FEDERAL COURT OF AUSTRALIA

Perera v Minister for Immigration and Border Protection (No 2) [2014] FCA 182

THE COURT ORDERS THAT:

1.    The applicant’s application for leave to appeal be dismissed.

2.    The applicant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    On 27 August 2013, the applicant (“Mr Perera”) filed a purported notice of appeal from the judgment of the Federal Circuit Court of Australia published as Perera v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1227. By that judgment, the primary judge dismissed Mr Perera’s application to reinstate his originating application for judicial review by the Federal Circuit Court of a decision of the second respondent, the Migration Review Tribunal (“the Tribunal”).

2    On 23 October 2013, the first respondent, the Minister for Immigration and Border Protection (“the Minister”), filed a notice of objection to competency claiming that this appeal related to an interlocutory judgment and as such leave to appeal was required. At a hearing on 29 November 2013, I delivered an extempore judgment allowing the Minister’s notice of objection. That decision was published as Perera v Minister for Immigration and Border Protection [2013] FCA 1417.

3    On that same day I granted leave to Mr Perera to apply orally for leave to appeal pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth), reserved my judgment on the question of leave and indicated that if it became necessary to do so I would determine the substantive appeal at the same time.

4    For the following reasons, I decline to grant Mr Perera leave to appeal. References in these reasons to legislation are references to the Migration Act 1958 (Cth) (“the Act”) unless otherwise indicated.

BACKGROUND

5    Mr Perera is a citizen of Sri Lanka. After completing a course of study in Australia, he applied for a Skilled (Provisional) (Class VC) visa (“the Visa”) on 7 March 2011. In applying for the Visa, Mr Perera retained the services of a migration agent Mr Geoffrey Ward and authorised the Minister to communicate with Mr Ward in relation to his Visa application.

6    On 13 April 2012, a delegate of the Minister refused Mr Perera’s Visa application. That same day, an email was sent to Mr Ward providing notification of the Minister’s delegate’s decision. Notification was also sent to Mr Perera directly by way of a letter dated 13 April 2012, dispatched to the residential address provided by Mr Perera in his Visa application.

7    On 9 May 2012, under the cover of a letter from Goz Chambers Lawyers, Mr Perera submitted an application for review of the Minister’s delegate’s decision to the Tribunal. Attached to the application for review was a statutory declaration made by Mr Perera on 9 May 2012, in which Mr Perera stated that he terminated his contract with Mr Ward in November 2011 and had notified the Department of Immigration and Citizenship (“the Department”) accordingly.

8    On 9 July 2012, the Tribunal wrote to Mr Perera inviting him to comment on the validity of his application for review of the decision of the Minister’s delegate. The letter from the Tribunal indicated that the primary decision was emailed to Mr Ward on 13 April 2012 and that the time limit for lodging an application for review is 21 days from the date the applicant is taken to have been notified of the decision. Accordingly, an officer of the Tribunal had formed a preliminary view that the last day for lodging the application for review by the Tribunal was 4 May 2012 and as Mr Perera’s application was received on 9 May 2012, it appeared to be out of time. Mr Perera was invited to comment on this preliminary view in writing.

9    In response to the letter from the Tribunal, Mr Perera made a further statutory declaration on 19 July 2012 in which he reiterated his assertion that prior to 13 April 2012 he had notified the Department that Mr Ward was no longer authorised to receive communications on his behalf.

10    On 23 November 2012, the Tribunal notified Mr Perera that it did not have jurisdiction to conduct the review because the application to the Tribunal was not commenced within the time period prescribed by s 347(1)(b)(i) of the Act and r 4.10(1)(a) of the Migration Regulations 1994 (Cth) (“the Regulations”). In reaching that conclusion, the Tribunal stated there was no evidence on the Department’s file that Mr Perera had notified the Department that Mr Ward was no longer authorised to receive communications from the Department on his behalf.

11    On 14 December 2012, Mr Perera applied to the Federal Circuit Court for judicial review of the Tribunal’s decision under r 44.05 of the Federal Circuit Court Rules 2001 (Cth). That application was accompanied by a further statutory declaration made by Mr Perera on 14 December 2012. The application disclosed three grounds which may be summarised as follows:

(i)    The Tribunal exceeded its jurisdiction and/or constructively failed to exercise its jurisdiction by: failing to inquire with Mr Perera’s migration agent whether the Minister’s delegate actually sent notification of its decision to the agent; failing to inquire and/or determine whether notification was sent to the correct email address of the estranged agent; failing to consider a letter provided by Mr Perera’s landlord; failing to give details in its decision of Mr Perera’s authorised recipient; and failing to consider why notification of the Minister’s delegate’s decision was sent to Mr Perera’s residential address.

(ii)    The Tribunal failed to comply with the requirements of s 359A of the Act by failing to challenge, express a reaction to or invite Mr Perera to amplify on the evidence contained in his statutory declarations, including evidence that he had notified the Minister of the termination of any authority to communicate with Mr Ward.

(iii)    The Tribunal failed to comply with the requirements of s 359A of the Act by failing to provide Mr Perera with information the Tribunal obtained from the Minister regarding details of correspondence between Mr Perera and the Minister and by failing to give Mr Perera an opportunity to attend a hearing to give evidence.

12    By reason of his failure to appear at a directions hearing, a Registrar dismissed Mr Perera’s application for judicial review on 6 February 2013. On 13 February 2013, pursuant to r 16.05(2) of the Federal Circuit Court Rules, Mr Perera applied for the Registrar’s decision to be set aside.

13    The primary judge refused that application and it is that judgment which Mr Perera seeks leave to appeal.

THE PRIMARY DECISION

14    In determining whether to set aside the Registrar’s decision, the primary judge indicated the applicable test was two-fold. First, the primary judge had to be satisfied the applicant had provided a satisfactory explanation for his non-attendance at the directions hearing and second, that the substantive application raised an arguable case. The primary judge was satisfied with the explanation provided by the applicant’s solicitor for the non-attendance but concluded that none of the grounds asserted by Mr Perera raised an arguable case.

15    In dealing with Mr Perera’s attack on the manner and form of the decision notification set out in ground (i), the primary judge determined (at [20]) that the Tribunal was correct to conclude that the notification complied with the relevant requirements in ss 66(2), 494D and 494B(5) of the Act and that the Tribunal had set out the relevant law with accuracy and applied it.

16    The primary judge also found there was no arguable case in relation to Mr Perera’s complaints that the Tribunal failed to comply with its obligations under s 359A of the Act, set out in grounds (ii) and (iii). This finding was made on the basis that s 359A was applicable to the Tribunal’s determination. In finding that grounds (ii) and (iii) did not raise an arguable case, the primary judge stated (at [21]) that the Tribunal invited Mr Perera to comment in writing on whether a valid application had been made and there was no requirement for the Tribunal to provide Mr Perera with an opportunity to attend a hearing and to give evidence.

ISSUES RAISED ON APPEAL

17    Mr Perera initially sought leave to appeal the decision of the primary judge on the basis of two proposed grounds which may be summarised as follows:

(i)    The primary judge erred in finding that Mr Perera had no arguable case that he had lodged his application to the Tribunal within time because her Honour failed to identify that, given notification had been sent by email to Mr Ward and by post to Mr Perera, s 494C(4)(a) of the Act ought to have been applied in determining when time began to run instead of s 494C(5).

(ii)    The primary judge erred in finding that there was no arguable case that the Tribunal had denied Mr Perera natural justice by having insufficiently notified him in accordance with s 395A(1) of the Act of the potential basis for a decision adverse to him before finalising its review.

18    When the matter came on for hearing, counsel for Mr Perera indicated that Mr Perera’s main contention was that he did not have an “authorised recipient” within the meaning of s 494D of the Act, at the time the Minister’s delegate gave notification of the decision to refuse the grant of the Visa. Therefore, it was contended, the prescribed time for lodging an application for review with the Tribunal ought to have been calculated in accordance with s 494C(4)(a) of the Act.

19     Following this indication, I expressed a concern that this contention was not raised by Mr Perera’s proposed notice of appeal. There being no objection, Mr Perera was given leave to submit an amended proposed notice of appeal and the parties were given an opportunity to file further written submissions addressing the new ground. The further ground of appeal (ground (iii)) may be summarised as follows:

(iii)    The primary judge erred in finding there was no arguable case because her Honour applied the wrong test in addressing the question of whether Mr Perera had withdrawn his notice under s 494D of the Act nominating Mr Ward as his representative, or in the alternative, by failing to give appropriate weight to the evidence.

20    The test for the grant of leave to appeal was set out in Dai v Michael Roberts Strata Management Services Ltd [2000] FCA 680 at [8] (Beaumont, Whitlam and Lehane JJ), citing Decor Corp v Dart Industries (1991) 33 FCR 397. It is: (1) whether, in all the circumstances, the decision is attended with sufficient doubt to warrant it being reconsidered on appeal; and (2) whether substantial injustice would result if leave were refused, supposing the decision at first instance to be wrong.

CONSIDERATION

Ground (ii)

21    Dealing with Mr Perera’s s 359A ground first, I am not satisfied that the primary judge’s conclusion that Mr Perera’s application lacked an arguable case in this respect is attended with sufficient doubt to warrant, in all the circumstances, it being reconsidered on appeal.

22    Section 359A sits within Pt 5 Div 5 of the Act which is headed “Conduct of Review”. Section 359A(1) is in the following terms:

(1)    Subject to subsections (2) and (3), the Tribunal must:

(a)  give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)      invite the applicant to comment on or respond to it.

23    I accept the Minister’s contention that as the Tribunal did not go beyond considering whether it had jurisdiction to review the delegate’s decision and did not undertake a review of the decision, s 359A of the Act was not engaged.

24    Even if s 359A were engaged, the Tribunal gave Mr Perera sufficient particulars to discharge any potential obligation under s 359A of the Act or any obligation at common law to afford Mr Perera procedural fairness. In particular, the Tribunal gave particulars of the basis upon which it had formed its preliminary view that Mr Perera’s application for review was not lodged within the prescribed time. The Tribunal identified the time limit and identified the date from which it considered time began to run. It did that by reference to the date upon which Mr Perera’s authorised recipient was emailed the refusal decision. There was no need for the Tribunal to give the name, address and email address of Mr Perera’s authorised recipient, being the alleged failure to particularise upon which Mr Perera here relies.

Ground (i)

25    The matters asserted by Mr Perera in ground (i) were not raised before the primary judge and were not dealt with in her Honour’s reasons. However, the Minister did not raise any objection to ground (i) and instead contended that it is based on an incorrect interpretation of the relevant statutory provisions. Had ground (i) been properly raised and rejected by the primary judge as not raising an arguable case, such a conclusion would not be attended with sufficient doubt to warrant reconsideration on appeal.

26    Notice of the decision to refuse Mr Perera’s Visa application was emailed to Mr Ward as his authorised recipient on 13 April 2013. On that day a copy of the refusal notification was also sent to the last residential address provided by Mr Perera to the Minister.

27    Section 494B of the Act relevantly sets out the methods by which the Minister may give documents to a person. Section 494C of the Act relevantly sets out when a person is taken to have received a document from the Minister. Where a document has been emailed, s  494C(5) deems that the person is taken to have received the document at the end of the day on which the document was transmitted. Where a document has been posted to the person’s last given address in Australia, s 494C(4)(a) of the Act deems that the person is taken to have received the document 7 working days after the date of the document.

28    The fundamental contention made by Mr Perera in relation to ground (i) is that time began to run against him by reference to the deeming provision in s 494C(4)(a) and not by reference to the deeming provision in s 494C(5) and that the Tribunal erred by applying s  494C(5) in determining that his application was out of time.

29    Section 494D(1) and (2) of the Act provide:

(1)    If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to do things on behalf of the first person that consist of, or include, receiving documents in connection with matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents that the Minister would otherwise have given to the first person.

(2)    If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. However, this does not prevent the Minister giving the first person a copy of the document.

30    Section 494D(1) makes it clear that once the Minister is notified of an authorised recipient, documents that may otherwise have been given to the first person are thereafter to be given to the authorised recipient. Once the Minister has given a document to the authorised recipient, the document is taken to have been given to the first person: s 494D(2).

31    In view of those provisions, it is clear that time began to run against Mr Perera from 13 April 2013. That was the date upon which Mr Perera’s authorised recipient was deemed to have been notified of the refusal decision by virtue of s 494C(5). The Minister was obliged by s 494D(1) to give that notification to Mr Perera’s authorised recipient and did so.

32    As the Minister rightly contended, the letter sent to Mr Perera by post was not the giving of a document pursuant to s 494C(4) and even if it was, that would not displace the deemed fact of receipt of notice by email under s 494C(5). The proper characterisation of the letter posted to Mr Perera is that it was a copy of a document given to his authorised recipient, as contemplated by s 494D(2).

Ground (iii)

33    Ground (iii) attacks the primary judge’s decision to uphold the Tribunal’s finding that there was no evidence to support Mr Perera’s claim that he had withdrawn his authority for Mr Ward to act as his authorised recipient.

34    After describing Mr Perera’s statutory declarations that were before the Tribunal and his affidavit that was before her Honour, each of which attest to Mr Perera’s claims that he notified the Minister that he had withdrawn authority for Mr Ward to act as his authorised recipient, the primary judge stated (at [20]):

The Tribunal in its statement of decision and reasons set out the relevant law with accuracy, and then applied it. Although the Applicant claimed to have terminated the services of Mr Ward and notified the Department of a change to his authorised recipient, no such communication was put before the Court by the Applicant and none was contained in the Department file. There is no evidentiary basis to support the submissions of the Applicant in that regard.

35    At [22], the primary judge reiterated that Mr Perera “provided no documentary evidence” indicating he had given notice to the Minister of a change to his authorised recipient.

36    The Minister submitted that the Tribunal’s finding that the Department was not notified of a change to Mr Perera’s authorised recipient was not a finding that was attacked by the appellant in the substantive proceeding before the primary judge. Therefore, the Minister submitted, the primary judge’s treatment of that issue was not an essential part of her consideration of whether the substantive application raised an arguable case. The Minister contended that there could be no appealable error in the primary judge’s treatment of that issue as her Honour had applied the correct test to the substantive challenges that she was called upon to determine.

37    Mr Perera did not put any material before me which indicates that the Tribunal’s finding in relation to notification of a change to the authorised recipient was challenged before the primary judge and relied upon as a basis for contending that an arguable case that the Tribunal erred was established. There is no reference to this ground in Mr Perera’s application for judicial review nor is it referred to in Mr Perera’s affidavit accompanying his application to set aside the decision of the Registrar. It would seem then that the primary judge’s statements on this issue (as set out above at [34]-[35]) are observations made in passing which travelled beyond a consideration of the grounds upon which Mr Perera relied. In those circumstances, I accept the Ministers’ contention that no appealable error has been established by reference to ground (iii).

38    If I had been satisfied Mr Perera had contended before the primary judge that there was an arguable case that the Tribunal was wrong to find that he had not withdrawn Mr Ward’s status as his authorised representative, I may have found that there was an error in the primary judge’s approach to this issue. That Mr Perera notified the Department that Mr Ward was no longer his authorised representative was a fact capable of being established on the evidence given by Mr Perera. That no documentary evidence to substantiate the notification was available, did not render the Tribunal’s finding that no notification had been given, a finding which was unarguably correct.

39    As I indicated at [5] of my earlier reasons for judgment published on 29 November 2013, Mr Perera may not be precluded from making a further application to set aside the decision of the Registrar. Such a further application may enable Mr Perera to agitate this ground.

CONCLUSION

40    Having determined that the primary judge was correct to conclude that there was no arguable case established by Mr Perera, I am not satisfied that the primary judge’s judgment is attended with sufficient doubt to warrant it being reconsidered on appeal. The application for leave to appeal should therefore be dismissed with costs.

Associate:

Dated:    6 March 2014