FEDERAL COURT OF AUSTRALIA

Rahman v Minister for Immigration and Border Protection [2016] FCA 662

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed, with costs.

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

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    This appeal is from orders made by a judge of the Federal Circuit Court of Australia (the primary judge) on 15 March 2016 dismissing an application, with costs, for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 21 August 2015. The Tribunal found that it did not have jurisdiction in relation to the application for review of the delegate’s decision to refuse to grant a Student (Temporary) (Class TU) visa and did so on the basis that the application to the Tribunal was out of time.

2    The notice of appeal has as its sole ground, as written:

I was not recieved letter of notifying of Minister’s decision to refuse my student visa application.

3    The appellant is in immigration detention.

The evidence

4    The appellant filed an affidavit he had affirmed on 29 March 2016. That affidavit seeks to put further evidence before this Court, by way of a letter to the Court dated 29 March 2016, as to the circumstances in which, the appellant says, he did not receive a letter from the Minister.

5    The letter of 29 March 2016 is similar in some respects to a letter to the Federal Circuit Court dated 10 September 2015 and to a letter which was before the Tribunal. In my opinion, this Court should not receive this additional evidence: either it was already before the Federal Circuit Court, in which case this additional evidence is unnecessary, or it was not before the Federal Circuit Court but could have been, in which case it is inappropriate for this Court to receive this additional evidence. I reject the affidavit dated 29 March 2016.

Chronology/background

6    As found by the Tribunal, the primary decision of a delegate of the Minister for Immigration to refuse to grant a Student (Temporary) (Class TU) visa was dated 30 April 2010 and dispatched by post on that day. The Tribunal referred to s 347(1)(b) of the Migration Act 1958 (Cth) and to reg 4.10 of the Migration Regulations 1994 (Cth) by which an application for review of the decision had to be made within 21 days after the visa applicant was notified of the decision in accordance with the statutory requirements. As the decision was posted on 30 April 2010, by s 494C the visa applicant was taken to be notified of the decision on 11 May 2010. The last day for lodging the application for review was, therefore, 1 June 2010, but the application was not received until 5 August 2015. It followed that the Tribunal had no jurisdiction in the matter.

7    The application to the Federal Circuit Court raised the ground that the present appellant was not informed about the decision when it was made and stated that the appellant was not informed by registered post or any other post, nor by email or by mobile telephone.

8    The primary judge found that the letter dated 30 April 2010 notifying the appellant of the decision of the delegate to refuse to grant the visa was addressed to the appellant at the Australian residential address provided to the Department in the application made on 12 March 2010.

9    There were also two affidavits before the primary judge, one by the present appellant dated 10 September 2015 and the other affirmed 9 February 2016 by a solicitor employed by the legal representatives of the Minister which the primary judge held established that the letter was dispatched in accordance with the requirement in s 494B(4)(a) that it be dispatched within three working days of the date of document.

10    The primary judge also found that the notification letter, although sent by registered post, did not reach the appellant. It was ultimately returned to the Minister’s Department. The appellant was told by his case officer sometime during April 2010, by email, that he should anticipate receiving notification of the decision of the delegate within 28 days. The appellant did not make further enquiries of the Department about the fate of his visa application and the bridging visa that he held ran out 28 days after the delegate’s decision.

11    The appellant continued to live and work in Australia until, in 2015, as a result of some altercation, he attended the Bankstown Police Station and at that time his visa status became known. He was taken into immigration detention where he has been ever since.

12    The primary judge held that, in essence, the notification letter sent to the appellant contained all of the elements which it was required to contain; it was sent to the correct residential address nominated by the appellant for the receipt of documents; and it was sent within three working days of the date it bore.

13    The primary judge referred to s 66 of the Migration Act and held that the notification letter and the decision record complied with the requirements of subsection (2). The primary judge held, at [18]:

In particular, the documents:

a)    specified the criterion (namely regulation 572.223(2)(a)(i)(B)) that Mr Rahman did not satisfy;

b)    gave written reasons why the criterion was not satisfied (namely Mr Rahman’s failure to provide evidence of his financial capacity);

c)    stated that Mr Rahman had the right to have the decision reviewed, the time within which an application for review may be made, that Mr Rahman was entitled to apply for review and the locations of the registries at which his application could be lodged.

14    The primary judge then referred to reg 2.16 and to ss 494B and 494C.

15    Having found that the notification of the delegate’s decision was taken to have been received on 11 May 2010, the primary judge considered s 347(1)(b)(i) of the Migration Act and regulation 4.10(1)(a) to find that the period in which an application for review of the delegate’s decision had to be made was within 21 days after the day on which the notice was received.

The submissions of the parties

16    The Minister supported the conclusion and reasoning of the primary judge and submitted that no appellable error was established in the primary judge’s judgment.

17    The appellant in his oral submissions emphasised that he had not received the letter notifying the delegate’s decision to refuse his student visa application. He submitted that this had not been due to any fault or mistake on his part.

Consideration

18    In my opinion, no error in the judgment of the primary judge has been made out. I agree with the primary judge’s analysis of s 66, s 494B, s 494C, s 347(1)(b)(i) of the Migration Act and regs 2.16 and 4.10(1)(a) of the Migration Regulations. Those provisions, as in force at the relevant time, are set out in the judgment of the primary judge.

19    I have on earlier occasions considered this statutory regime.

20    In SZRLH v Minister for Immigration and Citizenship [2013] FCA 384 I referred to the decision of the Full Court in NACG v Minister for Immigration & Multicultural Affairs [2002] FCAFC 173 where Stone J, with whom Madgwick and Dowsett JJ agreed, said:

[5]     ... Under s 412(1)(b) of the Migration Act 1958 (Cth) (“the Act”) an application for review of such a decision must be made within 28 days of the decision being notified. The Act and its regulations provide that if advice of a decision is posted within three days of the decision having been made then the notification of the decision is deemed to have occurred seven days after the date of the decision. In both these cases then the decision is deemed by those provisions to have been notified by 19 September or, at the very latest, 20 September 2000.

[6]     ... it was accepted by the Tribunal and subsequently by the primary judge in this case that the documents were not received by the registry of the Tribunal until 9 November 2000. That date is a date which is well outside the 28 day period provided by the Act.

[7]     As a result the Tribunal decided that it had no jurisdiction to review the delegate’s decision. This is based on the indisputable fact that the Act does not allow for any extension or variation of the 28 day period.

I also referred to Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 at [13] in relation to the meaning of s 494C(4). There, the Full Court stated that nothing in the section suggested that “taken to have received the document” was merely a rebuttable presumption of fact.

See also SZULH v Minister for Immigration and Border Protection [2015] FCA 835.

21    Although in the present case the appellant also gave an email address to the Department, this did not mean that the Minister did not effect the giving of the letter to the appellant when it was sent by prepaid post to the last residential address provided to the Minister by the recipient for the purposes of receiving documents: see s 494B. In Minister for Immigration and Border Protection v Kim [2014] FCA 390; 220 FCR 494 at [34]–[47], Buchanan J held that notification of the refusal of a visa by post under s 494B(4)(c) was effective despite the applicant having provided an email address when asked whether she agreed to the Department communicating with her by fax, e-mail or other electronic means. In so stating, Buchanan J followed Haque v Minister for Immigration and Citizenship [2010] FCA 346; 221 FCR 289 at [64]. Those decisions were followed in Radzi v Minister for Immigration and Border Protection [2014] FCA 626; 143 ALD 124 at [33]–[35] and, more recently, in Pathania v Minister for Immigration and Border Protection [2015] FCA 1262.

22    The balance of the appellant’s submissions to this Court in effect went only to the unfairness, in his case, of the statutory regime for the giving of documents by the Minister, in particular a document notifying a decision to refuse an application for a visa.

23    For completeness, I note that the appellant, to the extent to which he attempted to do so, should not be permitted to run in this Court a case on a different factual basis to that which he ran below on the footing that no “collect card” was left in his post box. This would require an examination of the facts which it is not appropriate for this Court, on appeal, to undertake. It is not necessary for me to consider whether such a case could succeed in light of the decision of the Full Court in Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 377; 98 FCR 77 at [29].

Conclusion and orders

24    The appeal should be dismissed, with costs.

Associate:

Dated:    3 June 2016