Minister for Immigration and Citizenship v SZKPQ

Federal Court of Australia (Full Court)|2008-03-06|Before: Emmett J, Bennett JJ

EMMETT J 2 The question in this appeal is whether the manner in which the appellant, the Minister for Immigration and Citizenship (the Minister), notified the first respondent (the Visa Applicant) of a decision by the Minister's delegate to refuse to grant to the Visa Applicant a protection visa under the Migration Act 1958 (Cth) (the Act) was in accordance with the Act. The question raises issues as to the construction of provisions of the Act dealing with the giving of documents to applicants for visas, which determine the time within which an application may be made for review of a delegate's decision by the second respondent, the Refugee Review Tribunal (the Tribunal). 3 The Visa Applicant is a citizen of the People's Republic of China. On 9 December 2003, he lodged an application for a protection visa under the Act. On 2 March 2004, the Minister's delegate made a decision refusing to grant a protection visa to the Visa Applicant. On 20 March 2007 the Tribunal received an application from the Visa Applicant seeking review of the delegate's decision. On 3 May 2007 the Tribunal decided that it did not have jurisdiction in relation to the application for review because the application was made more than 28 days after the Visa Applicant had been notified of the delegate's decision. 4 The Visa Applicant then commenced a proceeding in the Federal Magistrates Court seeking judicial review of the Tribunal's decision of 3 May 2007. On 5 September 2007, the Federal Magistrates Court made orders that the Tribunal's decision be quashed and that the Tribunal determine, according to law, the Visa Applicant's application for review of the delegate's decision of 2 March 2004. 5 On 26 September 2007, the Minister filed a notice of appeal. The notice of appeal was prepared before the transcription of oral reasons given by the Federal Magistrates Court was available. The ground stated in the notice of appeal was that the Federal Magistrates Court erred in holding that the Tribunal's finding, that it did not have jurisdiction to review the delegate's decision, was affected by jurisdictional error. On 17 January 2008, the Minister filed an amended notice of appeal. In the course of the hearing of the appeal, the Full Court granted leave, nunc pro tunc, for the Minister to file the amended notice of appeal.

LEGISLATIVE FRAMEWORK 6 By the operation of s 411 of the Act, the delegate's decision was anRRT-reviewable decision. Section 414(1) of the Act provides that, if a valid application is made under s 412 for review of an RRT-reviewable decision, the Tribunal must review the decision. Section 412(1)(b) relevantly provides that an application for review of an RRT-reviewable decision must be given to the Tribunal within the prescribed period. Regulations 4.31(1) and 4.31(2)(b) together provide that, for the purposes of s 412(1)(b), the prescribed period commences on the day in which the applicant is notified of the decision and ends at the end of 28 days. 7 Section 66(1) of the Act relevantly provides that, when the Minister refuses to grant a visa, the Minister must notify the applicant of the decision inthe prescribed way. Section 66(2) lays down certain requirements concerning the content of the notification of a decision to refuse an application for a visa. Regulation 2.16(3) provides that, when a decision is made to refuse a visa, notice must be given by one of the methods specified in s 494B of the Act. 8 Section 494D(1) provides that, if a person gives the Minister written notice of the name and address of another person (the authorised recipient), who is authorised by the first person to do things on behalf of the first person, including receiving documents, the Minister must give the authorised recipient, instead of the first person, any documents that the Minister would otherwise have given to the first person. If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. 9 Section 494B is concerned with methods by which the Minister gives documents to a person. Section 494B(4) relevantly provides that one method consists of the Minister dating the document and then dispatching it: · within three working days of the date of the document; · by prepaid post; · to either the last address for service provided to the Minister by the recipient for the purposes of receiving documents or the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents. Other methods are specified in s 494B as follows: · the Minister, by way of an authorised officer, handing the document to the recipient: s 494B(2); · the Minister, by way of an authorised officer, handing the document to another person at the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents: s 494B(3); · the Minister transmitting the document by fax, email or other electronic means: s 494B(5).

Only the method specified by s 494B(4) of the Act is relied on by the Minister. However, the language used in ss 494B(2), 494B3) and 494B(5) in dealing with the other methods may inform the meaning of s 494(4).

THE DELEGATE'S NOTIFICATION OF HIS DECISION 10 At the time of lodging his visa application, the Visa Applicant, as contemplated by s 494D, completed a form entitled 'Authorisation of a person to act and receive communication' (the form 956). By the form 956, the Visa Applicant authorised David Deng to act on his behalf in dealings with the Minister's Department in relation to his visa application. That included authorising the Minister's Department to send to Mr Deng any communication, documents or notifications relating to the Visa Applicant's application that would otherwise have been sent to him. The form 956 specified the following as Mr Deng's postal address: 609/368 Sussex Street SYDNEY 2000. Mr Deng signed the form 956, thereby signifying his consent to communication by electronic means. 11 On 2 March 2004, the day of his decision, the Minister's delegate signed a decision record and a letter, both of which were dated 2 March 2004. The letter relevantly said as follows: 'I am writing to you about the protection visa application you lodged on 9 December 2003. ... You have been refused a protection visa because you do not satisfy this criterion. The attached decision record gives the reasons for this decision. ...' The letter went on to state that the Visa Applicant was entitled to have the delegate's decision reviewed by the Tribunal. The letter was addressed at the top to the Visa Applicant at the residential address specified in the form 956. At the foot of the letter the following appeared: cc: David Deng 609/368 Sussex Street SYDNEY NSW 2000 12 On 2 March 2004, a version of the letter, to which was attached a version of the decision record, (together the Notification Documents) was sent by prepaid post to the Visa Applicant at his residential address specified in the form 956. A version of the Notification Documents was also sent by prepaid post to Mr Deng at the address specified in the form 956. It is not clear whether there was an original and a copy and, if so, which was sent to which address. Prepaid post includes ordinary post in respect of which the applicable charge has been paid by way of the fixing of a stamp or other proper means. 13 The Visa Applicant may or may not have received the version of the Notification Documents that was sent by prepaid post to his address. Mr Deng received the version of the Notification Documents sent to him by prepaid post to his address specified in the form 956.

THE REASONS OF THE PRIMARY JUDGE 14 The primary judge held that, in order that a notification is properly given to an authorised recipient under s 66 of the Act, it must be addressed to that authorised recipient. His Honour concluded that it is therefore not sufficient that a notification be sent to an applicant care of the authorised recipient or that a letter addressed to the applicant be copied to the authorised recipient. Nor did his Honour consider that it would be sufficient that the envelope containing a letter addressed to an applicant may have actually been addressed to the authorised recipient. 15 The primary judge considered that, in the circumstances of the present case, there was no evidence to demonstrate exactly how the envelope enclosing the copy of the letter to the authorised recipient was addressed. Nevertheless, his Honour accepted that the letter had been sent to both the Visa Applicant and to Mr Deng. His Honour found that the letter notifying the Visa Applicant of the delegate's decision was addressed to the Visa Applicant and 'carbon copied' to Mr Deng. His Honour found that, although the notification of the delegate's decision appeared actually to have been sent to the Visa Applicant and to his authorised recipient, that was not done in a fashion that satisfied the requirements of the Act. His Honour concluded that the procedure required by the Act, of proper notification to the authorised recipient, was not followed.

THE APPEAL 16 The effect of ss 66, 494B and 494D and r 2.16(3) is that the Visa Applicant did not receive notification of the delegate's decision unless and until a document with the content specified in s 66(2) was given to Mr Deng by one of the methods specified in s 494B of the Act. The Minister relies only on s 494B(4) in the present case. 17 The grounds stated in the Minister's amended notice of appeal are that the Federal Magistrates Court erred: · in concluding that the sending of the Notification Documents under s 66 of the Act to the Visa Applicant's authorised recipient was not done in a fashion that satisfied the requirements of the Act; · in finding that the Tribunal had erred in concluding that it did not have jurisdiction to undertake a review pursuant to the application lodged on 20 March 2007; · in failing to find that the delegate had given a document that fulfilled the requirements of s 66 of the Act to the Visa Applicant's authorised recipient in accordance with the requirements of the Act. 18 In order to dispatch a document by prepaid post, as contemplated by s 494B(4), it is a practical requirement that there be an envelope addressed to some person. However, that requirement says nothing about the content or form of the document that is being despatched. Section 66(2) is the only provision that specifies the content or form of a document that is to constitute notification under s 66(1). 19 Section 494B(4) is not prescriptive of the precise form of the address on the envelope. So long as a document is dispatched by prepaid post to, for example, the last business address provided to the Minister by the recipient for the purposes of receiving documents, the requirement will be satisfied. The fact that the delegate's letter of 2 March 2004 was, in its terms, addressed to the Visa Applicant, at his residential address, which had been provided to the Minister in the form 956, is irrelevant to the question of whether s 494B(4) has been satisfied. 20 The Notification Documents satisfied the requirements of s 66(2). That provision says nothing about the names or addresses of any person that must be included in the notification. The Minister concedes, however, that it would be necessary for the notification to indicate the visa application to which it applied and thus, at least implicitly, should disclose the name of the visa applicant. 21 The letter sent to the Visa Applicant and to Mr Deng contained, at its foot, the name of Mr Deng and his address. An inference is clearly open, and should be drawn, that the version of the Notification Documents sent to Mr Deng was sent in an envelope addressed in the manner stated at the foot of the letter. There was no evidence that any other form of address was used. Having accepted that a version of the Notification Documents was sent to Mr Deng, a finding should be made, on the balance of probabilities, that it was sent in an envelope addressed in the manner specified at the foot of the letter. The Notification Documents were therefore sent to Mr Deng, the Visa Applicant's authorised recipient, at the last business address of Mr Deng provided to the Minister. The Notification Documents were dispatched by prepaid post to the last business address provided to the Minister by the Visa Applicant for the purposes of receiving documents. That is to say, they were dispatched to Mr Deng at his business address specified in the form 956. 22 Section 494B(4) specifies a method for giving a document to a person, namely, by dispatching it to a particular address. The address for dispatch is that contained on the prepaid envelope. So long as the document is posted to the authorised recipient at the authorised recipient's address, s 494B(4) is satisfied, whatever address might be contained in the document enclosed in the envelope. There is no basis for importing a requirement that documents given for the purposes of s 66 must contain a particular address. The language of s 494B and the language of s 494D both support the Minister's contention that there is no reason why a particular address must be included in notification documents given in order to satisfy s 66 of the Act. The language of those provisions also supports the conclusion that it is irrelevant that an address other than the address of an applicant's authorised recipient is included in notification documents. 23 Thus, s 494B provides for methods by which the Minister gives a document to a person. Under s 494B(2), one method is by handing the document to the recipient. Under s 494B(3), another method consists of the Minister handing the document to another person within the categories specified in that section. Other methods are by dating the document and dispatching it as provided in s 494B(4) or by transmitting the document by electronic means as provided in s494B(5). There is nothing in those provisions to suggest that the manner in which the document itself is addressed has any bearing on whether the document has been given. 24 Section 494D then provides for the notification of an authorised recipient to receive documents in connection with matters arising under the Act, where the Minister must give the authorised recipient any documents that the Minister would otherwise have given the person who would have received it by a method specified in s 494B. That is, s 494D is referring to the same document, addressed to the first person, which can be given instead to the authorised recipient. The reference in the note to s 494D(1) to the service of the document by a method specified in s 494B reinforces the common identity of the document served on the first person and on the authorised recipient. 25 Section 494D(1) clearly contemplates that a document addressed to an applicant for a visa, which would otherwise have been given to that person, must be given to the authorised recipient. That provision tends to indicate that a letter such as the delegate's letter in the present case ought to be addressed to a visa applicant rather than to the authorised recipient. The scheme of the legislation is that the authorised recipient is to be given the document that would otherwise have been given to the Visa Applicant. It is inconsistent with that notion that the document should itself be addressed to the authorised recipient rather than the applicant for a visa. 26 The primary judge based his reasoning on two decisions of this Court, VEAN of 2002 v the Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570 and SZFOH v Minister for Immigration and Citizenship [2007] FCAFC 63. In the first case, notification documents were sent to an authorised recipient in an envelope addressed to a visa applicant care of that visa applicant's authorised recipient. To that extent, it is distinguishable from the present case. In so far as the decision suggests either that notification documents must contain within them the address of the authorised recipient or may not contain the address of an applicant for a visa, the decision should not be followed. In so far as the second case construed the first case in that way, that construction was erroneous.

CONCLUSION 27 The Federal Magistrates Court erred in not concluding that the requirements of s 494B(4) had been satisfied. It follows that the application to the Tribunal was out of time and the Tribunal was correct in concluding that it had no jurisdiction to undertake a review of the delegate's decision. Accordingly, the appeal should be upheld. The orders made by the Federal Magistrates Court should be set aside. In lieu of those orders there should be an order that the application to the Federal Magistrates Court be dismissed. The Minister does not ask for the costs of the appeal or the costs of the proceeding in the Federal Magistrates Court. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate: Dated: 6 March 2008 Counsel for the Appellant: Mr S. Gageler SC, Mr Lloyd

First Respondent: The First Respondent appeared in person.

Migration Act 1958(Cth)ss 66, 411, 412, 414, 494B, 494D

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