FEDERAL COURT OF AUSTRALIA Minister for Immigration and Border Protection v ASE15 [2016] FCAFC 37 Appeal from: ASE15 v Minister for Immigration & Anor [2015] FCCA 2581 File number: WAD 585 of 2015 Judges: NORTH, BARKER AND MORTIMER JJ Date of judgment: 11 March 2016 Catchwords: MIGRATION – application for protection (class XA) visa – appeal from Federal Circuit Court of Australia – where respondents did not receive initial letter notifying of Minister's decision to refuse visa – whether re-sent letter was second notification – whether time for merits review application ran from initial or re-sent letter – whether failure to explain time period for merits review when re-sending letter was procedurally fair – appeal allowed Legislation: Migration Act 1958 (Cth) s 48A, s 48B, s 51A, s 66, s 66(1), s 412(1), s 476(1), s 494B(4), s 494C(4) Migration Regulations 1994 (Cth) reg 2.16(3), reg 4.31(2) Cases cited: ASE15 v Minister for Immigration & Anor [2015] FCCA 2581 H v Minister for Immigration and Multicultural Affairs (2002) 188 FCR 153; [2002] FCAFC 18 Date of hearing: 17 February 2016 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 52 Counsel for the Appellant: Mr RJS French Solicitor for the Appellant: Australian Government Solicitor Counsel for the Respondents: Mr T Savu Solicitor for the Respondents: Savu Esq ORDERS WAD 585 of 2015 BETWEEN: MINISTER FOR IMMIGRATION AND BORDER PROTECTION Appellant AND: ASE15 First Respondent ASF15 Second Respondent ASH15 (and another named in the Schedule) Third Respondent JUDGES: NORTH, BARKER AND MORTIMER JJ DATE OF ORDER: 11 MARCH 2016 THE COURT ORDERS THAT: 1. The appeal be allowed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT THE COURT: 1 This is an appeal by the Minister for Immigration and Border Protection from a decision of a judge of the Federal Circuit Court of Australia that relevantly resulted in the following orders: (2) A writ of certiorari shall issue removing the record of the Refugee Review Tribunal decision made on 2 April 2015 and that decision is quashed. (3) A writ of mandamus shall issue requiring the Administrative Appeals Tribunal to review application of the first, second and fourth applicants of the decision of the delegate made on 14 January 2015 before it according to law. (4) The first respondent pay the applicants' costs fixed in the sum of $6825. 2 The appeal initially concerned the first, second and third respondents (being the first, second and fourth applicants referred to in order (3)), but at the hearing of the appeal, at the instance of the Minister, the appeal was dismissed so far as it concerned the third respondent, with costs on that part of the appeal reserved. As a result, the appeal ultimately only concerned the first and second respondents. 3 The orders appealed from came about in the following circumstances. 4 On 27 August 2013, the first respondent lodged an application for a protection visa with the Department of Immigration and Border Protection, naming his wife, the second respondent, as a person included in the application. 5 In the application, the first respondent stated his residential address in Australia at an address in Quarry Street, Geraldton, Western Australia 6530, and gave the same address for his postal address. 6 On 14 January 2015, a delegate of the Minister made a decision refusing to grant the first and second respondents protection visas. 7 On 14 January 2015, the Department purported to give notification to the first respondent of the refusal of the application in accordance with the obligation imposed on the Minister in that regard by s 66(1) of the Migration Act 1958 (Cth). 8 Relying on s 66 and the Migration Regulations 1994 (Cth) reg 2.16(3) and reg 4.31(2), and s 494B(4) of the Act, the Department dispatched the delegate's decision under cover of a letter dated 14 January 2015, addressed to the first respondent at his last address for service provided to the Department by him for the purpose of receiving documents, being the Quarry Street address, and provided information concerning review rights. In particular, the letter advised that the first and second respondents were entitled to apply to the (former) Refugee Review Tribunal (RRT) for a review of the delegate's decision and that an application for review must be given to the RRT within the prescribed timeframe, which timeframe commenced on the day on which the first and second respondents were taken to have been notified of the decision, and ended at the end of 28 days. They were further advised that the review period was prescribed by law and an application for merits review may not be accepted after that date. The letter finally advised that, as the letter was mailed to an Australian address from within Australia, the first and second respondents were taken to have received it seven working days after the date of the letter, although a working day did not include weekends or public holidays in the Australian state or territory to where the letter was posted. 9 By s 494C(4) of the Act, so long as the Minister complied with the requirements for valid dispatch contained in s 494B(4), the applicants were treated as having received this notice of the delegate's decision whether or not they had in fact done so. 10 On 2 February 2015, the first respondent – not knowing of the dispatch of the 14 January 2015 notification letter – by email advised the Department of his (and his wife's) new residential and mailing address in McAleer Drive, Geraldton, Western Australia. 11 On 4 February 2015, a fact found by the primary judge and not disputed by the Minister, the first respondent received a telephone call from a departmental officer advising in effect that the notification letter sent to the previously notified address had been returned to the Department. The evidence of the first respondent concerning that phone call, upon which the primary judge relied, was set out in a letter that the first respondent gave to his solicitor, dated 10 March 2015 addressed "To whom it may concern", which was in the following terms: Notification for a Protection (class XA) visa was received at … Mcaleer Drive on Monday 16/02/15 because it was initially sent to our previous address … Quarry Street, Geraldton. On the 4/02/15 I received a phone call from a lady at the Department of Immigration that the letter sent to me to my previous address has been sent back to them in which I indicated that I had already changed my address. She said they do not have any record of my new address so I quickly do it again through the phone. After a week I then received a registered letter in my new address as on the date mentioned above. 12 On the basis of evidence before the primary judge and, by leave, in this Court, it appears that the Department then sent a document regarding the refusal of the protection visa application to the first respondent at his new address by registered post number 51003728074012 on or about 16 February 2015, and received by the first respondent on 16 February 2015. 13 There is some dispute as to whether the document sent on or about 16 February 2015 was merely a copy of the 14 January 2015 covering letter and enclosed delegate's refusal decision, or was a new letter, dated about the time it was received, namely 16 February 2015, enclosing the refusal decision and which constituted a second notification under the Act of the delegate's refusal decision. On the basis it was only a copy of the letter initially sent, dated 14 January 2015, the first and second respondents should have filed any review application in the RRT by 20 February 2015, according to the method for computing the review period set out in the letter. 14 As it transpires, the first and second respondents did not lodge any application for merits review with the RRT in that period, but did so on 4 March 2015. In effect, they treated the communication from the Department received on 16 February 2015 as a second, valid notification that created a second, valid merits review period. 15 When a submission to this effect was made to the RRT, when the question of the jurisdiction of the RRT was raised, the RRT found it did not have jurisdiction to consider the review application, because there was only one notification and that was by the letter dated 14 January 2015. Thus, by operation of the Act, the time for seeking merits review of the refusal decision had expired and the RRT had no power to extend that time. 16 The first and second respondents then sought a constitutional writ in the Federal Circuit Court, under s 476(1) of the Act, to quash the RRT's decision and to require the RRT to consider their review application. The primary judge granted the relief sought in terms of orders 2 and 3 set out above. See ASE15 v Minister for Immigration & Anor [2015] FCCA 2581. 17 First, the primary judge found that the Department re-sent the letter dated 14 January 2015, shortly after the telephone call of 4 February 2015, to the first and second respondents, and that it constituted a "second notification" by the Department of the decision of the delegate. 18 By reference to the decision of the Full Court of this Court in H v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 153; [2002] FCAFC 18, the primary judge considered it was open to the first and second respondents to seek review of the refusal in the RRT on the basis of either the first notification (the covering letter dated 14 January 2015) or the second notification. 19 On that basis, the primary judge considered that the review application lodged on 4 March 2015 was within the 28 day review application period that followed receipt of the second notification on 16 February 2015. 20 Secondly, the primary judge considered that, even if it were the position "that only one correct approach is available in respect of notification", the notification procedure did not exclude the principles of procedural fairness and, in circumstances where the first and second respondents had notified a change of address prior to the expiry of the review period created by the first notification dated 14 January 2015, and also engaged in a communication relating to the delegate's decision within that period, in which the Department had conveyed that it was forwarding the Delegate's decision again to them without identifying any covering letter or without explaining the consequences of the time that was running in respect of the earlier date of the letter, there would be a denial of procedural fairness of a kind that would give rise to a jurisdictional error in terms of the requirements under s 412(1) and the obligations under s 66(1) of the Act. 21 The Minister appeals from the judgment and orders 2, 3 and 4 made in the Court below, insofar as they affect the first and second respondents, on the following grounds: 1. The Court below erred in law by finding that 2 separate notifications under s 66(1) of the Migration Act 1958 were possible (see [13]-[18]). 2. The Court below erred in law by finding that a second notification pursuant to s 66(1) of the Migration Act 1958 to the first and second respondents (the first and second applicants in the proceedings blow) had occurred (see [11] and [16]). 3. The Court below erred in law by finding that the first and second respondents (the first and second applicants in the proceedings below) were denied procedural fairness such that the Refugee Review Tribunal's decision dated 2 April 2015 involved jurisdictional error (see [19]). 22 The Court will first deal with ground 2 and then, having regard to the disposition of that ground, will deal with ground 1. 23 Then it will deal with ground 3. Did the Court below err in law by finding that a second notification pursuant to s 66(1) of the Act to the first and second respondents had occurred? 24 As noted above, the primary judge first found the communication received 16 February 2015, constituted a second, valid notification of the delegate's refusal decision, for the purposes of s 66(1) of the Act. In the opinion of the Court, the primary judge erred in so finding because, as a matter of fact, that communication cannot be so characterised. 25 The facts show that following the telephone call by a departmental officer to the first respondent on 4 February 2015, the Department caused a copy of the letter dated 14 January 2015, and accompanying decision of the delegate refusing the visa application, to be sent to the new address provided by the first respondent. 26 While at the hearing before us these respondents contended that the Court should infer that the written communication received 16 February 2015 was an entirely new communication with a separately dated covering letter dated on or about 16 February 2015, we do not consider that such an inference is reasonably open. As counsel on behalf of the Minister pointed out in the course of argument, the content of the relevant communication was initially identified in the affidavit of the first respondent himself, made 8 May 2015, and filed in the proceeding in the court below. After referring to the telephone call of the Department that he received on 4 February 2015, and stating that he gave the Department his new residential address, the first respondent then stated, in para 10 of his affidavit, that he "received the said documents from the [Minister] about a week after my telephone conversation, which now contained our new address, but the date of the letter was 14/02/2015. (annexed and marked 'A' & 'B')" (as in original). 27 The relevant document in annexure A is the letter from the Department to the first respondent, which is clearly dated 14 January 2015. Plainly the reference in para 10 of the affidavit to "14/02/2015" is a typographical error and is meant to be 14 January 2015. 28 Additionally, the evidence before the Court below and before this Court includes a note of an event recorded by a departmental officer on 16 February 2015, as follows (as in original): Refusal has been returned to sender Noticed client had changed address after notification sent so out of curtesy i have recent orig refusal to current address 29 That record both confirms the re-sending of the 14 January 2015 notification on or about 16 February 2015; and supports the conclusion that the original refusal document was re-sent, including the covering letter dated 14 January 2015, and that an officer of the Department did not purport to recall the 14 January 2015 notification and issue a new or additional notification in its place. 30 While the respondents suggest that there was or may have been another letter, apart from that dated 14 January 2015, received by the first respondent on 16 February 2015, no such letter has been produced and there is no proper basis for inferring that any such letter exists. 31 The simple fact that the 16 February 2015 communication was sent after the telephone call of 4 February 2015 is not, in our opinion, a proper basis upon which to characterise the re-sent letter as a "second notification", as the primary judge did. Nor is the fact that the further communication of 16 February 2015 did not inform the first and second respondents "that there had already been an effective notification by operation of the terms of the statute and the earlier letter sent on 14 January 2015", as the primary judge found at [11] of his reasons for decision. There is nothing in the facts found upon which to fairly base a finding that the Minister had withdrawn the 14 January 2015 notification and was intending to give a second or additional notification. 32 The true position is that the letter dated 14 January 2015 was re-sent to the first respondent and by its terms made it clear that the period in which the first and second respondents were able to lodge a merits review application with the RRT was to be calculated from the date of that letter, not from some other date, such as 4 February 2015 (when the phone call was received) or 16 February 2015 (when the re-sent letter was received). 33 The fact that, when the communication of 16 February 2015 was received by the first respondent there was, on a proper calculation of the review period, only four days remaining in which the respondents could lodge a review application, does not affect the characterisation of the notification given. 34 For these reasons, ground 2 of the appeal is allowed. 35 It follows there is no need to consider the issue raised by ground 1, that is, whether or not more than one notification is possible under s 66 of the Act for the purposes of the Act. Did the Court below err in law by finding that the first and second respondents were denied procedural fairness such that the RRT's decision dated 2 April 2015 involved jurisdictional error? 36 The primary judge found, in the alternative, that procedural fairness was denied in the particular circumstances as they had developed following the dispatching by the Minister of the notification dated 14 January 2015, namely: (1) The first and second respondents had notified a change of address prior to expiry of the review period. (2) They had also engaged in a communication relating to the delegate's decision within that period, in which the Department conveyed that it was forwarding the delegate's decision again to them. (3) The Department in that communication did not identify any covering letter or explain the consequences of the time that was running in respect of the earlier date of the letter. 37 Although the Minister in his initial written submissions on the appeal submitted that the statutory notification regime explicitly excluded additional procedural fairness to an individual, after further consideration, on the hearing of the appeal, counsel for the Minister did not press that submission and did not make a submission that s 51A of the Act had such effect in the circumstances of a case such as the present. Rather, on behalf of the Minister it was submitted that the Department put the first and second respondents on notice of the time period for lodging a review by virtue of the 14 January 2015 notification letter, a copy of which they received on 16 February 2015. 38 The Minister submits the letter provided a clear and express explanation that time started to run on 14 January 2015. To the extent that the primary judge accepted that the re-sent letter contained the warning that the first and second respondents were taken to have received the letter seven working days after the date appearing on it (14 January 2015) and that an application for review of the decision must be made within 28 days after they had been taken to be notified of the decision, but found that it was inadequate, the Minister contends that no duty of procedural fairness, if one existed, was breached. 39 In the alternative, the Minister submits that the scope of procedural fairness is confined to no more than what was actually done by the Department. Any duty to appraise the first and second respondents of the applicable timetable was achieved by re-sending the original letter, which itself explained the timetable. 40 Finally, the Minister submits that even if the Department breached any duty of procedural fairness, this could not have led to a jurisdictional error by the RRT (noting that no breach of procedural fairness by the RRT itself is alleged or apparent). 41 It must be said that the first and second respondents did not engage with these submissions concerning procedural fairness. 42 Amongst other questions not addressed in the submissions of the parties includes the question of what decision, express or implied, or action of the Minister attracted the duty of procedural fairness towards the first and second respondents contended for; and whether, for example, the Minister would labour under some duty, in effect, to warn a protection visa applicant that time for seeking merits review was running every time a refusal letter is returned; or that such a duty arises every time the Department choses to telephone an applicant to advise a refusal letter has been returned unclaimed and enquiring about the applicant's current address. The primary judge's decision assumes a decision was made or action taken by the Department on behalf of the Minister that, in the particular circumstances of this case, attracts a duty of procedural fairness to explain that there was a covering letter that included notification of the right to seek merits review, as well as the period within which merits review would need to be sought. 43 Assuming, as did the primary judge and the Minister on this appeal, that the notification requirements and procedure under the Act does not exclude general law principles of procedural fairness (notwithstanding s 51A of the Act) and that such principles applied to the Minister in the circumstances of this case, the question is whether, as the primary judge found, the Minister can be said in fact to have denied procedural fairness to the first and second respondents. 44 In this case, as a matter of fact, the notification of the refusal decision was actually received by the first respondent on 16 February 2015. 45 At that point, the first and second respondents still had four business days, up to 20 February 2015, to lodge a merits review application with the RRT. 46 There was no evidence before the Court below or before this Court to explain any reason why they did not and could not have lodged a review application within the relevant period. 47 In a practical sense, any arguable duty owed to the first and second respondents on behalf of the Minister to emphasise, during the telephone call of 4 February 2015, the right to seek merits review and the period within which review rights needed to be exercised by them was satisfied by the actual provision of the 14 January 2015 notification letter on 16 February 2015. 48 In our opinion, on any reasonable reading of the letter dated 14 January 2015, the first and second respondents were notified of the period within which they needed to make an application for review of the refusal decision in the RRT. They failed or neglected to make any such application until 4 March 2015, when the review period had concluded. It is accepted there was no power in the RRT at material times to extend the review period. 49 In these circumstances, it cannot be said that, if there were any relevant duty on the part of the Minister to accord procedural fairness to the first and second respondents by pointing out the need for them to act with some alacrity, such duty was breached. Conclusion and orders 50 For these reasons, the appeal should be allowed. 51 We should note in passing that it is always open to the Minister, under s 48B of the Act, if the Minister thinks that it is in the public interest to do so, by written notice given to a particular non-citizen, to determine that s 48A (which prohibits the making of a further application for a protection visa where the grant of the visa has been refused, or having a further application for a protection visa made on the applicant's behalf) does not apply to prevent an application for a protection visa being made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given. In a case such as the present, the exercise of power under s 48B could mitigate the arbitrary operation of s 494C(4) of the Act by allowing the protection visa application process to be started anew. That, however, is an administrative decision for the Minister, not for this Court. 52 We will hear from the parties on the question of costs, noting that when the appeal was dismissed as against the third respondent, costs on that part of the appeal were reserved. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices North, Barker and Mortimer. Associate: Dated: 11 March 2016 SCHEDULE OF PARTIES WAD 585 of 2015 Respondents Fourth Respondent: ADMINISTRATIVE APPEALS TRIBUNAL