Fanani v Minister for Immigration, Citizenship, Migrant Services and... [2021] FCA 595 | Case summary

Discussion 27 The issue in this appeal is, put simply, whether the method of delivery described in the affidavits of Mr Estrin and Ms Kuliukas satisfies the requirements of the Instrument in that the Visa Application must be "delivered by courier service". The primary judge concluded that the Instrument imposes a requirement for the Visa Application to be delivered by a private company that provides courier delivery services, which was not the method provided by the law practice in this case, the result being that the Visa Application was not valid. 28 The appellant agreed with the respondent's submissions concerning the mandatory nature of the requirements prescribed regarding delivery and there being no scope for the concept of substantial compliance, so there is no need to deal with those submissions. 29 The words "by courier service" are not defined in the Instrument. The meaning of the term, as used in the current context, has not received any judicial consideration. 30 It is therefore necessary to consider and interpret what those words mean when they appear in the Instrument. 31 Chief Justice Allsop in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) [2020] FCAFC 192 described, at [3] - [5], the appropriate approach to statutory interpretation in the following terms: Much has been written by the High Court on statutory construction over 35 years, in particular about the relationship between text and context, including purpose. That discussion in the authorities reflects the perennial debate focused on particular statutory provisions, as they arise from time to time for consideration, between so-called clarity of plain meaning (as if such can reliably exist without context) and the ascription of meaning to words in their context. Whilst there can, naturally, often be differences of opinion about the effect and influence of context, including purpose, in respect of any particular provision, there can be no doubt that words are not read in isolation as if they can have meaning without context. Whatever may be the form of expression by individual judges or groups of judges, the task requires the search for applicable principle, not an emphasis on the literality of words of judgments as if they were the text of a statute. Sentences from High Court judgments seen to be favourable to an argument should not be strung together in a particular order to support an argument about the construction of a particular statute, almost as if to create a new, virtual, High Court judgment. The principle is clear: Meaning is to be ascribed to the text of the statute, read in its context. The context, general purpose and policy of the provision and its consistency and fairness are surer guides to meaning than the logic of the construction of the provision. The purpose and policy of the provision are to be deduced and understood from the text and structure of the Act and legitimate and relevant considerations of context, including secondary material. There can be no doubt that the search for principle in the High Court reveals a settled approach of some clarity. The notion that context and legitimate secondary material such as a second reading speech or an Explanatory Memorandum cannot be looked at until some ambiguity is drawn out of the text itself cannot withstand the weight and clarity of High Court authority since 1985. (case references omitted; emphasis added) 32 There was no disagreement between the parties as to the appropriate principles applicable when interpreting the words used in statutory instruments, which are set out in the passage quoted above. 33 As noted above at [22], the Instrument provides that visa applications must either be "posted to" or "delivered by courier service to" specified addresses. 34 The respondent contended that the inclusion of the words "delivered by courier service" was a deliberate legislative choice and to interpret the Instrument in a way that renders these words nugatory would be contrary to the legislative intention. 35 Viewed consistently, the words used describe a method of delivery of a visa application to a specified address. There is no suggestion, on the face of the provision, as to a requirement regarding the nature or identity of the entity involved in the process. 36 The appellant submitted that the two methods specified, namely "posted to" and "delivered by courier service to", indicate an intention to ensure the Department receives original hard copies of visa applications. It was submitted that these methods stand in contrast to others specified including orally, by facsimile, by email or in Internet form. When read literally, but informed properly by context, the reference to "delivery by courier service" is an examination of the form of what was received by the Department, namely: original hard copy. This, it was submitted, was the purpose, and the words must be understood in that context. The weakness in this approach is that it does not take adequate account of the actual words used which specify a method by which the delivery is to take place to each specified address. 37 The respondent argued that the intention of the requirement is to provide an independent means of proving delivery, because of the involvement of a third party, and that this provides certainty. This, it was submitted, is the context in which the words must be considered. This interpretation does not sit easily with the first method specified, namely the "posted to" method, which would allow delivery by ordinary mail. The respondent also suggested a possible intention being to limit the number of different individuals delivering applications to the specified address. It is hard to see how the requirement for each applicant to engage a third-party to "courier" their visa application to the specified address is consistent with this suggested objective, as it would not reduce the number of deliveries. 38 The Explanatory Statement outlined the purpose of the Instrument as being to specify a centralised office of the Department as a place to which applications for Class BU Visas must be posted or delivered. This purpose would support a broader interpretation of the requirement for delivery by courier service. However, to interpret the Instrument as intending to do no more than simply specifying an address would not take adequate account of the words used which refer to methods by which the delivery must be effected. There is no indication in the Explanatory Statement that the permissible method is restricted by reference to the nature or business activities of the entity involved in the delivery of a visa application by courier service. 39 As to the words used, the respondent pointed to the previous requirement, amended by the current Instrument, which was "by courier service, or otherwise by hand". The respondent suggested that the fact of the amendment in those terms (namely, to delete reference to "otherwise by hand") makes clear a deliberate choice to limit the methods for in-person delivery to delivery by way of a courier service and not personal delivery by a visa applicant. This is a factor to be taken into consideration, but it is not determinative. There is no indication why the drafter of the Instrument had made the amendments and this suggested deliberate choice was not reflected in the Explanatory Statement or any other secondary information before the Court. 40 Of course, in this case, there is no suggestion that the appellant delivered the Visa Application personally. That issue does not arise for determination in this case. However, whilst not directly relevant to this case, I would conclude that the words do suggest that applications for Class BU Visas cannot be delivered personally by the visa applicant. 41 The terms "courier" and "a courier service" were considered by Emmett J in Hacker. This consideration was the basis of the decision by the primary judge. 42 In Hacker, Emmett J had concluded (at [39]) that: A courier might be described as a carrier who travels from one place to another to provide a safe and urgent letter or parcel delivery service (see the Australian legal Dictionary). A courier might also be described as a running messenger, a messenger sent in haste or a special messenger (see the Shorter Oxford English dictionary). A courier service as a private company which provides a letter or parcel delivery service, especially one which guarantees a speed or safety (see the Macquarie Dictionary). 43 In Hacker, documents were served by a process server. Emmett J observed (at [39]) "it would be surprising if Mr Warren (the process server) regarded himself as a courier or as conducting a courier service". The factual position was clearly influential. The case was not on all fours with the current facts and illustrates the need to exercise caution in applying commentary from one set of facts into a different set of facts. The observations made in that case were obiter as the resolution of the dispute did not turn on whether there was "courier service" of the bankruptcy notice. 44 In my view, a courier is a person who physically provides a safe and urgent letter or parcel delivery between two places. 45 The primary judge found that a limitation on the permissible method of delivery was intended by use of the combined words "courier service" in the Instrument so that delivery of the specified visa applications must be by a private company that provides courier delivery services. 46 The appellant submitted that there is nothing in Hacker to support a wide-ranging rule that "courier service" means exclusively "private company that provides courier services" and there is no reason to conclude that incorporation as a private company is a requirement. Moreover, the appellant noted, as is correct, that strict literal adherence to a dictionary is not the correct approach to statutory interpretation. 47 Neither party submitted that the requirement for "delivery by courier service" was limited to delivery provided by a commercial courier or a private company. That is undoubtedly correct. 48 The respondent urged that the observations made in Hacker about the difference between courier and a courier service are not confined to the particular scheme but, rather, are of general application and of particular significance in this case. 49 The respondent submitted it was entirely consistent with general usage and common understanding that a courier service is a service provided by person or company who provides the service of delivering items in exchange for payment (including the payment of Goods and Service Tax (GST) for the provision of that service). The appellant asserted that this submission regarding GST is incorrect. The appellant referred to the example of a person who may not meet the GST registration turnover threshold. I agree with the appellant that there is no logical reason why payment of GST should have any bearing on whether an application is delivered by courier service. 50 The respondent contended that the meaning of "courier service" must require a degree of commerciality in the provision of the service. 51 In the Instrument, the method specified is "delivered by courier service" not "delivered by a courier service". Had the letter "a" been included in that method of delivery, the respondent's argument might be stronger as it might indicate a focus on the nature of the entity delivering the document. The format used is suggestive of a description of the method of delivery rather than the entity delivering the service (e.g. by a private company that provides courier delivery services). 52 This conclusion is supported by the fact that, as the appellant pointed out, the courier industry is not regulated. This is an important aspect of the context against which the words used in the Instrument should be understood. Unlike industries such as the legal profession, no regulatory or demarcating criteria exist for courier services. 53 When there is no regulation, it is fair to conclude that any person or entity could be a provider of courier services (including if not, for example, a private company or a commercial carrier). No reference has been made to any bar to entry or to any particular qualification required. 54 Any entity could, in those circumstances, provide the "courier service". It could be the person who physically delivers a visa application or another entity. In those circumstances, there would be no logical reason to impose specific requirements, in the case of delivery of a visa application, as to the nature of, or business activities undertaken by, the entity. 55 The parties were in broad agreement as to a wide diversity of participants which could provide delivery by courier service including providers such as bicycle couriers or Uber drivers. The appellant referred to the fact that the modern economy has moved a long way from clean demarcated businesses run through traditional corporate forms and submitted a "gig economy" casual courier is no less a courier because the person might undertake other tasks such as, for example, an Uber driver or a person who happens to be employed by a law firm. That is undoubtedly correct. 56 There is no obvious or logical reason or purpose, or any reason consistent with words used or the requirements set out in the Instrument, why the words "delivered by courier service" would be limited by reference to provision by a particular type of entity (such as a private company) or by an entity which provides only courier services or by reference to payment of GST. To do so would produce unreasonable and absurd results. These are powerful reasons why such outcomes would not have been intended. 57 The approach I have outlined comfortably fits with the language of the Instrument and is consistent with the Explanatory Statement. 58 The requirement for "delivered by courier service" as used in the Instrument would, in my view, include a delivery organised by an entity such as a law firm pursuant to its arrangements with its clients in appropriate matters. 59 Indeed, the respondent accepted that it would be "potentially open for a law firm to provide a courier service provided that they charged for that service and that was part of the services that they promoted that they provide because there would be that commerciality to that service": Transcript, P - 29 lines 35 to 45. 60 However, the respondent submitted that there is no evidence of the arrangements between the parties and commerciality in those arrangements in the context of payment for the services. 61 The appellant submitted that the primary judge failed to have regard to the uncontested evidence of substance of what actually occurred at the Department's premises on the day in question, namely that what Ms Kuliukas did was to provide delivery by courier service. 62 It is important to consider the particular factual circumstances which have led to this application. The evidence was not challenged. 63 In this case, the affidavits reveal that the actual delivery was undertaken by Ms Kuliukas. 64 Ms Kuliukas deposed to what she did. She travelled from one place to the other to provide a safe and urgent delivery service. The respondent accepted that it might have been possible for Ms Kuliukas to act as a courier (as that term is used in Hacker) in the course of her employment with the appellant's legal representatives but it was difficult to see how she could be instructed by her employer to act in the capacity of a courier service (as that term is used in Hacker). 65 That is not the correct approach. The person who delivers the document may not necessarily be the person who provides the courier service. The person delivering the document may be acting as a courier, but another entity might be involved in providing the service. Using an example described by the parties, the Uber driver or bicycle courier may be acting as a courier with some other entity, such as Uber, providing the service and billing the customer. 66 It is clear that Ms Kuliukas acted as a courier in delivering the application. But what of the role of the law firm, Estrin Saul Lawyers? 67 In his affidavit, Mr Estrin referred to his retainer as follows: "the applicant instructed me to prepare and lodge an application for an Aged Care Dependent Relative (Class BU) Visa…": Estrin Affidavit, AB, p 84, [4]. 68 It is common ground that the requirements for the lodgement of the application involved the application being "delivered by courier service". Otherwise the Visa Application is not valid. 69 The retainer is the professional and commercial arrangement between the solicitor and the client. The terms of the retainer required the solicitor to provide the professional service including lodgement (delivery by courier service) in accordance with the requirements of the Instrument. The solicitor accepted the obligation to arrange delivery by courier service to discharge the obligations imposed by the retainer. 70 It would not make any difference whether the retainer involved payment for services on an item by item basis or whether there was a lump sum payment for all the services or indeed whether the instructions were on a pro bono basis. 71 In each of these circumstances, there is a commercial or professional arrangement which included the solicitor agreeing to have the Visa Application delivered by courier service in accordance with the requirements of the Instrument. 72 In paragraph [5] of his affidavit, Mr Estrin refers to completion of the first aspect of his retainer namely completion of the necessary documents for lodgement. 73 In paragraph [6] of his affidavit, Mr Estrin refers to completion of the second aspect of the retainer, namely: lodgement of the application for the Visa in accordance with the requirements of the Instrument by instructing his employee to deliver the Visa Application (in the capacity as a courier) to the physical address outlined in the Instrument. 74 Ms Kuliukas's affidavit sets out the way in which she strictly performed the instructions which were issued to her by her employer, Mr Estrin, even to the extent of correcting the way in which the department officers were intending to deal with the Visa Application. 75 In those circumstances, I conclude that, as required by the Instrument, the application was delivered by courier service at the address specified in the Instrument and that the Visa Application was, and is, valid.

Fanani v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

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