requirements of section 127 of the Act were not satisfied because the notification ‘did not state, in terms, that the decision was reviewable under Part 5 or Part 7’: see Yu at [17]. Emmett J stated at [19] that he was not persuaded that ‘failure to comply with s 127 rendered void any notification to the applicant of the decision to cancel his visa’. 

8. It is clear that Emmett J dealt with and disposed of the very argument that is put in this proceeding. However, it is difficult to disagree with Riethmuller J’s observations in Parata that, first, Yu ‘provides the most limited reasoning’ and second, that it does not appear that the argument with respect to the word ‘state’ was put. Finally, the reasoning in Yu, as recognised by Riethmuller J, does not accord with the reasoning in DFQ17.

9. DFQ17 is not a decision that concerns section 127 of the Act. Rather, it concerns section 66 of the Act. Under section 66(2)(d), notification of a decision to refuse an application for a visa must, if the applicant has a right to have the decision reviewed under Part 5 or Part 7, ‘state… the time in which the application for review may be made’.  The Full Court was required to consider in the context of that case what the word ‘state’ meant.  Like the present proceeding, the notification to an applicant was important given the strict time limits that applied in relation to seeking any review. Ultimately, Perram J held that the relevant notification failed to convey clearly the information that any review application had to be made by the particular date. As a result, the letter did not ‘state’ the time in which a review application may be made.

10. In reaching the conclusion above, Perram J stated as follows:

    ‘[57] Regardless of which of these three definitions most comfortably fits the language of s 66(2), they all have a flavour of precision, formality or definitiveness. Those meanings are consonant, so it seems to me, with the observations made by Allsop J in Zhan as to how the scheme of the Act operates in relation to time limits. The regime creates a strict review system but requires certain critical information to be provided to an applicant. That scheme would be undermined were the information provided under s 66(2) either less than complete or less than clear.

    [58]  I conclude that when s 66(2) uses the word ‘state’ it means that the notification must set out the information in each of the subsections in a way which is not only complete (as Zhan holds) but clear as well. This required the letter of 3 February 2017 annexed below clearly to convey to the Appellant that the period in which she could seek review ended on 13 March 2017.’

11. In respect of the matters above, the Minister contends as follows. First, Yu is directly on point and is binding authority on this Court.  Second, DFQ17 concerns a different statutory provision. Third, the outcome in DFQ17 arose in circumstances where the applicant in that matter was required to consider a range of information across different documents and different pages in order to understand his review rights.  That, it was submitted, is a unique set of facts, not replicated in the present proceeding.  Fourth, Parata is plainly wrong given the above and is the subject of an appeal.  Further, the Minister contends that the failure to ‘state’ the applicable Part of the Act under which a review may be pursued was immaterial. The only differences between the two Parts, it is said, are in respect of fees and also timing.

12. The Minister sought to illustrate the submissions he made in relation to the distinguishing features of DFQ17 by reference to two other authorities.  BMY18 v Minister for Home Affairs [2019] FCAFC 189 is a Full Court decision. The Full Court was required to consider whether a notification pursuant to section 66 of the Act stated ‘the time in which the application for review may be made’. The Court distinguished DFQ17 and found it was possible to determine the time within which the review application may be brought. The Court considered any complexity was the fault of the legislation, and not of the author.  Similarly in Singh v Minister for Immigration and Border Protection [2020] FCAFC 31, a differently constituted Full Court distinguished DFQ17 given the content of the notice it had before it.

13. I accept that the factual circumstances in DFQ17 appear unique. It seems clear that it was not straightforward for the applicant in that matter to ascertain the time by which the application for review was to be made.  I also accept that DFQ17 has been distinguished by differently constituted Full Courts on the facts before them.  However, the Full Court in DFQ17 made important observations about the precision, formality and definitiveness of the provisions under consideration there, and the manner in which the scheme of the Act operates in relation to time limits. Those comments apply with equal force to the provisions presently under consideration. Insofar as the Minister’s other submissions are concerned, I do not regard matters such as fees as immaterial. The payment of the correct fee is a precondition to engaging the jurisdiction of the Court. Further, as I have already noted, I agree with Riethmuller J’s observations about the reasoning in Yu.

14. When all of the above matters are considered, I have reached the same conclusion as Riethmuller J. I respectfully adopt His Honour’s reasoning. An applicant is entitled to know. with some precision and clarity, given the tight timeframes in which review actions are to be initiated, what his or the review rights are. Section 127(2)(b) makes clear not only that the requisite information ‘must’ be provided.  It also makes clear that the notification must ‘state’ which Part of the Act applies. Like Riethmuller J, I am of the view that I am required to follow the Full Court authority in DFQ17 over the decision in Yu, for the reasons I have articulated above. 

15. Accordingly, for the above reasons, I find that the notification does not comply with section 127(2) of the Act. The Applicant has therefore not been notified in accordance with the section and the time limit for review is yet to commence to run.

Notice not given in a legally reasonable way

1. The Applicant also contends that the notification was not valid because it was not given in a legally reasonable way.

2. The Applicant’s submission directs attention to regulation 2.55 of the Migration Regulations1994 (‘Regulations’). Regulation 2.55 deals with the giving of documents relating to the proposed cancellation, cancellation or revocation of cancellation of visas. Relevantly, subparagraph (3) of regulation 2.55 sets out a number of ways in which the Minister may give a document.  Further, subparagraph (9) sets out the circumstances in which a person is deemed to have received a document given by one of the methods specified in regulation 2.55.

3. The first matter to observe about Regulation 2.55(3) is that it does not provide a single method as to how the Minister is to deliver the relevant notification. Rather, the Minister is confronted with a suite of options and the Minister ‘must’ give the document in one of the ways specified.  While the word ‘must’ is used, it seems to me that what follows is a suite of options from which the Minister may select one to notify an applicant.  There is therefore a discretion as to which method of notification is selected. To the extent that the Minister contends otherwise, I do not accept that contention.

4. The question then arises as to whether there was any unreasonableness in the circumstances of this case by reason of the Minister choosing to transmit the notification by fax. The Applicant relies on a decision of the Full Court of the Federal Court of Australia in EFX17 v Minister for Immigration and Border Protection [2019] FCAFC 230 (‘EFX17’) in support of the contention that is appropriate to look at the surrounding circumstances.  I am not persuaded that the Applicant’s case is advanced by the decision in EFX17. The Full Court there was considering the issue in the context of section 501CA(3)(a) of the Act. That section relevantly provides that the Minister must ‘give the person, in the way that the Minister considers appropriate in the circumstances’ written notification of the decision to cancel the Visa.  That statutory mandate, requiring the Minister to consider what is appropriate in the circumstances, does not exist in the present case.

1. While EFX17 does not assist the Applicant, it follows from what I have said above that in order to determine whether the selection of a particular means of notification is unreasonable, the circumstances must be considered.

2. In the present matter, the notification was given by the Minister by fax, to the last fax number address known to the Minister.  The Applicant contends, effectively, that the decision by the Minister to send the notification by fax was unreasonable in the circumstances.

3. The circumstances which the Applicant claims give rise to the unreasonableness are as follows.  First, it is said that the Court should infer in all of the circumstances that the Minister was aware of the incapacity of the Applicant.  Among other things, the Applicant points to the failure of the Minister to call anyone from the Department about the actual state of knowledge of the Applicant’s mental health.  Further, the Applicant points to various documents within the Court Book that demonstrate enquiries were made of the Victoria Police, and asks the Court to infer that some information was passed on to the Department about the Applicant’s mental health.  The Applicant also points to an assessment conducted for Victoria Police in which the Victorian Institute of Forensic Medicine concluded that the Applicant was ‘unfit to be interviewed’ at the time of his apprehension.

4. I am not persuaded that in the circumstances of this case, the Minister’s decision to send the notification by fax was unreasonable.  The Minister had utilised the fax machine to send to the Applicant a notification of intention to cancel the visa. That communication had been sent relatively recently – approximately one month prior to the notice cancelling the visa. In response, the Applicant had signed and dated an acknowledgement.  This communication from the Applicant is, in my view, important. It demonstrates two things. First, the Applicant received the notification sent by the Minister.  Second the Applicant was able to communicate back to the Minister.  These circumstances are far removed from a situation where an applicant might complain he or she did not receive the communication, or received the communication following some lengthy delay.

5. Further, I would not infer on the information before me that the Minister had knowledge of the particular circumstances said to affect the Applicant at the time he received the notification, such as to render notification by fax unreasonable. For a start, the Applicant had, as I have noted above, acknowledged recently that he had received the notice of intention to cancel the visa. Further, the document from the Victorian Institute of Forensic Medicine was not before the Minister at the time the notification was sent.  It appears from the Court Book that it was a document that first came to life when the Applicant filed his application with the Tribunal.  Even if it could be said that it was before the Minister, however, it simply speaks to the Applicant’s state of mind as at the time the document was completed.  It says nothing about the Applicant’s capacity  at the time the notification was received.  Further, I would not draw any inference that the Department became aware of the Applicant’s circumstances from Victoria Police. The email communication to which I was taken at Court Book 14 is not a sound basis for me to draw an inference that the Department ought to be imputed with knowledge as to the Applicant’s capacities.  It is simply a request for information, with no indication as to whether further information was received. Finally, I note that a Notice to Produce directed to the Minister and requiring the Minister to produce, relevantly, all documents from Victoria Police to the Department after the email sent on 5 February 2016 at 11:30am did not result in the production of any documents. This fortifies my view that the Minister was not aware of any particular circumstances affecting the Applicant’s capacity.

6. For the above reasons, I am of the view the notification was given in a legally reasonable way.

Conclusion

1. I have upheld the first submission advanced by the Applicant under the single ground of review. As I have found for the Applicant, I will allow the application and make orders quashing the Tribunal’s decision and a declaration that the Applicant has not been validly notified under section 127 of the Act.

2. Costs usually follow the event.  Nothing was put to me that indicates I should depart from the ordinary course.  Accordingly I will award costs to the Applicant. The parties have indicated to the Court that costs in the amount of $11,211 should be ordered in favour of the Applicant and I will make an order to that effect.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Blake

Associate:     

Date: 13 November 2020