Minister for Immigration & Border Protection v Kim

REASONS FOR JUDGMENT BUCHANAN J: 1 The first respondent to this appeal is an overseas student who is a national of the Republic of South Korea. On 22 November 2011 she lodged an application for a student visa. She nominated, as her intended course, a Bachelor of Business Administration course at Macquarie University commencing on 20 February 2012 and finishing on 31 December 2013. Documents lodged with the application for a student visa indicated that the first respondent was enrolled in that course and also enrolled in a Diploma of Business Administration course provided by the Sydney Institute of Business and Technology between 21 February 2011 and 8 February 2012. 2 The visa for which the first respondent had applied was a student visa (class TU), subclass 573. Regulation 573.225 of the Migration Regulations 1994 (Cth) ("the Regulations") made under the Migration Act 1958 (Cth) ("the Migration Act") required the following: 573.22 Criteria to be satisfied at time of decision … 573.225 The applicant gives to the Minister evidence of adequate arrangements in Australia for health insurance during the period of the applicant's intended stay in Australia. 3 As part of her application the first respondent declared that she had made adequate arrangements for health insurance for the period of her stay in Australia. 4 In an email dated 30 November 2011 from the Minister's Department, the first respondent was advised she had been granted a bridging visa and was asked to provide specified information within 28 days. Amongst the information sought was: " Evidence you have paid for Overseas Student Health Cover (OSHC) for yourself and all family members in Australia for the proposed duration of your Student Visa. You need to show you have cover till 15/03/2014. 5 By letter dated 2 February 2012 a delegate of the Minister informed the first respondent that her application for a student visa had been refused because: The applicant failed to provide the evidence of adequate Overseas Health Cover. 6 The first respondent applied to the Migration Review Tribunal ("the MRT") to review the decision of the Minister's delegate. The application for review was dated 21 June 2012. In the application for review the first respondent disclosed that the date of the decision which she challenged was 2 February 2012 and that she had received a copy of the letter "by fax or email" on 15 June 2012. In fact, she received it by email. 7 On 27 August 2012 an officer of the MRT wrote to the first respondent advising her of the officer's view that her application to the MRT was not valid because it was not lodged within 21 days "from the day on which you are taken to have been notified of the primary decision". The officer of the MRT acted on information from the Department that the letter to the first respondent dated 2 February 2012 was sent to her by registered post at the residential address nominated by her in her application for a student visa, an address in Rhodes, New South Wales, a Sydney suburb. 8 In response, in a statement dated 11 September 2012, the first respondent indicated that she had moved her residential address after she had lodged her application. The first respondent appears to have given notice to her landlord at about that time that she would vacate the Rhodes property on 17 December 2011. She pointed out to the MRT that in her application she had agreed to the Department communicating with her by fax, email or other electronic means and had supplied an email address. This was the same email address to which the initial letter of 30 November 2011 was sent. The first respondent asserted that she had provided all the information required of her, including evidence of overseas student health cover. She explained that she had completed her schooling in Australia (having arrived on 4 July 2006) and had been progressing her studies at Macquarie University when, in the course of buying a flight ticket to Korea for the winter holidays, she discovered that she did not, in fact, have a student visa. It was then that she first learned of the refusal of her visa. 9 It appears that the first respondent had in fact arranged overseas student health cover through Medibank and was advised of the details by Medibank by letter dated 6 January 2012. 10 On about 16 October 2012 the MRT determined that it did not have jurisdiction to deal with the application for review to it. The written reasons for that decision recorded that the letter dated 2 February 2012 was returned to the Department unclaimed on 29 March 2012. The MRT decided that the choice of the method by which the Department might communicate to the first respondent the decision to refuse her student visa was for it to determine. As the first respondent had provided the address at Rhodes as an address for correspondence and had not notified the Department that it had changed, the letter of 2 February 2012 was regarded by the MRT as effective notification of the decision by the delegate to the first respondent. The application for review having been lodged outside the prescribed period of 21 days, the MRT determined that it had no jurisdiction to entertain it. 11 The first respondent applied to the (then) Federal Magistrates Court of Australia ("the FMCA") for judicial review of the decision of the MRT. That Court is now the Federal Circuit Court of Australia ("the FCCA"). 12 On 11 September 2013 the FCCA upheld the first respondent's application for judicial review and remitted the matter to the MRT for decision. The basis of the conclusion of the FCCA that the MRT had committed jurisdictional error was that in her application for a student visa, the first respondent had also given an address in Seoul, South Korea as her residential address in her country of usual residence. The FCCA concluded that an entry in the application indicating that the first respondent's address for correspondence was "As above" was equally applicable to the address in Seoul as it was to the address in Rhodes which had been given as the Australian address and required that if a communication was to be made with the first respondent by mail it was necessary to send it to Seoul as well as to Rhodes, which had not been done. Time had therefore not commenced to run in February 2012 and had not expired when the first respondent became aware of the delegate's decision on 15 June 2012, after her telephone enquiry about her student visa. 13 The Minister has appealed against the judgment of the FCCA. The orders sought on appeal are that the application to that Court be dismissed and that the first respondent pay the costs of proceedings in that Court and in this Court. 14 This case has some unsettling features. It appears that, in fact, the first respondent had satisfied the requirements for the grant of a student visa in January 2012. Her belief was that she had transmitted the relevant documents to the Department. There is no evidence before the Court whether or not that is the case. 15 If, in fact, the first respondent satisfied all the requirements for a student visa, save for inadvertently failing to provide the physical evidence of the overseas student health cover which she had obtained from Medibank at a premium of $1073.06, it is difficult to see why some appropriate administrative procedure could not have been found to overcome any administrative or technical difficulty which stood in her way. The first respondent had completed her secondary education in Australia. She had enrolled in consequential courses of study at a tertiary level in Australia. It appears that she was engaged in pursuing those studies when the events at the heart of the present appeal came to light. It is hard to understand why any clerical shortcoming could not be addressed and corrected without the need for legal proceedings. 16 Nevertheless, the Minister's appeal is now before this Court. I do not regard it as open to me to decline to exercise the Court's jurisdiction to deal with the appeal. Accordingly, the appeal must be decided and must be decided according to law. 17 I do not, with respect, agree with the FCCA that the provision of a residential address in Seoul provided an indication that such address was a relevant address for correspondence in relation to the visa application, which was made in Australia. 18 Assuming the first respondent had nominated her residential address as the method for communications (a question which I address below), the Minister would be obliged by s 494B(4)(c) of the Migration Act to send documents to the last residential address nominated. That would clearly be the address in Australia where the first respondent was living when she made her visa application, not that in South Korea (see also Maroun v Minister for Immigration and Citizenship [2009] FCA 1284, (2009) 112 ALD 424 at [32] and [36]). 19 However, at the hearing of the appeal another issue arose which might, on one view, have led to the same conclusion as reached by the FCCA, although for different reasons. It concerned the understanding of the first respondent that communications with her would be by email. The parties were given an opportunity to make further written submissions about that issue and both did so. 20 In order to deal with this issue it is necessary to explore in a little more detail the mechanism for effective communication contemplated by the Migration Act and the Regulations. 21 Section 66 of the Migration Act required that the first respondent be notified of the refusal of her visa "in the prescribed way". 22 At the date of refusal of the first respondent's visa application, reg 2.16(3) of the Regulations provided: 2.16 Notification of decision on visa application … Refusal to grant visa (3) The Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act. Note If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method. 23 Section 494B states the methods by which the Minister might give documents to a person. It is not necessary here to give detailed attention to the possibility of delivery by hand, but the existence of that method must also be borne in mind in the discussion which follows. Section 494B(4) and (5) provide: 494B Methods by which Minister gives documents to a person … 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. 24 In her application for a student visa, the first respondent answered questions 14-20 as follows: 25 The first respondent answered question 74 as follows: 26 Confusingly, none of the questions refer to "documents". Question 19 refers to "correspondence", question 20 to "communicating" and question 74 to "written communications" at the "address for communications". 27 The first respondent's belief that written communications would be sent to her by the means she had authorised for communicating with her, and to the email address for such communications which she had provided, may have seemed to her to be confirmed by the fact that the document dated 30 November 2011 advising her that she had been granted a bridging visa was sent to her by email. That document did not contain any endorsement with a residential address. 28 The question which is central to the resolution of the present appeal is whether the Minister retained an effective discretion to choose any of the methods prescribed by s 494B (including delivery by hand) to communicate a visa refusal to the first respondent. I have concluded that I am bound to decide that the Minister did retain that discretion, notwithstanding the matters to which I have referred and notwithstanding any belief the first respondent may have had to the contrary. 29 In Singh v Minister for Immigration and Citizenship (2011) 190 FCR 552 ("Singh"), the authorised representative of a visa applicant identified both a post office box and a street address as business addresses on his letterhead but nominated his street address as his "postal address". Notice of cancellation of the visa was sent to the representative's post office box. The notice was in fact received by him within the time for review but he asked that the notice be sent again and it was, by email. The MRT declined to hear the review. It held that the Minister's initial notice was valid and effective. The FMCA decided that the Minister might elect to use any of the methods prescribed by s 494B, and also that there might be more than one "last" business address, either of which could be selected by the Minister. 30 It is not necessary to dwell on this last aspect of the reasoning, although it was not criticised in the Full Court in Singh which said (at [40]): 40 … A person who invites the sending of correspondence to any one of a number of addresses can sensibly be taken to have assumed responsibility for checking his or her mail. 31 An argument in Singh to the effect that nomination of the street address was not conclusive was dealt with as follows (at [42]): 42 There might have been force in this argument if it were the case that s 494B provided an exhaustive list of the methods by which notifications of cancellation may be given. But as Mr Bickford of counsel for the Minister rightly pointed out, s 494A of the Act makes it clear that, in cases of visa cancellation, s 494B is not an exhaustive statement of the methods by which notification of cancellation of a visa may be given by the Minister. Mr Bickford pointed out that, whatever means had been used to notify Mr Young of the cancellation of the appellants' visas, he in fact received that notification on 16 March 2009. And as a result, by virtue of s 494D(2), the appellants received the notification of the cancellation of their visas on that date. 32 Two comments should be made about this passage. First, in the present case there was no question of actual receipt. Secondly, whatever may have been the position in Singh at the relevant time, the position here is clear. The Minister was obliged to use s 494B. The position was not at large, s 494A did not apply. 33 In the present case the first respondent did nominate an "address for correspondence" in her answer to question 19, as well as authorising communication by email in her answer to question 20. As I have said, I do not agree that the answer "As above" should be taken to refer to any address in Seoul. In the context of the visa application, and for the purpose of s 494B(4)(c)(i) and (ii), the last residential address nominated by the answers to both questions 17 and 19 was the address at Rhodes. 34 The issue in the present case, therefore, becomes whether the Minister was bound not to send a letter to the Rhodes address and was bound to communicate with the first respondent only by email, and not in some other fashion. 35 The first difficulty an argument to that effect encounters is that it would mean the Minister could not elect to deliver a communication into the hand of the first respondent, notwithstanding the presumption in s 494B that a document may be given in that way and that, clearly, actual receipt would be accomplished. In my view, delivery by hand was not excluded. If the Minister retained that discretion it is hard to see why the discretion to use another method applicable to the first respondent could not be used also. 36 The visa application which the first respondent lodged on 22 November 2011 was, for the purposes of certain provisions of the Migration Act, an "application form" (see s 97). The questions she answered about her residential address in Australia were "questions" within the meaning of s 101 of the Migration Act, which provides: 101 Visa applications to be correct A non-citizen must fill in or complete his or her application form in such a way that: (a) all questions on it are answered; and (b) no incorrect answers are given or provided. 37 Under s 104 of the Migration Act the first respondent was obliged to notify any change of residential address "as soon as practicable". She did not do so. 38 Sections 104(1) and 106(b) provide: 104 Changes in circumstances to be notified (1) If circumstances change so that an answer to a question on a non-citizen's application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them. … 106 Obligations to give etc. information is not affected by other sources of information The requirement for a non-citizen to comply with sections 101, 102, 103, 104 and 105, is not removed or otherwise affected by the fact that the Minister or an officer had, or had access to: … (b) any other information. 39 The visa application form also required a signed declaration acknowledging specific matters. One was: • I am aware that I must immediately advise the department if I become aware that any information provided in this form is incorrect or if there is a change in my circumstances that are relevant to this application at any time. 40 No argument is available that the first respondent was relieved of the responsibility of keeping her residential address up to date because she was happy to receive communications by email. The Minister was entitled, therefore, to regard the Rhodes address as her current residential address. Although the operation of s 494B and s 494C (which deals with when documents are taken to be received) does not depend on it, the Minister was also entitled to assume that the first respondent would check her mail at that address. 41 A similar question to the present was addressed by Gilmour J in Haque v Minister for Immigration and Citizenship [2010] FCA 346, (2010) 114 ALD 547. There was one factual difference: the form in that case indicated (after the equivalent of question 20, authorising communication by email) - "Note: If this visa application is refused you will be notified by mail". 42 Apart from that difference, Gilmour J's remarks (at [64]) are directly on point: 64 The appellant's consent to the receipt of communications by email did not oblige the first respondent to communicate with him by that means. An email address does not constitute an "address" for the purposes of s 494B(4)(c)(i) of the Act. It is but one of the several methods by which the first respondent may give a document to a person and is expressly provided for in this respect under s 494B(5) of the Act. It was open to the first respondent to use any one of the methods provided for under s 494B, even to have done so by email despite the content of the note to which I have referred. Whilst an email address was provided by the appellant to receive correspondence, there is no requirement for the Tribunal to send communication electronically: see Maroun v Minister for Immigration [2009] FMCA 535; Milon v Minister for Immigration [2009] FMCA 85. 43 Considerations of comity require me to construe the operation of s 494B in the same way. Furthermore, I have come to the view, with respect, that the construction favoured by Gilmour J is the correct one. 44 In written submissions for the first respondent addressing the question of whether the Minister was obliged to communicate only with the first respondent by email, an argument was advanced to the effect that the Minister was "estopped" from using another method of giving documents to the first respondent. 45 In the findings stated earlier I concluded that the first respondent had supplied both a residential address (also available for correspondence) and an email address for communications. I also concluded that the Minister retained a discretion concerning what method might be used to give the first respondent the letter dated 2 February 2012, refusing her visa application. The factual elements for estoppel by conduct were not established. It is not necessary to examine in the present case whether the argument is legally available against the Executive Government. 46 The Minister was entitled to send the letter dated 2 February 2012 to the last residential address provided by the first respondent. That was the address in Rhodes. Sending the letter to that address was effective. There was no requirement to send the letter as well to the address in Seoul, or by email. 47 The appeal must therefore be upheld. The orders of the FCCA will be set aside and the application to that court will be dismissed. I see no principled basis why the ordinary rule as to costs should not apply. The first respondent must therefore pay the Minister's costs before the FCCA, and before this Court, as taxed if not agreed. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.