Maroun v Minister for Immigration and Citizenship

Federal Court of Australia|2009-11-12|Before: Jagot J

REASONS FOR JUDGMENT 1 This is an appeal against orders of the Federal Magistrates Court dismissing an application for review of a decision of the Migration Review Tribunal (the Tribunal). 2 The appellant sought review on the ground of alleged jurisdictional error by reason of the Tribunal wrongfully refusing to exercise jurisdiction on the basis of the application being out of time. Before the Federal Magistrates Court the appellant submitted that the Tribunal erred in that the prescribed time limit - 28 days after notification of the decision under s 347(1)(b)(i) of the Migration Act 1958 (Cth) - had not yet commenced as notification of the decision of the Minister's delegate refusing the appellant's visa application had not been given as required by law. The Minister accepted that if notice had not been given as required by law, then time would not have started to run against the appellant. The Federal Magistrates Court held that notice was given as required (Maroun v Minister for Immigration & Anor [2009] FMCA 535). 3 The appellant claims that in dismissing the application for review the Federal Magistrates Court erred in three respects as follows: (1) It was not open to the Federal Magistrates Court to find that notice of "where the application for review can be made" had been given as required by s 66(2)(d)(iv) of the Migration Act. (2) It was not open to the Federal Magistrates Court to find that notice was given "within 3 working days (in the place of dispatch) of the date of the document" as required by s 494B(4)(a) of the Migration Act. (3) The notice was not sent by any method specified in s 494B of the Migration Act. 4 I deal with each of these issues below.

NOTICE GIVEN WITHIN 3 WORKING DAYS? 23 As the letter was sent by post, s 494B(4)(a) of the Migration Act applies. That section requires the notice to be dispatched within 3 working days of the date of the document. The document is dated 20 August 2004. That was a Friday. Three working days after that date was 25 August 2004. The Federal Magistrate held that markings on the envelope, together with Ms Carrillo's evidence, led to the inference that the notice was dispatched by 24 August 2004 and thus within the time required by s 494B(4)(a). 24 The appellant submitted that, in so holding, the Federal Magistrate erred. According to the appellant, first, Ms Carrillo had nothing to do with the dispatch of the envelope and said she had no idea whether the envelope would have been sent within that time. Second, Ms Carrillo said that the Department kept records of the sending of documents by registered post but no records had been produced, giving rise to a Jones v Dunkel inference that the letter was not dispatched as required. Third, the markings on the envelope could not be inferred to have been made by Australia Post (as opposed to the Department, for example) as there was no evidence about the making or provenance of those markings (see, by analogy, the Minister's submissions in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 77; [2000] FCA 377 at [16] and [23]). 25 I do not accept these submissions. It may be accepted that Ms Carrillo was not responsible for posting the envelope. But she did not simply say she had "no idea" about the process for dispatch. She gave evidence about the Department's system. This included the fact that she placed envelopes in the out tray on the same day she signed the letter. Further, that the usual practice was for the tray to be emptied by the end of each day, having been collected by those responsible for dispatch. This evidence has to be considered together with the evidence presented by the envelope. The Federal Magistrate was entitled to draw rational inferences from the face of the envelope including as to the provenance of markings thereon. The envelope contains two references to the date 24 August 2004. Given Ms Carrillo's evidence and the other markings on the document (particularly the return to sender marking showing that Australia Post handled the envelope) it was open to the Federal Magistrate to find that Australia Post handled the envelope on 24 August 2004. More to the point, the appellant has not proved to the contrary. 26 The fact that the Department has not produced records of the dispatch of the envelope does not support a Jones v Dunkel inference that the envelope was not sent within the required time. There was evidence available supporting an inference of dispatch of the letter within the required time. The appellant did not advance contrary evidence. In these circumstances it cannot be said that anything remained that the Minister was required to explain or contradict. 27 Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 77; [2000] FCA 377 also does not assist the appellant. That case did not turn on the markings on the envelope. The Court did not say anything inconsistent with the proposition that a court may draw any rational inference available from the face of any admissible document. 28 For these reasons I am not persuaded that the Federal Magistrate erred in finding compliance with s 494B(4) of the Migration Act.

NOTICE GIVEN BY A METHOD IN SECTION 494B? 29 Section 494B specifies the methods by which the Minister may give a document to a person. If such a method is used s 494C provides that a person is taken to have received the document within the time periods prescribed. The two relevant methods are described in ss 494B(4) and (5) as follows: (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. (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. 30 In his visa application form the appellant completed question 18 (his residential address in Australia). He did not complete question 20 (his address for correspondence). He completed question 21 which asked "Do you agree to DIMIA communicating with you by facsimile, e-mail or other electronic means?". He answered "yes" and gave his email address. This question was followed by a note stating "Note: If this visa application is refused, you will be notified by mail". He did not complete question 73 "Options for receiving written communications". 31 The Federal Magistrate found that the question of purpose had to be determined objectively. On that basis the Minister was entitled to send the notice to the appellant's residential address in Australia under s 494B of the Migration Act. 32 The appellant submitted that s 494B(4) did not apply as the appellant did not provide his residential address in Australia for the purposes of receiving documents as required by s 494B(c)(ii) of the Migration Act. The only address the appellant gave for that purpose was his email address as referred to in s 494B(5) but the notice was not sent to his email address. The words "for the purposes of receiving documents" are words of limitation. They can be contrasted with the more general description in ss 379A(4)(c) and 441A(4)(c) (which refer to the address "provided…in connection with the review"). By analogy to Chand v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 140; [2000] FCA 1743 at [14]-[17], the appellant elected to receive correspondence at his email address. Further, the residential address in Australia was not the appellant's last residential address as he also gave an address in Lebanon whereas the requirement for a last address connotes a single address. 33 I do not accept these submissions. The appellant provided his residential address in Australia. He did so in a form which asked for an address for correspondence but which the appellant chose not to provide. He agreed to receive documents by email on a form which told him that if his visa application was refused notice of that refusal would be given by mail. That can be understood only as the Minister advising the appellant that despite his provision of an email address any notice of refusal would be to a postal address as provided and not to an email address. In the context of the form as a whole the appellant must be taken to have provided his residential address as his address for the purpose of, at the least, receiving any notice of refusal of the appellant's visa application. 34 Chand v Minister for Immigration and Multicultural Affairs turned on its own facts and is not authority to the contrary. As the Minister submitted, choice of method was for the Minister to decide. 35 On the basis of the form as lodged the appellant had provided his residential address as an address for the purpose of receiving documents. The Federal Magistrate was correct in so finding. 36 As to the further submission about the address not being the appellant's "last" address, the ordinary meaning of the word "last" in s 494B(4) does not mean "single" or "only". It means "most recent at the time in question". The appellant gave his address when he lived in Lebanon. However, as the appellant was physically in Australia at the time of his application his Australian address was his "last" (that is, most recent) residential address. 37 For these reasons I am not persuaded that the Federal Magistrate erred in finding compliance with the address requirements of s 494B(4) of the Migration Act.

CONCLUSIONS 38 The appellant has not demonstrated any error by the Federal Magistrates Court. It follows that the appeal must be dismissed with costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

Counsel for the Appellant: Mr P D Reynolds

Counsel for the First Respondent: Mr G R Kennett

Solicitor for the Appellant: Parish Patience Immigration Lawyers

Solicitor for the First Respondent: Australian Government Solicitor

Date of Hearing: 2 November 2009 Further written submissions received 5 and 6 November 2009

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