Le v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The appellant is a citizen of Vietnam. Following her marriage to an Australian citizen, she applied for a Partner (Residence) (Class BS) visa under the Migration Act 1958 (Cth) (the Act). One of the prerequisites for the grant of such a visa is that the applicant be living in a genuine and continuing relationship with the nominating spouse. In a statutory declaration in support of her application, the appellant declared that she and her husband lived together in a de facto relationship when the application was lodged but that they had since married on 24 May 2001 and had been living together as husband and wife since that time. 2 On 26 October 2004, a delegate of the respondent, the Minister for Immigration and Citizenship (the Minister), on the basis of the information available, decided to refuse to grant a Partner (Residence) (Class BS) visa to the appellant. The available information referred to in the decision record of the delegate included a letter of 9 December 2003 from the appellant's husband saying that their relationship had broken down, and the failure by the appellant to provide further information regarding the limited circumstances under which an application for permanent residence could proceed, despite the fact that the relationship with a sponsoring partner had broken down. 3 On 27 May 2006, the appellant commenced a proceeding in the Federal Magistrates Court seeking orders that the delegate's decision be set aside. While the Minister initially filed a notice of objection to the competency of the proceeding, on the ground of non compliance with the time limits provided for in the Act, the Minister subsequently accepted that the proceeding had been commenced within 28 days of the notification to the appellant of the delegate's decision. On 25 August 2006, the Federal Magistrates Court dismissed the proceeding with costs. On 11 September 2006, the appellant filed a notice of appeal to the Federal Court from the orders of the Federal Magistrates Court. 4 The basis of the appellant's contention that the decision of the delegate should be set aside is that it was tainted with jurisdictional error. Section 57 of the Act relevantly provides that the Minister must give to an applicant particulars of any information that the Minister considers would be the reason or part of the reason for refusing to grant a visa. Failure to comply with the requirements of s 57 constitutes jurisdictional error. The appellant contends that the Minister failed to comply with s 57. The question in the proceeding is whether the Minister complied with s 57 by sending a letter to the appellant at the last residential address of the appellant known to the Minister. That question in turn depends upon the proper construction of s 494D(1) of the Act. 5 The effect of s 494D(1) is that, if an applicant gives the Minister a written notice of the name and address of another person who is authorised by that applicant to receive documents in connection with matters arising under the Act, the Minister must give that other person, instead of the applicant, any documents that the Minster would otherwise have given to the applicant. Under s 494D(3) the applicant may vary or withdraw such a notice at any time. 6 Under s 494D(2), if the Minister gives a document to such other person ("the Authorised Recipient"), the Minister is taken to have given the document to the applicant, although the Minister is not prevented from giving the applicant a copy of any document given to the Authorised Recipient. Under s 494D(4), the Minister may communicate with the applicant by means other than giving a document to the applicant. However, in such a case, the Minister must give the Authorised Recipient notice of the communication. 7 On 23 June 2003, the appellant submitted to the Minister, pursuant to s 494D(1) of the Act, a form of "Authorisation of Person to Act and Receive Communication" ("the Authorisation"). By the Authorisation, the appellant authorised Robert George Johnstone to act on her behalf in relation to her "application/sponsorship in dealings with the Department". That included authorising the Department to send to Mr Johnstone any communication, documents or notifications relating to the appellant's "application/sponsorship that would otherwise have been sent" to her. The Authorisation stated that Mr Johnstone's address was as follows: "PO Box 282 INALA QLD 4077" The Authorisation also stated an email address for Mr Johnstone. 8 Section 52(3B) of the Act provides that, if a visa applicant proposes to change the address at which he or she intends to live, the visa applicant must tell the Minister the address. On 15 July 2003, the appellant provided to the Department, pursuant to s 52(3B) of the Act, a form of "Change of Address". That form stated that the appellant's new contact details and residential address were: '92 Irwin Terrace OXLEY QLD.' The form stated that the appellant's address for correspondence was the same address. 9 On 9 December 2003, the Minister received a document dated 8 December 2003 purporting to be from the appellant's husband. The document relevantly said: "I would like to let you know that our relationship was finished, so our relationship is no longer continuing. Therefore, from now on I had no responsible [sic] anything about her, because we are not living together any more…" 10 Following receipt of that document, the Minister sent a letter to the appellant on 11 December 2003, addressed as follows: "Ms Anh Quynh Le C/o Robert G Johnstone PO Box 282 INALA QLD 4077" Relevantly, that letter said: "This Department has received information indicating that you may no longer be living with your sponsoring partner, and that the relationship has ended. … If you no longer wish to continue with your current spouse application, please respond in writing to the below listed address… However, if you wish to continue with your application, please provide details in writing of your current circumstances…" The Minister received no response to the letter of 11 December 2003. 11 The delegate's decision record states that, on 9 February 2004, the case officer dealing with the appellant's visa application telephoned Mr Johnstone on the number contained in the Authorisation and was informed that Mr Johnstone was no longer employed by 'the company', and that 'the company' had discontinued dealing with migration matters. While that statement may not necessarily prove that Mr Johnstone was no longer employed by a company dealing with migration matters, it would be admissible to prove that the case officer was told that was the fact. 12 On 6 May 2004, the Department sent an email to the email address specified in the Authorisation. The email said: "Dear Mr Johnstone I refer to our letter dated 11 December 2003 requesting further information to enable processing of Ms Le's application for permanent residence to continue. As I have been unable to contact you by the telephone, would you please advise me if you are still acting on behalf of Ms Le." The Department received a delivery failure report indicating that the email had not been delivered because the mailbox in question was unavailable. 13 On 21 September 2004, the Minister sent a letter of that date, addressed to the appellant at the address in Oxley specified in her change of address form of July 2003. The letter stated that the Department had information that the appellant was no longer living in a genuine and continuing relationship with her husband and set out three circumstances in which an applicant may continue to be considered for the grant of a visa on spouse grounds, despite the fact that the relationship had ended. The letter asked the appellant to provide certain documents within 28 days and ended by saying: "After the time frame in which you are required to provide the documents has lapsed I will proceed to decide your application on the basis of the information held on file at that time (unless, of course, you have indicated a reasonable timeframe [sic] for seeking the required documents)." The Minister received no response to the letter. 14 On 25 October 2004 the Minister again sent an email in the same terms to the email address specified in the Authorisation. Once again the Minister received the response that the email had not been delivered because the mailbox was unavailable. 15 It is against that background that the Minister's delegate made the decision on 26 October 2004 to refuse to grant a visa to the appellant. Clearly enough, part of the reason for the decision was the information contained in the letter of 8 December 2003 from the appellant's husband to the effect that she and her husband were no longer living together and that their relationship had ended. The Minister accepts that, if the Minister failed to give particulars of that information to the appellant, the delegate's decision involved jurisdictional error by reason of failure to comply with s 57 of the Act. The Minister contends, however, that the letter of 21 September 2004 was sufficient compliance with s 57. Hence, the question is whether the effect of s 494D was to preclude the Minister from relying upon that letter as satisfying the requirements of s 57. 16 Mr Johnstone had been a registered migration agent. However, his registration lapsed on 29 July 2004. That may explain why Mr Johnstone did not respond to the letter of 11 December 2003 or the emails of 6 May 2004 and 25 October 2004. In any event, the primary judge concluded that, from a date earlier than 29 July 2004, Mr Johnstone had not been working or practising at the address given in the Authorisation. That address, of course, was only a post office box. However, the Authorisation contained no other address for Mr Johnstone. His Honour concluded that, in effect, there was no Authorised Recipient at that address and there was no other authorised address. His Honour therefore concluded that Mr Johnstone had abandoned the role of Authorised Recipient. In those circumstances, his Honour found that, with effect from 6 May 2004, there was no Authorised Recipient in respect of the appellant's visa application. 17 His Honour also found that the address at 92 Irwin Terrace, Oxley, Queensland was the last known address of the appellant held by the Department and that the Minister therefore had no other option but to write to the appellant at that address. His Honour held that, if an Authorised Recipient abandons an address without providing a forwarding address, be it by email or by post or by telephone, there is no Authorised Recipient from that time. 18 However, that conclusion is not in accord with the express language of s 494D. The clear object of that provision is to empower the Minister to give documents to an applicant who has satisfied the requirements of s 494D(1). Once an applicant gives the Minister written notice of the name and address of another person as being authorised to receive documents, the Minister must give that other person any documents that the Minister would otherwise have given to the applicant, instead of giving them to the applicant. 19 Section 494D says nothing about how the Minister is to give documents to the Authorised Recipient. That matter is dealt with by s 494A. Thus, where a provision of the Act requires the Minister to give a document to a person, which must include an Authorised Recipient, and the provision does not state that the document must be given by one of the methods specified in s 494B or by a prescribed method, the Minister may give the document to the person by any method that the Minister considers appropriate, including one of the methods specified in s 494B. 20 Section 494D may present problems where the Authorised Recipient dies or where the name and address of which written notice was given to the Minister by an applicant were fictitious. Neither of those circumstances arises in the present case. That is to say, it has not been suggested that Mr Johnstone did not exist and did not have the address specified in the Authorisation. Nor has it been suggested that Mr Johnstone is no longer living. 21 There is nothing in s 494D to suggest that the requirement of s 494D(1), for the Minister to give documents to the Authorised Recipient, comes to an end otherwise than as provided for in s 494D(3). Thus, until an applicant withdraws a notice given under s 494D(1) or varies such a notice, for example by substituting a different person or perhaps a different address, the Minister must give documents to the Authorised Recipient. 22 However, the method by which the document is given to the Authorised Recipient is a matter for the Minister. That is to say, under s 494A, the document is to be given by a method that the Minister considers appropriate. As s 494A contemplates, it may be that the Minister would consider that one of the methods specified in s 494B is appropriate. 23 The methods specified in s 494B are as follows: · Section 494B(2): handing the document to the Authorised Recipient. · Section 494B(3): handing the document to another person who is at the last residential or business address provided to the Minister by the Authorised Recipient for the purposes of receiving documents. · Section 494B(4): dating the document and then despatching it by prepaid post to the last address for service provided to the Minister by the Authorised Recipient for the purposes of receiving documents or the last residential or business address provided to the Minister by the Authorised Recipient for the purposes of receiving documents. · Section 494B(5): transmitting the document by facsimile, email or other electronic means to the last number or electronic address provided to the Minister by the Authorised Recipient for the purposes of receiving documents. 24 Nevertheless, an unequivocal requirement of s 494D(1) is that the Minister must give a document to the Authorised Recipient instead of to an applicant. Another unequivocal effect of s 494D(2) is that, by giving a document to the Authorised Recipient, the Minister is taken to have given the document to the applicant. 25 It may be that one of the objects of s 494D is to benefit applicants. The fact that, under s 494D(4), the Minister must give the Authorised Recipient notice of a communication with the applicant, suggests that some protection for an applicant is contemplated. However, it is clear enough that the primary object of s 494D is to eliminate uncertainty as to whether a document has been given to an applicant. So long as the Minister has given a document to an Authorised Recipient, by a method that the Minister considers appropriate, that applicant is taken to have been given the document. That consequence flows whether or not the document comes to the attention of the Authorised Recipient. A fortiori, the consequence flows whether or not the document ever comes to the notice of the applicant. That certainty is of considerable advantage to the Minister in the administration of the Act. 26 Section 494D does not require that a document be given to the Authorised Recipient at the address contained in the written notice given by an applicant. So long as the document is given to the Authorised Recipient by a method that the Minister considers appropriate, the document is taken to have been given to the relevant applicant. 27 There is no warrant in the language of s 494D for concluding that, simply because the Minister concludes that an Authorised Recipient is no longer at the address specified in an applicant's notice under s 494D(1), s 494D ceases to operate. Section 494D is triggered by an applicant giving written notice of the name and address of another person. It operates until that notice is varied or withdrawn under s 494D(3), putting aside the possibility of a fictitious name and address or the death of the Authorised Recipient to the knowledge of the Minister. Those cases do not apply here and nothing said here should be taken as having any application in such a case. 28 The presence of Division 3A of Part 3 of the Act reinforces the construction indicated above. The objects of that division are to ensure that clients of inactive migration agents are not unduly disadvantaged by the agent becoming inactive and that clients of deceased migration agents are not unduly disadvantaged by the death of the agent. In order to achieve those objects, the Migration Agents Registration Authority is empowered to obtain originals or copies of client documents from inactive migration agents or from the legal personal representatives of deceased migration agents and to give the originals or copies to the clients concerned. Thus, if an applicant has given a notice under s 494D(1) and documents have been given to an authorised recipient accordingly, the applicant has a means of obtaining the documents from the authorised recipient or his or her legal personal representative. 29 It is incumbent upon an applicant to remain in communication with a person who is authorised to receive documents under s 494D(1) until the applicant withdraws the notice given under that provision or varies it pursuant to s 494D(3). It is not for the Minister to ascertain whether or not an Authorised Recipient has died or is inactive. So long as the Minister is able to give documents to that Authorised Recipient by a method that the Minister considers appropriate, the applicant will be taken to have received the documents. Furthermore, the Minister must give a document to the Authorised Recipient. 30 In the present case, it is common ground that the document sent to Mr Johnstone on 11 December 2003 did not satisfy the requirements of s 57 of the Act. While it is also common ground that the Minister's letter of 21 September 2004 would have satisfied the requirements of s 57, had it been given to the appellant, that letter was not given to Mr Johnstone. Accordingly, the letter is not taken by s 494D(2) to have been given to the appellant. The Minister accepts that, if the notice under s 494D(1) was still operative at 21 September 2004, the letter of 21 September 2004 was not given to the appellant. 31 If the letter did in fact come to the attention of the appellant, a question may arise as to whether there was jurisdictional error. However, in the absence of a finding that the letter actually came to the attention of the appellant, there is no basis for concluding that it was given to the appellant so as to satisfy s 57. There was, therefore, a failure to comply with s 57 of the Act. That failure constituted jurisdictional error. That is to say, the appellant did not have the opportunity of endeavouring to satisfy the Minister that circumstances existed whereby she may be entitled to the visa applied for, even though she was no longer living with her husband. 32 The Minister contended that, even if there were jurisdictional error by reason of the failure to comply with s 57 of the Act, there would be no utility in granting the relief claimed by the appellant and setting aside the delegate's decision. The Minister contended that, at the time of the decision, the appellant was not able to satisfy any of the three limited circumstances under which her application for permanent residence could proceed. However, the appellant's complaint is that she was never given the opportunity to do so because she was never informed of the letter from her husband indicating the termination of her relationship with him. It is not incumbent upon the appellant to demonstrate that she could have made a difference. It is incumbent upon the Minister to demonstrate that the appellant could not have made a difference had she been notified. The Minister has not done so. 33 Secondly, the Minister says that, even if a letter in terms of the letter of 21 September 2004 had been sent to Mr Johnstone, there would have been no different result because the letter would not have been passed on to the appellant. Once again, however, it is for the Minister to establish that that is so. That is no more than a matter of speculation. It is possible, even though it may be unlikely, that a letter in the terms of that of 21 September 2004 might have prompted action that the letter of 11 December 2003 did not prompt. The fact that Mr Johnstone is no longer a registered migration agent and that his email address was unattended does not establish conclusively that there would have been no response in September to a letter in the terms of the letter of 21 September 2004. The Minister has not established that there would not have been a different result had there been compliance with s 494D(1). 34 In the circumstances the appropriate orders are as follows: (1) The name of the respondent be changed to Minister for Immigration and Citizenship. (2) The appeal be allowed, the orders of the Federal Magistrates Court made on 25 August 2006 be set aside and the following orders be made in lieu thereof: 2.1 The decision of the respondent made on 26 September 2004 be quashed. 2.2 The matter be remitted to the respondent for reconsideration according to law. 2.3 The respondent pay the applicant's costs of the proceeding. (3) The respondent pay the appellant's costs of the appeal. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Emmett, Allsop and Middleton.