The appellants' arguments
40 As to the first of the appellants' arguments, one may say at the outset that, generally speaking, there is no reason to suppose that the singular reference to "the last business address" in s 494 B(4)(c)(ii) of the Act does not include the plural, "the last business addresses". That interpretation would be in conformity with s 23(b) of the Acts Interpretation Act 1901 (Cth). We doubt whether a contrary intention can be discerned from the language of the Act: it is perfectly possible, as a matter of language, logic and business, for a person to have several addresses, including several business addresses, at any one time. 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.
41 In the course of oral argument, ably presented by Mr Gilbert of Counsel for the appellants, emphasis was placed on the references in s 494B(4)(c)(ii) to the words "for the purposes of receiving documents". It was argued that in the documents whereby Mr Young gave notice to the Department of his appointments as the appellants' migration agent, Mr Young's street address was expressly and exclusively specified as his "postal address". Accordingly, only the address so specified, that is, his street address, could be said to be Mr Young's "last…business address provided to the Minister…for the purposes of receiving documents".
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.
43 In our respectful opinion, Mr Bickford's argument must be accepted and the appellants' first argument must be rejected. It is common ground that Mr Young was authorised to receive documents on behalf of the appellants in conformity with s 494D(1) of the Act. It is also common ground that the 5 March 2009 notifications were given to Mr Young on 16 March 2009. Time began to run on that day for the appellants to make their review applications for the Tribunal and expired on 25 March 2009.
44 As to the second argument, the question of whether a defective notice might be cured under s 494C(7) arises in this case only if the notifications of 5 March were in fact defective. Because we have concluded that the notification given by the letters of 5 March 2009 was not defective, there is no reason to seek to come to a firm view of the scope of s 494C(7).
45 As to the appellants' third argument, there are two assumptions on which this argument depends. Neither is correct. First, there is the assumption that there can be an estoppel against the Tribunal which precludes it from declining jurisdiction. In our view, the Tribunal did not conduct itself in any way which might estop it from declining to entertain an application received out of time. It was suggested that the Tribunal might be estopped by reason of the terms of one of the Tribunal's brochures which was included with the notification. The brochure stated relevantly:
Time limits for making your application
There are strict time limits for lodging your application form and paying the application fee (or lodging an application for fee waiver).
The Tribunal cannot extend time limits or accept applications made outside a time limit. You should therefore lodge your application without delay.
The decision letter sent by the Department should state the time limit that applies to you. You may also refer to Table 2 at the end of this factsheet for a general guide.
If you are in any doubt as to the time limit that applies to you, please contact the Tribunal.
46 It is difficult to read the statement that "the decision letter sent by the Department should state the time limit that applies to you" (emphasis added) as a representation that the Tribunal is willing and able to accept an application out of time so long as it is made consistently within the terms of the Department's decision letter. However this may lie, the absence of evidence that Mr Young or the appellants relied upon the statement in the brochure, which accompanied the 16 March notification, to refrain from making their review applications until 26 March 2009 is fatal to the estoppel argument based on the Tribunal's brochure.
47 The second assumption underlying the third argument put on behalf of the appellants is that the officers of the Department (or the Tribunal) might be taken by Mr Young to have power to alter the timeframe for objection laid down by the legislature. That assumption is contrary to the fundamental principle of the separation of powers: that officers of the executive government have no power to alter the state of affairs ordained by the legislature. It is this principle that underlies the proposition that there can be no estoppel against a statute: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 17; Minister for Immigration & Ethnic Affairs v Polat (1995) 57 FCR 98 at 105. A contrary proposition was once countenanced by F T Brennan J in Egan v Commissioner of Taxes (Qld) (1934) 3 ATD 53 at 55. In a passage which was clearly obiter, his Honour countenanced the possibility that an appeal against the disallowance of an income tax deduction might be allowed on the basis of an estoppel, notwithstanding that the claim did not fall within the terms of statute, in circumstances where the taxpayer had continued to incur the expenditure on the strength of the Commissioner's mistaken allowance of earlier claims for such a deduction. While such reasoning arguably anticipated an approach taken by Denning J (as His Lordship then was) in Robertson v Minister of Pensions [1949] 1 KB 227 at 232, it is contrary to the Australian authorities mentioned. Further, that approach was expressly and unanimously disapproved by the House of Lords shortly thereafter: Howell v Falmouth Boat Construction Co Ltd [1951] AC 837 at 845, 848, 849, 850. Subsequent developments in England whereby substantive relief is afforded to those in whom a "legitimate expectation" has been engendered by the action of a public official, q.v. R v North and East Devon Health Authority; Ex parte Coughlan [2001] QB 213 have not found favour in Australia: Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1 at [65]-[69] and [48]. To countenance the creation of a substantive right, contrary to express statutory provision, on the basis of a representation made by an officer of the Executive would be a considerable retrograde step in terms of principle and all the more so in under a constitution which expressly provides for a separation of powers. It must be recalled that Article 1 of the Bill of Rights 1688 (Eng) provides, "That the pretended power of suspending of laws or the execution of laws by regal authority without consent of Parliament is illegal".
48 In this regard, those who seek the benefits of the Act and officers of the executive government are equally bound by the provisions of the Act. Neither the officers of the Department nor the Tribunal have any legal authority to vary the prescriptions of the Act and Regulations. They could not, by express agreement with the appellants, alter the timetable applicable under the Act and Regulations: a fortiori, their conduct could not give rise to an estoppel having the same effect.
49 To the extent that the rejection of the appellants' third argument might be thought to be harsh or unjust, it must be appreciated that the appellants had the benefit of advice from Mr Young, who decided to take a point, which was either right or wrong. A concession by the Department could not make Mr Young's point right if it was wrong. Next, it is necessary to understand that the rights enjoyed by the appellants as visa holders were created by the Act, and the Act determined the extent of those rights and the conditions on which they might continue to be enjoyed. Parliament has made it quite clear that the rights of review conferred on the appellants were to be exercised within a short time frame. This time frame may not be extended by officers of the executive government, the Tribunal or the courts. It is a matter for the legislature to fix the time limits for the exercise of the rights conferred by the Act; neither officers of the executive government, nor the Tribunal, nor the courts, have authority to set aside or vary the provisions made by Parliament. That having been said, it should also be noted that in this case there does not appear to have been any reason why the appellants could not have made their application for review to the Tribunal within the time fixed by the notification of 5 March.
50 The appellants' fourth argument must also be rejected. The appellants were entitled to apply to the Tribunal for review; they were late in doing so because of Mr Young's failure to appreciate that the notifications of 5 March 2009 were valid. An error on Mr Young's part as to the efficacy of the notifications of 5 March does not mean that the appellants' entitlement to apply for review was frustrated or negated: it simply means that by reason of an error on the part of their agent, the appellants' rights were not exercised in accordance with the requirements of the law.
51 The appellants' reliance upon the decision of Merkel J in Chun Wang is misplaced. In Chun Wang, the applicant, a Chinese student, applied for a review of a decision by the Immigration Review Tribunal (the IRT) which affirmed the Minister's decision to refuse a class 816 visa. On 21 December 1995, the IRT posted a statement of the decision to the applicant's address. The addressee's name on the envelope was not the name of the applicant. It was however, received at the applicant's address. The applicant did not open the envelope. On the 5 February 1996, an IRT officer provided the applicant with a copy of the decision and told him that the decision could no longer be appealed as 28 days had already passed since it had initially been made. The applicant therefore believed he had lost his right to appeal the IRT decision; the applicant therefore lodged an application for review in the Federal Court but subsequently, on 5 May 1996, the Minister contended that under s 478 of the Act the Court had no jurisdiction to review the decision because the application was lodged more than 28 days after notification on 5 February 1996. In addressing the issue whether the notification on 5 February 1996 constituted a notification for the purposes of s 478, Merkel J held that for the purposes of s 478(1) of the Act, notification occurred when the substance, or outcome, of the decision was actually communicated to the person adversely affected. Merkel J said at 720 that:
…it would be an extraordinary result under the Act if a person's right to review a decision, that can affect that person's life and well-being, can expire before the person becomes aware of the decision.
52 Merkel J considered that the primary purpose of notification by the IRT under s 478 was to enable the person notified to consider the decision and to apply for review within 28 days of notification. Merkel J considered that s 478 was to be construed purposively, so that a notification which includes, or is accompanied by, incorrect information about review rights and which substantially frustrates or negates that purpose is not a notification within s 478 of the Act. Merkel J said at 726:
The application of these principles and authorities in the present case results in it being legitimate and necessary to imply a condition in respect of a notification by the IRT, for the purposes of s478. The notification must not be carried out in a manner which frustrates or negates the entitlement of the person notified to lodge an application for review of the decision within 28 days of the notification. Another way of putting the implication is that, as the sole or primary statutory function of a notification for the purposes of s478 is the commencement of the 28 day period for review, it is an implied condition of the valid exercise of the power of notification that it not be exercised in a manner which frustrates or negates that function.
53 Merkel J concluded that the inadequate notification of 21 December 1995 and the erroneous advice of 5 February 1996 had the effect of frustrating or negating the applicant's entitlement to review. Accordingly, time only commenced to run under s 478 on 10 April 1996, when the applicant became aware that the advice that he had no right of review or appeal was not correct. Merkel J explained at 727:
At that time the "notification" of 5 February 1996 became unburdened by the incorrect advice and thereby became a "notification" for the purposes of s 478. Accordingly, the application was lodged within time and the court has jurisdiction to review the decision of the IRT.
54 The decision in Chun Wang is readily distinguishable on the facts. In the present case, no question of non-receipt of the notification arises. Mr Young actually received the notifications in due time and the only reason the appellants' rights were not exercised was because of the imperfect understanding of the law by the appellants' own agent.