Jessup J
46 This an appeal from a judgment of the Federal Magistrates Court of Australia given on 31 August 2011, in which an application for judicial review of a decision of the second respondent, the Migration Review Tribunal, made on 15 June 2010 was dismissed. By its decision, the Tribunal had affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Citizenship, to cancel the appellant's Subclass 426 (Domestic Worker (Temporary) - Diplomatic or Consular) Visa under the Migration Act 1958 (Cth) ("the Act"). The only point which arises upon appeal is whether the Federal Magistrate was in error to reject the appellant's case that he was properly given notice of the day on which, and the time and place at which, he was scheduled to appear before the Tribunal, as required by s 360A(1) of the Act.
47 Having received an unfavourable decision from the delegate, on 20 November 2009 the appellant took steps which were intended to exercise his right to apply for a review by the Tribunal. He consulted Ms Lynette Payne, a Legal Aid solicitor, and instructed her to file his application for review. Acting on those instructions, Ms Payne completed a pro-forma made available by the Tribunal headed "Application for Review to the Migration Review Tribunal (for applicants in immigration detention)". That form was identified as "M2", and contained the following sections:
Section A - Details of person(s) applying for review - Review applicant(s).
Section B - Appointment of representative.
Section C - Where do you want us to send correspondence about your application?
Section D - Decision to be reviewed.
Section E - Request to appear before the Tribunal.
Section F - Review applicant declaration.
The form was completed uncontroversially, and contained all of the information that would have been required for a valid application for review. As indicated above, however, the form was intended for use by an applicant who was in immigration detention. The appellant was not in detention. I shall return to that complication below.
48 Section C of the M2 form is of some significance for present purposes. It occupied a full page on the form. It opened as follows:
You may choose to have all correspondence sent to yourself or you may nominate a person known as an authorised recipient to receive correspondence on your behalf in connection with the review.
If you nominate an authorised recipient, the Tribunal will send all correspondence to your authorised recipient. The Tribunal only sends copies of correspondence to applicants who have nominated an authorised recipient where the applicant is in immigration detention.
If you do not nominate an authorised recipient, all correspondence on your case will be sent to you.
Beneath that advice, section C proceeded as follows:
Please send all correspondence in connection with this review: (tick one box only)
to my representative whom I nominate as my authorised recipient
(If you tick this box, all correspondence will be sent to your representative as given in Section B and copies will be sent to you at the detention centre).
OR
to another person whom I nominate as my authorised recipient
(If you tick this box, all correspondence will be sent to the person whose details you provide below and copies will be sent to you at the detention centre).
….
OR
to me at the detention centre
(If you tick this box, all correspondence will be sent only to you at the detention centre).
Under the second of these alternatives in section C, there was provision for an appellant who had ticked the second box to set out the name, address and other details of the person nominated as his or her authorised recipient.
49 In the form as completed by Ms Payne and the appellant on 20 November 2009, the first of these boxes was ticked. That is to say, the appellant indicated that all the correspondence should be sent to his "representative". In section B of the form, Ms Payne had clearly identified herself as the appellant's nominated representative.
50 Ms Payne wrote a letter to the Tribunal, operating both as a covering letter for the appellant's application for review and as a request for the application fee to be waived, given the appellant's financial circumstances, which were explained in some detail. Ms Payne gave that letter, and the completed M2 form, to the appellant. He took them to the office of the Tribunal, and lodged them. What happened next was not the subject of any satisfactory evidence before the Federal Magistrate. The appellant's evidence, to which I shall refer presently, was rejected by her Honour. Ms Payne was not herself involved in the events which became controversial. The most reliable primary evidence consisted of some documents which were on the file of the Tribunal, and it is from those documents that the Federal Magistrate drew various inferences.
51 Those documents included the M2 form which had been lodged by the appellant, but subject to alteration by a person whose identity was not disclosed, and as to whom the Federal Magistrate drew no inference. The form had been stamped with the date stamp (20 November 2009) of the Tribunal, had been endorsed (by hand) "Incorrect Form", and had had Section B removed.
52 The documents included also a Tribunal pro forma which was headed "Application for Review to the Migration Review Tribunal (for applicants not in immigration detention)". That form was identified as "M1", and contained the following sections:
Section A Details of person(s) applying for review - review applicant(s).
Section B Details of the corporate body applying for review.
Section C Your capacity to apply for review.
Section D Details of visa applicant(s).
Section E Appointment of representative.
Section F Where do you want us to send correspondence about your application?
Section G Decision to be reviewed.
Section H Review applicant declaration.
Save to the extent indicated below, this form too was completed uncontroversially in the name of the appellant. It was signed in the appropriate place by him, and it was common ground, both before the Federal Magistrate and on appeal, that this was done on 20 November 2009, ie on the same day as that upon which he attended at the Tribunal in order to lodge the M2 form. However, the form had not been completed by Ms Payne, and she was able to give no useful evidence about the circumstances of its completion.
53 As it appeared in evidence, Section E of the M1 form had been completed with the same details as Ms Payne had inserted in Section B of the M2 form. However, Section E was not signed by Ms Payne (as it could not have been, since she had no part in the preparation of the M1 form). Clipped in some way to the back of the page of the form which set out Section E was Section B of the M2 form (which, it will be recalled, had been removed from that form). The letter "E" had been written, by hand, over the letter "B" at the head of this page.
54 Section F of the M1 form corresponded to Section C of the M2 form. However, in this case, no part of Section C of the original M2 form had been attached to, or reproduced in, the M1 Form. On a printed pro forma, the opening passages of Section F in the M1 form were the same as those in the corresponding part of the M2 form, as set out in para 48 above. However, the remaining parts of Section F differed slightly, and were as follows:
Please send all correspondence in connection with this review: (tick one box only)
to my representative whom I nominate as my authorised recipient
(If you tick this box, all correspondence will be sent to your representative as given in Section E).
OR
to another person whom I nominate as my authorised recipient
(If you tick this box, all correspondence will be sent only to the person whose details you provide below).
….
to me at my address
(If you tick this box, all correspondence will be sent only to the address you provide below).
….
In the M1 form as it appeared in the evidence before the Federal Magistrate, the second box - marked "to another person whom I nominate as my authorised recipient" - had been ticked. However, the boxes in the printed form below that line, in which the person completing the form would state the name and address of the person to whom all correspondence would subsequently be sent, had been left blank. The only mark on Section F of the M1 form was in the second box as described above. The position was, therefore, that the person completing this form, and the appellant by signing it, had not nominated his representative (Ms Payne) as his authorised recipient, but had purported to nominate another person, the identity and relevant details of whom were not given.
55 The appellant gave evidence before the Federal Magistrate that the M1 form was lodged because, a "month or two" after he lodged the M2 form, a friend pointed out to him that it was not the correct form, and he (the appellant) acted to correct this mistake. The Magistrate rejected that evidence, holding that the M1 form had been lodged on the same day as the M2 form. That holding was not challenged on appeal, but the appellant's evidence as given presumably rendered moot any cross-examination of him as to what actually happened on 20 November 2009 when, as her Honour found, he lodged the M1 form.
56 It was common ground before the Federal Magistrate, and it is common ground on appeal, that the M1 form signed by the appellant on 20 November 2009 was a valid application for review of the decision of the delegate. What was and is problematic, however, is whether the Tribunal complied with the requirements of the Act as to the means by which notification was, in the circumstances, required to be given to the appellant of the hearing which it conducted. The Tribunal sent written notification of the hearing to Ms Payne, and she received it in the normal course. As found by the Federal Magistrate, Ms Payne sent a copy of the Tribunal's notification to the appellant at his residential address known to her. Some weeks later (but before the date fixed by the Tribunal for its hearing) it seems that Ms Payne spoke to the appellant by telephone. He told her that he had not received her letter. It was common ground that, save by means of that letter (and possibly also by means of something said by Ms Payne to the appellant on the telephone, as to which the Magistrate made no finding), the appellant had not received any notification of the hearing before the Tribunal.
57 The appellant's case was that, in the circumstances outlined above, he had not been properly notified of the Tribunal hearing, and that the decision of the Tribunal, which was adverse to him and made in his absence, amounted to a breach of the rules of natural justice, and was not otherwise authorised by the Act. In order to understand the strength of this case, it is necessary to turn to the relevant provisions of the Act.
58 Division 5 of Part V of the Act sets out the statutory requirements for reviews conducted by the Tribunal. By s 360A(1), the Tribunal was obliged to invite the appellant to appear before it, to give evidence and to present arguments relating to the issues arising in relation to the decision under review. Subsections (1) and (2) of s 360A are as follows:
(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a) except where paragraph (b) applies - by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person.
Since the appellant was not in immigration detention, it was para (a) of subs (2) which applied in his case. That takes one to s 379A, which sets out the methods by which the Tribunal is to give documents to persons other than the Secretary of the relevant department. The only provision which is presently relevant is subs (4), which provides as follows:
(4) Another method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, 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 Tribunal by the recipient in connection with the review; or
(ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review; or
(iii) if the recipient is a minor - the last address for a carer of the minor that is known by the member, Registrar, Deputy Registrar or other officer.
59 It is clear that the invitation extended to the appellant by the Tribunal in the present case was not sent directly to him as provided for in s 379A(4) of the Act. It is here that s 379G becomes relevant, and it provides as follows:
(1) If:
(a) a person (the applicant) applies for review of an MRT-reviewable decision; and
(b) the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review;
the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.
Note: If the Tribunal gives a person a document by a method specified in section 379A, the person is taken to have received the document at the time specified in section 379C in respect of that method.
(2) If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.
(3) The applicant may vary or withdraw the notice under paragraph (1)(b) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the applicant's authorised recipient.
(4) The Tribunal may communicate with the applicant by means other than giving a document to the applicant, provided the Tribunal gives the authorised recipient notice of the communication.
(5) This section does not apply to the Tribunal giving documents to, or communicating with, the applicant when the applicant is appearing before the Tribunal.
60 It seems clear that, when the Tribunal dispatched its invitation to the appellant to appear, and addressed that invitation to Ms Payne rather than to the appellant himself, it was attempting to invoke the procedure for which s 379G provides. In the submission of the appellant, however, the provisions of s 379G were not invoked on the facts of the present case. This submission is put three ways. First, it is said that because the M2 form was the incorrect one for an applicant not in detention, no valid notice had been given under s 379G when that form was lodged. Secondly, it is said that, because the M2 was not the correct form, the application for review itself was not validly lodged as required by s 347 of the Act, and the appellant was not, therefore, a person who "applies for review" within the meaning of s 347(1). And thirdly, it is said that, if a valid notice under s 379G was given, that notice was varied or withdrawn by the applicant when he signed the M1 form and ticked a box in Section F other than that which was appropriate to nominate Ms Payne, his authorised representative in other respects.
61 The Federal Magistrate rejected the first and third of these points. As to the first, her Honour said:
In my view, by Form M2 the applicant clearly gave the Tribunal written notice of the name and address of an authorised recipient, being Ms Payne even though Form M2 was not the correct form for an applicant who was not in immigration detention. Section 379G does not require that notice of nomination of an authorised recipient has to be given in any particular way or on an authorised recipient has to be given in any particular way or on an approved form (see s.495 of the Act, and reg,1.18 of the Migration Regulations 1994 (Cth)). All that is required is that written notice of the details specified in s.379G(1)(b) be given by an applicant who applies for review of an MRT-reviewable decision. I am satisfied that the applicant gave such notice by lodging with the MRT the completed Form M2 which was in writing and included the name and address of Ms Payne, and in which the applicant also asked Ms Payne to do all things on his behalf, including receiving documents in connection with the review (that is, the review of the delegate's decision to cancel his Subclass 426 visa).
As to the third, her Honour said:
I am not satisfied that an incomplete nomination as an authorised recipient of an unspecified "another person" whose name and contact details were not provided could be said to "plainly and unequivocally" overtake and supersede the nomination in Form M2 of Ms Payne as the applicant's authorised recipient in the sense considered in Lo at [49]. It was ineffective to vary or withdraw the notice. Section 379G(3) was not satisfied.
Her Honour did not deal with the second point, as it had not, it seems, been part of the appellant's case before her. It was raised for the first time on appeal.
62 There is a deal of overlap between the appellant's first and second points. Each asserts the invalidity, or ineffectiveness, of the M2 form as an application for review. It is convenient, therefore, to commence with a consideration of the question whether the lodgement of the M2 form did or, assuming that that was the only relevant event which occurred on 20 November 2009, could, constitute an application for review under the Act. Section 347(1)(a) requires that an application for review "must … be made in the approved form". And "approved form" is "a form approved by the Minister in writing" for the purposes of the provision in which the term is used. The Minister had delegated the power to approve, and that power had been duly exercised such that both the M1 form and the M2 form were approved for the purposes of s 347.
63 It was submitted on behalf of the Minister that, because both forms had been so approved, both answered the description in s 347(1)(a) and either could, therefore, be used by any otherwise qualified applicant, whether or not he or she was in detention. I would not accept that submission. The Minister's (and therefore the delegate's) power to approve could be exercised subject to limitations or conditions. The intent of the M2 form was that it should be used only in the case of an applicant for review who was in immigration detention. Assuming, as we must, that that part of the heading of the form was present at the point of approval, the conclusion is inevitable that the form was approved only for the limited purposes indicated. The result, in my opinion, was that the M2 form was not an approved form in the case of the appellant, and that, by lodging it, he did not comply with s 347(1)(a).
64 It does not, however, follow that the appellant's first point must be accepted. I accept the submission made on behalf of the Minister that there is no requirement under the Act for a notice under s 379G(1) to be included in, or given as part of, an application for review, whether valid or invalid. Indeed, there appears to be no formal requirement for such a notice at all. The fact that the M2 form was not compliant with s 347 considered as an application for review would not, therefore, stand in the way of Section C of that form constituting an effective notice under s 379G.
65 That brings me to the appellant's second point. It is said that, even if a s 379G notice could be given as part of a form that was not itself a valid application for review, unless there was or, at the relevant time, had been, such a valid application, the person ostensibly giving the notice is not someone who "applies for review" within the meaning of s 379G(1)(a), and cannot, therefore, avail himself or herself of the procedure for which that subsection provides. I would commence my consideration of this point by saying that the present case is not an appropriate occasion to consider the abstract question whether a person who never made an application for review, or who made one only after the passage of a substantial period of time, could validly give a notice of the kind for which s 379G provides. That is because of the rather special facts associated with the lodgement of the M2 form and the M1 form by the appellant on 20 November 2009. Those facts, and the way they were dealt with in the appellant's evidentiary case below, have some significance for the remedy which he seeks, based as it otherwise is upon a certain view of the operation of s 379G.
66 The proceeding before the Federal Magistrate was for a constitutional writ pursuant to s 75(v) of the Constitution as made applicable by s 476(1) of the Act. The appellant sought certiorari, mandamus and prohibition, but the essence of his case was that he was denied natural justice by not having been given an opportunity to be heard before the Tribunal, in relation to which the provisions of Div 5 of Pt 5 of the Act, in which ss 360 and 360A are to be found, constitute an exhaustive statement: s 357A. The appellant's case must have been that the Tribunal lacked jurisdiction to proceed unless ss 360 and 360A had been complied with, in which case prohibition would have been appropriate, or that, by proceeding without complying with those sections, the Tribunal had left unperformed its statutory task, in which case mandamus would have been appropriate.
67 In either case, it lay upon the appellant to establish clearly the facts which would have warranted the remedy which he sought. "The burden of establishing clearly the facts which show absence of jurisdiction always rests upon a prosecutor seeking a writ of prohibition …" (R v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138, 153) and, in my view, the position is no different where mandamus is sought. Often, in migration cases, this burden of proof is theoretical rather than real because the factual basis of an applicant's complaint appears clearly enough from departmental records, or from the reasons of the Tribunal or a like body. However, the present was not such a case.
68 The Tribunal had extended to the appellant the invitation required by s 359A of the Act, and the appellant, through his Legal Aid solicitor, filed a response of substance. The notice which the Tribunal dispatched to Ms Payne, purportedly under s 360A of the Act, invited the appellant to appear before the Tribunal on 12 May 2010. There was no response to that invitation. In its decision, the Tribunal noted that, on 10 May 2010, an officer of the Tribunal had contacted Ms Payne, who said that she had not been able to contact the appellant, and was not sure whether he would be able to attend the hearing. On 12 May 2010, about 30 minutes before the scheduled commencing time for the hearing, Ms Payne telephoned the Tribunal and informed it that it was her belief that in all likelihood the appellant would not be attending the hearing. The Tribunal proceeded without a hearing, noting in its decision of 15 June 2010 that the appellant had "failed to attend the scheduled hearing and no reason was provided for his non-attendance".
69 The Tribunal's decision itself does, therefore, provide no evidence from which a failure to comply with s 360A might be inferred. The appellant's case had to be established by primary evidence called in the Federal Magistrates Court. The documents which were on the Tribunal's file, and the copy documents which had been retained by Ms Payne, were tendered. To the extent presently relevant, they consisted of the M1 and M2 forms to which I have referred. A good deal could be inferred from them, particularly when placed with her Honour's rejection of the appellant's evidence as to the time at which, and the circumstances under which, the M1 form came to be completed and lodged. But there remained a question - which has now become significant - about the detail and timing of those events.
70 It was the appellant's case on appeal that what happened at the Tribunal on 20 November 2009 followed a particular sequence. The first event was the lodgement of the M2 form, containing as it did the appellant's purported notice under s 379G. The second event was that someone noticed that the M2 form was the incorrect one, and so endorsed it. The third event was the appellant signing, and lodging, the M1 form. The difficulty with this series of propositions is that it takes the matter further than is warranted by the reasons of the Federal Magistrate.
71 As to what actually happened on 20 November 2009, her Honour said:
It can be inferred that on 20 November 2009 the applicant, or someone on his behalf, delivered to the Tribunal the completed Form M2 signed by Ms Payne and by the applicant, that this form was stamped "received" with a Tribunal stamp dated 20 November 2009 and the words "by hand" were written on it. It can also be inferred that the words "Incorrect Form" were written on the form because the applicant was not in detention and Form M2 is designed for use by an applicant in detention.
It appears that it must have been discovered (presumably by the Tribunal) that the applicant was not in detention. A Form M1 was partially completed by someone and page six of the lodged Form M2 was inserted into that form. The applicant signed the Form M1 lodged with the Tribunal on 20 November 2009. The rest of Form M2 was retained on the Tribunal file (albeit marked "incorrect form").
In these tentative findings by her Honour, there is no justification for placing the events in a neat sequence, in line astern as it were, as proposed on behalf of the appellant before the Full Court.
72 Her Honour noted that "it must have been discovered (presumably by the Tribunal) that the [appellant] was not in detention". This was not a finding by her Honour, and, as a supposition, it encounters the immediate, and obvious, difficulty that, if the applicant had lodged the M2 form with a member of the staff of the Tribunal - over the counter, as it were - it would have been conspicuously apparent that he was not in detention. Had that indeed been the course of events, the very real prospect that, instead of accepting the M2 form for lodgement, the staff member got out the correct form, filled it in as best he or she could (making the obvious error which appears in Section F), inserted the page from the M2 form nominating Ms Payne as representative, and had the appellant sign it, cannot be excluded. The M2 form might well have been received and filed so that a true documentary record of the course of events remained with the Tribunal; or, indeed, for the very reason that it contained a notice under s 379G. The M2 form might well have been endorsed "Incorrect Form" after these events occurred, so as properly to identify it in the records of the Tribunal.
73 I accept that there is nothing in the findings of the Federal Magistrate that points to this particular course of events. But neither is there anything that excludes it. The fact that the M1 form was obtained, signed and lodged by the applicant on the same day as he attended at the Tribunal for the purpose of lodging the M2 form is at least consistent with the kind of contemporaneity of events that I have laid out in the previous paragraph. As a matter of common experience, it may be expected that, had the M2 form initially been received by the staff of the Tribunal without demur, the appellant would then have left the premises and gone his own way. How he might then, on the same day, have been summoned back to the Tribunal to sign another form is not immediately apparent (in which context I note that the M2 form did not set out a mobile telephone number for the appellant).
74 There may have been an explanation of the circumstances surrounding the lodging and treatment of the two forms by the appellant on 20 November 2009 which is perfectly consistent with the case which he now seeks to run. It may well be that the two forms were lodged in a clear sequence, such that it may now be submitted on the appellant's behalf that, when he gave notice under s 379G, he was not a "person [who] … applies for review" within the meaning of subs (1) of that section. The difficulty for the appellant, however, is that he was the one who could have given the evidence which would have justified a finding along these lines. He did not do so. Rather, he gave wholly untruthful evidence about the circumstances in which the M1 form came to be completed. He is, in my opinion, in no position to ask the court to reach a conclusion about the events of 20 November 2009 which, out of a range of possible conclusions that are consistent with the findings of the Federal Magistrate and with the contents of the M1 and M2 forms, are those most favourable to the case that he now wants to advance on appeal.
75 It was at least implicit in the findings below that, at the time the appellant lodged the M2 form, he was "a person [who] … applies for review" within the meaning of s 379G(1) of the Act, and thus capable of giving a valid notice under that provision. For reasons explained above, I consider that the appellant's evidentiary case before the Federal Magistrate was insufficient to sustain an appellate challenge to that conclusion. I take the view that the present appeal must be determined on the basis that the appellant was such a person.
76 I agree with the Federal Magistrate, therefore, that, at the time the appellant lodged his M1 form with the Tribunal, he had given a valid notice under s 379G(1) of the Act.
77 The appellant's third point relied upon a particular view of the act constituted by his lodging the M1 form on 20 November 2009. What was effectively the same page as had been completed in favour of Ms Payne in the M2 form was completed by ticking a box that was appropriate for the nomination of an identified third party, but no-one was identified. That part of the page was left blank in favour of another unidentified person in the M1 form. It was said on behalf of the appellant that this could only be viewed as a withdrawal or variation by him of his original nomination. The two nominations were manifestly inconsistent, and the latter had to be viewed as a variation or withdrawal under s 379G(3) of the Act. It was said that the M1 form should be viewed as one in which no representative at all had been nominated, in which event, consistently with the advice on the form itself, all correspondence should have been sent to the appellant himself.
78 I would not accept that argument. One may put to one side the advice provided on the M1 form that, if an authorised recipient were not nominated, all correspondence would be sent to the appellant himself. The present question is a legal one, which must be determined under s 379G of the Act. Either the appellant had varied or withdrawn his regular notice under that section, or he had not. Section F on the M1 form, as completed, was ineffective to do anything. The box for the nomination of a third party had been ticked, but no third party had been identified. Not only was that ineffective to nominate a person other than Ms Payne, it was ineffective to do anything at all. It was, in my opinion, neither a variation nor a withdrawal in the way contemplated by s 379G(3) of the Act.
79 Some submissions were made as to the inferences that might be drawn, from the documentary indications, of what the appellant intended to do when he signed the M1 form, or of how the Tribunal ought reasonably to have read his intentions in that respect. In my view, questions of that kind do not arise. The question is not whether an administrative officer in the employ of the Tribunal might reasonably have supposed that the appellant did, or did not, intend to withdraw his earlier nomination of Ms Payne. The question relates only to the legal effect of the documents which he signed.
80 In sum, I agree with the Federal Magistrate with respect to each of the aspects of the appellant's case. I am of the view that her Honour's decision was the correct one, and should not be disturbed.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.