Pathania v Minister for Immigration & Border Protection

JUDGE: GILMOUR J DATE: 19 NOVEMber 2015 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of a judge of the Federal Circuit Court of Australia (Pathania v Minister for Immigration & Anor [2015] FCCA 932) dismissing an application for review of a decision of the Migration Review Tribunal (Tribunal) made on 19 December 2013 holding that it had no jurisdiction to review a decision of a delegate of the first respondent (Minister) refusing the appellant a Student (Temporary) (Class TU) visa.

Issues 2 There are two issues in this appeal. First, whether s 494B of the Migration Act 1958 (Cth) (the Act), concerning the communication of documents by the Minister to a person, is subject to the requirements of procedural fairness and, if so, whether there was a breach of those requirements in the appellant's case. Second, whether there is a doctrine of "administrative estoppel" by conduct and, if so, whether that doctrine applied on the facts of the appellant's case.

Factual background 3 The appellant is a citizen of India. On 24 July 2012 the Minister sent notification of refusal of the appellant's application for a student visa by pre-paid post to his residential and postal address entered by him on the electronic visa application form he lodged with the Department of Immigration. I have described the relevant details of this form in more detail below. 4 At the time of that decision the appellant was no longer resident at that address but, in contravention of s 52(3B) of the Act, had not notified the Minister of that fact. He did not receive the decision until September 2013. An application for review of the Minister's decision was lodged with the Tribunal on 27 September 2013. On 19 December 2013, the Tribunal found that the appellant was lawfully notified by mail of the Minister's decision pursuant to s 494C of the Act on 2 August 2012, that the time for applying for review expired on 23 August 2012, and that as a consequence his application for review was out of time and the Tribunal had no jurisdiction in the matter. 5 The prescribed form that the appellant completed in applying for a student visa, and lodged electronically, asked for, and he provided, his residential address: 11/214-220 Princes Highway, Fair Meadow, New South Wales 2519 Australia. Then under the main heading "Contact details" he was asked for his postal address. The postal address that he provided was the same as his residential address. 6 Then, under sub-heading "Communicating with you" the form stated: We can communicate about your application more quickly using email and/or fax. Do you agree to this Department communicating with you via email and/or fax? to which the appellant answered, "Yes" and provided his email address. 7 He also stated "Yes" as part of a "Declaration" at the end of the form in answer to the following question: Do you acknowledge that you must immediately advise this Department if you become aware that any information provided in this form is incorrect or if there is a change in your circumstances at any time? (Emphasis added.) 8 Subsequent correspondence between the Department and the appellant was entirely by email. Indeed the approval of the appellant's previous visa application made in 2011 was by email. His unchallenged evidence was that he had not received any previous communication by post. The only communication by pre-paid post was the Minister mailing the decision of 24 July 2012 on that date to the appellant's residential address provided by him in the form but which, at that time, was no longer his residential address. 9 The appellant's application for review of the delegate's decision was received by the Tribunal on 27 September 2013. For the reasons given by the Tribunal, if the delegate's letter of 24 July 2012 was effective notification, the time period under s 347(1)(b)(i) of the Act, read with reg 4.10(1)(a) of the Migration Regulations 1994 (Cth) (the Regulations) had expired on 23 August 2012, so the Tribunal had no jurisdiction to review the delegate's decision.

Relevant statutory provisions 10 Section 66(1) of the Act requires the Minister to give notice of a decision. Regulation 2.16 of the Regulations requires that for the purpose of s 66(1), notice must be given by one of the methods in s 494B where the Minister refuses to grant a visa. Section 494B gives the Minister several ways of notifying the applicant. Relevantly it provides: 494B Methods by which Minister gives documents to a person Coverage of section (1) For the purposes of provisions of this Act or the regulations that: (a) require or permit the Minister to give a document to a person (the recipient); and (b) state that the Minister must do so by one of the methods specified in this section; the methods are as follows. ... Giving by hand (2) One method consists of the Minister (including by way of an authorised officer) handing the document to the recipient. Handing to a person at last residential or business address (3) Another method consists of the Minister (including by way of an authorised officer) handing the document to another person who: (a) is at the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; and (b) appears to live there (in the case of a residential address) or work there (in the case of a business address); and (c) appears to be at least 16 years of age. Dispatch by prepaid post or by other prepaid means (4) Another method consists of the Minister dating the document, and then dispatching it: (a) within 3 working days (in the place of dispatch) of the date of the document; and (b) by prepaid post or by other prepaid means; and (c) to: (i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or (ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; or (iii) if the recipient is a minor - the last address for a carer of the minor that is known by the Minister. Transmission by fax, e mail or other electronic means (5) Another method consists of the Minister transmitting the document by: (a) fax; or (b) e mail; or (c) other electronic means; to: (d) the last fax number, e-mail address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents; or (e) if the recipient is a minor - the last fax number, e-mail address or other electronic address, as the case may be, for a carer of the minor that is known by the Minister. 11 Section 494C, a deeming provision, states the times at which notices given pursuant to s 494B are taken to be received. 12 Section 52(3A) and (3B) provide: (3A) A visa applicant must tell the Minister the address at which the applicant intends to live while the application is being dealt with. (3B) If the applicant proposes to change the address at which he or she intends to live for a period of 14 days or more, the applicant must tell the Minister the address and the period of proposed residence.

The Federal Circuit Court decision 13 In dealing with the issue of natural justice raised in ground 1, particular (a) of the Amended Application before the Federal Circuit Court, the primary judge found that ss 494B and 494D of the Act served the purpose of providing certainty in the methods by which the Minister can communicate with a visa applicant and the times by which a visa applicant is deemed to have received a communication from the Minister. His Honour held that those purposes would be defeated if s 494B were subject to a duty to accord procedural fairness. Thus, he concluded that s 494B was not subject to a duty to accord procedural fairness at [25]-[26]. 14 Having so found, his Honour then considered whether, in the event that he was wrong, the appellant had been denied procedural fairness. His Honour's conclusion was that the appellant, having provided a postal address, was not reasonably entitled to believe that the Department would contact him only by email, and should, as he was obliged by s 52(3B) to do, have informed the Minister of his proposed change of address. 15 As to the issue of administrative estoppel the primary judge concluded that the facts did not support the finding of an estoppel even assuming such a doctrine applied to the Executive.

Natural justice 16 The appellant submits that s 494B gives the Minister a discretion as to the method to be used in notifying a person of a decision. The appellant submits that this discretion is not and cannot be entirely unbridled or at large, citing Wotton v State of Queensland (2012) 246 CLR 1 at [9]-[10] and Attorney-General for the State of South Australia v Adelaide City Corporation (2013) 249 CLR 1 at [214]-[216]. Further, he submits that a person exercising the power must comply with any statutory requirements that may affect the discretion, and the discretion must not be exercised in a manner that is manifestly unreasonable, citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. Thus, he submits, a discretionary power must be exercised in accordance with any applicable law. The appellant submits that the applicable law includes the requirements of natural justice or procedural fairness unless those requirements are clearly excluded by the governing statute, and cites the following passage from Annetts v McCann (1990) 170 CLR 596 at 598 in support: It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment. ... 17 In my opinion, this submission is misconceived. The principle stated in Annetts has no application to this appeal. Further, the appellant submits that the principle as relevant to the issue of natural justice in the present case was stated in WZARB v Minister for Immigration and Citizenship (2013) 136 ALD 77 at [20] by Logan J (with reference to Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 and Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1), where his Honour stated: Where a decision-maker is bound to afford natural justice in the exercise of a statutory or other power to make an administrative decision, words or conduct by that decision-maker as to the procedure which will be followed prior to the exercise of that statutory power can inform the content of the natural justice obligation in the circumstances of a particular case and, if that procedure is subsequently not observed by the decision-maker, can lead to a conclusion that an individual affected by the decision has not been afforded natural justice. 18 Similarly, I do not consider this principle to be applicable here. The method the Minister chose, under s 494B of the Act, to notify the appellant of the decision was not an exercise of a discretionary statutory power. It was a statutory obligation upon the Minister under s 66 to notify the appellant of the decision. No discretion was involved. The Minister was required under s 494B to discharge that obligation by one of several methods. The choice as to which method was a matter for the Minister: Maroun v Minister for Immigration and Citizenship (2009) 112 ALD 424 at [34]. In that limited sense it was at his discretion. Once a choice was made as to which method of notification was to be used, the Minister was required to comply strictly with the statutory provisions relating to that method. 19 Moreover, the choice as to which method to use is not, in my opinion, in any relevant sense, an administrative decision attracting the body of administrative law upon review of administrative decisions. 20 It is no more than an administrative act in conformity with statutory requirements. 21 Accordingly, this case, involving a choice being made as to which mode of notification to use pursuant to s 494B in order to meet the obligation under s 66, is not one where the delegate was making an administrative decision, let alone one subject to an obligation to afford natural justice. 22 The appellant contends that where the form completed by an applicant strongly infers that communication will be by electronic means because that will better facilitate communications, and all communications prior to the decision are by email, fairness requires that the decision itself be communicated by email, or that the applicant be given notice by email or on the visa application form if the Minister did not intend to communicate the decision according to what was, in the appellant's case, established practice. He submits that this is so despite the requirement of s 52(3B) that the applicant notify the Minister of a new residential address, which could have no effect on the expectation and representation by conduct that the Minister would communicate by email. 23 I do not accept this submission. It has no basis in principle or in the relevant legislative provisions concerned and to which I have referred. 24 The appellant submits that, contrary to his Honour's finding at [30], he was reasonably entitled to believe on the basis of the consistent practice of the Department over a period of some three years, that he would be communicated with by email. The requirement that he give a postal address could reasonably be construed as being necessary if he did not authorise correspondence by email. 25 I do not accept this submission. 26 The circumstances, I accept, are not relevantly distinguishable from those considered in Minister for Immigration and Border Protection v Kim (2014) 220 FCR 494 at [34]-[47]. There 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. Kim at [41]-[43] followed the judgment on the same point in Haque v Minister for Immigration and Citizenship (2010) 221 FCR 289 at [64]. Haque and Kim were followed in Radzi v Minister for Immigration and Border Protection (2014) 143 ALD 124 at [33]-[35]. No submission was advanced that any of these cases were wrongly decided. 27 As the primary judge observed at [25]-[26], correctly, in my opinion, an obligation of the delegate of the Minister to give notice of the proposed form of communication with the appellant under s 494B, and presumably seek his comment thereon, would defeat the very purpose of ss 494B-494D, which is to provide administrative certainty: Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86 at [58] and [68]. No requirement of procedural fairness attaches to s 494B. 28 The second ground claims that his Honour erred in holding that the Tribunal did not deny the appellant procedural fairness. It is unnecessary in light of my conclusions, to consider this further contention. 29 There was no denial of procedural fairness. The primary judge was correct to so find.

Estoppel 30 The third ground claims that his Honour erred in failing to hold that the Minister was estopped from communicating with the appellant by mail as opposed to e-mail. The primary judge rejected this estoppel contention at [32]-[36] of his reasons, holding that it was not reasonable for the appellant to assume that the Minister would not communicate with him by sending correspondence to his residential address. 31 I do not consider it necessary to explore or determine whether an estoppel can arise against the Executive arising from conduct amounting to a representation. The facts do not support such relief even assuming its availability. There was no relevant representation. The Minister chose a method of communication open to him under s 494B of the Act. The exercise of that choice was not, in any event, relevantly an administrative decision affecting the appellant's rights or interests. It was not the exercise of a discretionary statutory power. The Minister had no choice but to notify the appellant of the refusal decision although he had a choice as to the method whereby he discharged that obligation. None of the authorities advanced in argument by the appellant are directed to circumstances of the kind present in this case. 32 The fourth ground claims that his Honour erred in finding that the Tribunal did not have jurisdiction. This ground, for its success depends upon success in the other grounds. There has been no such success. The primary judge made no error in concluding that the Tribunal did not have jurisdiction. This ground fails. 33 The appeal will be dismissed with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.