FEDERAL COURT OF AUSTRALIA

Radzi v Minister for Immigration and Border Protection [2014] FCA 626

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

1    On 5 December 2013, a judge of the Federal Circuit Court of Australia dismissed the appellant’s application for constitutional writs in respect of a decision of the Migration Review Tribunal (“the Tribunal”). The Tribunal had affirmed a decision of a delegate of the first respondent (“the Minister”) not to grant the appellant a student visa.

2    The appellant appeals from the judgment of the Federal Circuit Court.

Background

3    The appellant is a citizen of Malaysia. He applied for a Student (Temporary) (Class TU) Subclass 573 visa on 14 March 2011. The application was refused by the Minister’s delegate, but that decision was set aside by the Tribunal on 15 June 2012. The Tribunal remitted the application with a direction that the appellant met certain health requirements.

4    By email dated 9 July 2012, the Department of Immigration and Citizenship requested a number of documents from the appellant to assist in the assessment of his application. The appellant failed to respond to that request.

5    On 5 October 2012, a delegate again refused to grant the appellant a visa, this time on the basis that the appellant did not meet the requirements of cl 573.223(2)(a)(ii)(A) of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”).

The Tribunal’s proceedings

6    On 26 October 2012, the appellant lodged an application with the Tribunal to review the delegate’s decision of 5 October 2012, together with a request for a fee reduction. The appellant paid $770 by cash and credit card to the Tribunal. On 1 November 2012, the Tribunal refused the request for a fee reduction and required that the appellant pay the remaining amount of $770 by 26 November 2012.

7    On 30 November 2012, the appellant made a further request for a fee reduction. On the same date, the appellant provided the Tribunal with an undated Change of Contact Details form which nominated a new residential address. His email and mobile phone details remained unchanged.

8    By letter dated 5 December 2012, the Tribunal refused the further request for a fee reduction and granted the appellant an extension of time until 2 January 2013 (the letter mistakenly referred to 2 January 2012) to pay the remaining $770 of the fee. The letter was sent by registered post to the appellant at the address he had nominated, but it was returned to the Tribunal marked “unknown” on 2 January 2013.

9    On 2 and 3 January 2013, a Tribunal officer attempted to contact the appellant several times on his mobile phone but was unsuccessful. The officer recorded that there was no answer and no option to leave a message.

10    The appellant did not subsequently contact the Tribunal.

The Tribunal’s decision

11    On 24 January 2013, the Tribunal determined that the application for review was not a properly made application under s 347 of the Migration Act 1958 (Cth) (“the Act”) because the appellant had failed to pay the prescribed application fee. It decided that under s 348 it had no jurisdiction to determine the application.

Proceedings in the Federal Circuit Court

12    On 6 March 2013, the appellant lodged an application for judicial review in the Federal Circuit Court containing the following three grounds of review:

1.    Letter not received after the detail’s change.

2.    No other means of communication used to supply the important information such as email and voice mail.

3.    The MRT claimed to call me 2 times and can’t reach me but didn’t leave any voicemail to convey the information.

(Errors in the original.)

13    The application was filed six days outside the time limit in s 477(1) of the Act so the appellant required the grant of an extension of time. Pursuant to s 477(2), such an extension may be granted if the Court is satisfied that it is in the interests of the administration of justice to do so.

14    The appellant relied on the following grounds for an extension of time:

1.    Previously asked help from local (Bernie Rippol), but the local member said their team member can’t help at the last minute. One of the supports is for permanent visa called Distinguish Talent. Evidence of support letter is attached.

2.    I’m on bridging visa; it’s not a substantive visa and won’t be eligible to apply for a permanent visa until current bridging visa is sorted out.

(Errors in the original.)

15    The application for an extension of time was heard on 5 December 2013. The primary judge delivered ex tempore reasons for judgment.

16    His Honour described the considerations affecting the application for an extension of time as follows:

The factors relevant to the exercise of that discretion broadly include the extent of the delay, the reasons for it, any prejudice to the respondent, the impact upon the applicant if time is not extended, the interests of the public at large and, of course, the merits of the substantive application.

17    His Honour considered that the application had only been filed a short period out of time, that a reasonable explanation for the delay had been provided and the prejudice to the appellant would be significant if the extension were not granted. His Honour considered the appellant’s submission that the interests of the public would be affected because he involved himself in community work.

18    His Honour stated that the real issue was whether the merits of the substantive application warranted an order extending time. The appellant argued that he had not in fact received notification of the Tribunal’s refusal of his request for a fee reduction and that therefore the decision that it had no jurisdiction to review the delegate’s decision should not have been made. His Honour noted that s 379A(4) of the Act deems the appellant to have notice of documents posted to him at the address he provided. His Honour considered that the appellant had provided no basis to support any allegation of jurisdictional error on the part of the Tribunal and that the lack of merit outweighed the other discretionary circumstances for extension. His Honour refused the application for an extension of time and dismissed the application for constitutional writs.

The appeal

19    On 27 December 2013, the appellant filed a notice of appeal containing three grounds:

1.    The interest of the administration of justice, there is a legal error. Under MIGRATION ACT 1958 – SECT 379C, Document not given effectively (7) If:(a) the Tribunal purports to give a document to a person in accordance with a method specified in section 379A (including in a case covered by section 379AA) but makes an error in doing so; and(b) the person nonetheless receives the document or a copy of it; then the person is taken to have received the document at the times mentioned in this section as if the Tribunal had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at the time.

The MRT didn’t send an email as stated in the act and MRT claimed to call but didn’t have the option to leave a voicemail. As in the act above, email haven’t been used and the appellant proved that he didn’t received the letter as the letter of the failure of fee reduction returned unclaimed and no voicemail have been send or email. On the previous contact with MRT officer, an voicemail was used and email was used as a means of contact and preferred contact.

2.    On court order dated 3 April 2013, stated that “The application for an extension of time to be listed for hearing at 10 am on 5 December 2013” but the whole case is heard and not just extension of time as stated in the court order. During the time, appeal was rejected for the full case to be heard in another day.

3.    The interest of public and minister at large. The failure of this case will result in the appellant to be sent back directly. The appellant have been helping the local community and is a founder of Mala Research, Development and Education Foundation. The result of him being sent back will leave school student and person with disabilities stranded, as the appellant is running the foundation alone. Appellant have been helping the Australian community for free as the foundation is a non-profit organization, if the appellant cant receive fair justice it will result in irreparable harm and continuing hardship to many Australian citizens and permanent residents should the appellant leave the country.

(Errors in original.)

20    The appeal is brought pursuant to s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth), which provides that the Federal Court of Australia has jurisdiction to hear and determine appeals from a judgment of the Federal Circuit Court exercising original jurisdiction under a law of the Commonwealth. Section 25(1AA) provides that such an appeal may be heard by a single judge of the Federal Court.

21    The appeal is by way of rehearing: SZSYM v Minister for Immigration and Border Protection [2014] FCA 174 at [28]; Rowe v Emmanuel College [2013] FCA 939 at [50]. Accordingly, it is necessary for the appellant to demonstrate error in the primary judgment: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203-204.

The first ground of the appeal

22    As to the first ground of appeal, the appellant appears to allege that:

(a)    the Tribunal was required to send the letter of 5 December 2012 via email or to leave a voicemail message on his mobile phone;

(b)    the Tribunal’s letter of 5 December 2012 was not “given effectively”;

(c)    the Tribunal should not have decided that it had no jurisdiction in circumstances where he had proved that he did not receive the letter; and

(d)    there has been a contravention of s 379A, or that s 379A should affect the outcome.

23    Section 347(1) of the Act requires that an application be made in the approved form, be given to the Tribunal within the prescribed period and be accompanied by the prescribed fee. Regulation 4.13(1) sets the prescribed fee at $1,540 and reg 4.13(4) gives the Tribunal the power to waive 50% of this fee if it is satisfied that payment of the fee has or would cause financial hardship to the appellant. The Tribunal decided that the documentary evidence provided by the appellant in support of his request for a fee reduction was not sufficient to warrant waiver of the remainder of the fee.

24    Section 348(1) provides that if an application is properly made under s 347(1), the Tribunal must review the decision. If an application for waiver of the prescribed fee is made within the period prescribed for the making of the application, the application may be entertained by the Tribunal provided that the fee is eventually waived or paid within a reasonable time after the application for waiver is rejected: Braganza v Minister for Immigration & Multicultural Affairs [2001] FCA 318.

25    The Tribunal determined that appellant had failed to make a valid application in accordance with s 347 of the Act because the application was not accompanied by the prescribed fee and was not paid within a reasonable time after he was notified that the application for waiver had been rejected. Therefore, the Tribunal considered that it had no jurisdiction to review the delegate’s decision.

26    In his written submissions, the appellant emphasised that he had not received the Tribunal’s letter rejecting his application for waiver of the fee. He submitted that he had been denied procedural fairness. A question arises as to whether the appellant can be regarded as having been notified of the rejection in circumstances where he did not actually receive the letter and whether a decision made in the absence of actual receipt amounts to a denial of procedural fairness.

27    The legislative scheme by which an applicant is notified of the outcome of a decision made by the Tribunal upon a request for a waiver of fees is found in reg 4.40 of the Regulations and ss 379A and 379C of the Act.

28    Regulation 4.40(1) of the Regulations provides that a notice or statement to be given to an applicant in relation to a decision of the Migration Review Tribunal must be given by one of the methods specified in s 379A of the Act.

29    Under s 379A of the Act, the methods of giving a documents to a person include: handing the document to a person at the last residential or business address provided by the recipient; dispatching the document by prepaid post or other prepaid means to the last residential or business address provided by the recipient; and transmitting the document by facsimile, email or other electronic means to the last facsimile number, email address or other electronic address provided by the recipient.

30    Section 379C(4) provides that if the Tribunal gives a document to a person by dispatching the document by prepaid post, the person is “taken to have received the document”, if the document is dispatched from a place in Australia to an address in Australia, seven working days after the date of the document.

31    The letter from the Tribunal refusing the appellant’s further request for a fee reduction was dated 5 December 2012. It was dispatched by prepaid post to the last residential address provided to the Tribunal by the appellant. The document was dispatched from a place in Australia to an address in Australia. Accordingly, the letter is taken to have been received by the appellant seven working days after 5 December 2012, that is, on 14 December 2012.

32    The Tribunal was obliged to make its decision of 24 January 2013 upon the assumption that the appellant had received its letter of 5 December 2012. That course was dictated by s 397C(4) of the Act which conclusively provides that the document is taken to have been received: Kim v Minister for Immigration & Multicultural Affairs [2006] FCAFC 64 at [8]; Enjam v Minister for Immigration and Border Protection [2014] FCA 189 at [15]. The fact that the appellant did not in fact receive the letter and that the Tribunal knew that the appellant had not received it does not invalidate the Tribunal’s decision. The effect of s 397C(4) is that the appellant’s argument that he was denied procedural fairness cannot succeed: Kim at [8]. The legislative policy is plainly that it is the responsibility and obligation of an applicant to ensure that all of his or her contact details are up to date and that he or she is in a position to receive any communications sent by the Tribunal in accordance with those contact details.

33    In his written submissions, the appellant also emphasised that he had been contacted by email in the past by the Tribunal and submitted that it was jurisdictional error for the Tribunal not to notify him by email of the rejection of his application for a waiver of the fee. Although the appellant had provided an email address and a mobile telephone number, the Tribunal was not obliged to communicate with him via that email address and that number. In Haque v Minister for Immigration and Citizenship (2010) 114 ALD 547, Gilmour J considered s 494B of the Act, which is in almost identical terms to s 379A. His Honour concluded at [64]:

The appellant’s consent to the receipt of communications by email did not oblige the first respondent to communicate with him by that means. … It is but one of the several methods by which the first respondent may give a document to a person and is expressly provided for in this respect under s 494B(5) of the Act. It was open to the first respondent to use any one of the methods provided for under s 494B …

34    In Minister for Immigration & Border Protection v Kim [2014] FCA 390, Buchanan J similarly held that the Minister retains a discretion to choose any of the methods prescribed by s 494B to communicate a visa refusal.

35    In my opinion, the Tribunal may choose any of the methods set out in s 379A to notify an applicant of a decision. It is not obliged to use more than one method. Further, s 379A does not provide for or require the Tribunal to notify an applicant of a decision by telephone.

36    The appellant relied on s 379C(7) of the Act. That section operates where the Tribunal purports to give a document in accordance with one of the methods specified in s 379A, but makes an error in doing so. If the person nonetheless receives the document or a copy of it, the person is taken to have received the document at a particular time. That provision has no application or relevance to the present case.

37    It was open to the Tribunal to send its letter of 5 December 2012 to the appellant by prepaid post at the residential address nominated by him. The Tribunal was not required to communicate with the appellant by email or telephone (although it may be noted that it did attempt to contact him by telephone). As the appellant had not paid the prescribed fee within a reasonable time of notification of the decision to refuse to waive the fee the Tribunal did not have jurisdiction to determine the application.

38    The primary judge was correct to find that there was no error in the Tribunal’s decision. The appellant’s first ground cannot succeed.

The second ground of the appeal

39    The appellant’s second ground seems to be that only the application for an extension of time was listed for hearing before the Federal Circuit Court, and that the application for constitutional writs itself should not have been dismissed at the same time. It seems to argue that the merits of the case were for determination only on a later occasion.

40    Section 477(2)(b) of the Act requires that the Court must be satisfied that it is in the interests of the administration of justice to make an order for the extension of time. One of the relevant factors is whether the substantive application has prospects of success: Fisher v Minister for Immigration and Citizenship (2007) 162 FCR 299 at [35]. The primary judge decided that the appellant’s case lacked merit, weighed his prospects of success in the substantive application against the other discretionary considerations, and concluded that the extension of time should be refused. Once the extension of time was refused, it was an inevitable consequence that the substantive application had to be dismissed. There is no substance in the second ground.

The third ground of the appeal

41    The third ground amounts to a submission that it would be in the public interest to have the appellant remain in Australia. The appellant emphasised his work with a non-profit organisation that is benefiting the Australian community. The same argument was relied upon by the appellant below. His Honour explicitly considered “the interests of the public at large”. The appellant has not sought to demonstrate how the primary judge erred in his consideration of that factor. No error is revealed in the judgment in this regard. The third ground cannot succeed.

42    The appellant also submitted that there are strong compassionate and other circumstances that should result in the grant of a visa to him. That seems to be an attempt to have the delegate’s decision reviewed on its merits. However, the Court does not have the jurisdiction to conduct such a review.

Further time for the provision of written submissions

43    For completeness, I note that at the hearing of the appeal on 12 June 2014, the appellant submitted that procedural fairness required that he be given more time to provide further written submissions. He had produced written submissions, but stated that he could provide better submissions with the benefit of more time. He stated that he had not received any assistance with the preparation of his submissions and had been under considerable pressure.

44    I was prepared to allow the appellant until 4 pm on 16 June 2014 to file and serve any further written submissions, but no longer. I considered that the appellant had already had sufficient time to prepare his submissions.

45    The appellant filed his notice of appeal on 27 December 2013 and an order was made on 9 January 2014 that he file and serve a written outline of his submissions no later than 10 business days before the hearing. The hearing was later listed for 5 May 2012. He did not file any submissions at that stage.

46    On 5 May 2014 I heard argument, but adjourned the hearing until 12 June 2014 so that the Minister could provide further written submissions (concerning my questions about the legislative provisions dealing with notification by the Tribunal of its decisions) and so that I could then hear further oral submissions. I directed that the Minister file and serve further written submissions by 12 May 2014 and that the appellant file and serve written submissions in response by 2 June 2014. When I made those orders, the appellant did not submit that the period allowed for his further written submissions was inadequate. The appellant eventually provided written submissions, in the form of an affidavit, which he was given leave to file at the hearing on 12 June 2014. The appellant also had the opportunity to make oral submissions at each hearing.

47    I considered that the time that the appellant had to provide written submissions was adequate in the circumstances. For these reasons, I declined to allow the appellant time beyond 16 June 2014 to provide written submissions. He did provide such submissions and I have taken them into account.

48    As no error has been demonstrated in the judgment of the primary judge, the appeal must be dismissed with costs.

Associate:

Dated:    18 June 2014