SZOBI v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT STONE AND JAGOT JJ 1 The issue in this appeal is whether the inclusion of a statement on an envelope "If not delivered within 7 days, return to GPO Box #### Sydney NSW 2001" means that the delegate of the first respondent (the Minister for Immigration and Citizenship) did not dispatch a document (namely, notice of refusal to grant the appellant a protection visa) to the appellant within the meaning of s 494B(4) of the Migration Act 1958 (Cth). 2 If not dispatched within the meaning of s 494B(4) the Minister failed to notify the appellant of the decision to refuse to grant the appellant a visa as required by s 66(1) of the Migration Act. The consequence then is that the prescribed period for the appellant to make an application for review of the Minister's decision under s 412(1)(b) has not yet commenced. 3 If dispatched within the meaning of s 494B(4) the Minister notified the appellant of the decision as required by s 66(1), such notice being taken to have been received by the appellant 7 working days after the date of the document under s 494C(4)(a) of the Migration Act. The consequence then is that the prescribed period for the appellant to make an application for review of the Minister's decision under s 412(1)(b) expired before the date on which the appellant in fact made an application for review. 4 The Refugee Review Tribunal found that the Minister had complied with s 494B(4) of the Migration Act. Accordingly, the prescribed period for review had expired before the appellant made her application for review of the Minister's decision to refuse to grant a protection visa. It followed, in the Tribunal's view, that the Tribunal had no jurisdiction in the matter. On appeal, the Federal Magistrates Court reached the same conclusion (SZOBI v Minister for Immigration [2010] FMCA 259). 5 In this appeal the appellant contended that the Tribunal and Federal Magistrates Court erred in this regard. According to the appellant the inclusion of the impugned statement on the envelope was not authorised by s 494B(4) and was inconsistent with the obligation of dispatch imposed on the Minister by that section. 6 The facts were not in dispute. The appellant arrived in Australia on 10 May 2009. The appellant applied for a protection visa on 2 June 2009. On the same day, the Minister's Department sent a letter to the appellant at the address the appellant notified on the application for the purposes of receiving documents. This letter was apparently sent by ordinary post. The appellant received this letter. On 31 July 2009, the Minister's Department sent another letter to the appellant at the same address inviting the appellant to attend an interview. This letter was sent by registered post. Australia Post sent this letter back to the Department on 12 August 2009. The Minister's delegate determined the protection visa application on the information available and refused to grant the visa. The Department sent another letter to the appellant at the same address on 14 August 2009 notifying the appellant of the refusal of the protection visa application. This letter was sent by registered post. The envelope included the impugned statement: If not delivered within 7 days, return to GPO Box #### Sydney NSW 2001 7 Australia Post sent this letter back to the Department on 2 or 7 September 2009 (the date is unclear). 8 The appellant sent a letter to the Department dated 1 August 2009 (which the Department did not receive until 14 September 2009) asking about the application and whether a letter had been sent about an interview. The appellant sent a facsimile to the Department on 26 October 2009 saying that she had received no correspondence from the department other than the letter of 2 June 2009. On 27 October 2009 the appellant called the Department and asked about the application. The Department advised that the application had been refused. The appellant collected a copy of the decision from the Department on 30 October 2009. On the same day the appellant lodged an application for review of the decision with the Tribunal. 9 Section 494B of the Migration Act contains provisions as follows: (1) For the purposes of provisions of this Act or the regulations that: (a) require or permit the Minister to give a document to a person (the recipient ); and (b) state that the Minister must do so by one of the methods specified in this section; the methods are as follows. … 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. 10 Section 494C of the Migration Act is relevantly in these terms: (1) This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A). … Dispatch by prepaid post or by other prepaid means (4) If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document: (a) if the document was dispatched from a place in Australia to an address in Australia - 7 working days (in the place of that address) after the date of the document; or (b) in any other case - 21 days after the date of the document. 11 Section 412(1) of the Migration Act provides: (1) An application for review of an RRT reviewable decision must: (a) be made in the approved form; and (b) be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and (c) be accompanied by the prescribed fee (if any). 12 In her comprehensive and considered submissions on behalf of the appellant Ms Douglas-Baker of counsel set out the arguments in support of the appellant's case. (1) Compliance with s 494B of the Migration Act leads to the consequence of the deemed receipt of a document under s 494C. Section 494C is a deeming provision proper. It does not create a mere rebuttable presumption of receipt. It deems receipt to have occurred. Given this consequence (with the related consequence for the commencement of the prescribed period in which an application for review may be made) s 494B should be strictly construed. (2) Sections 494B and 494C have been described as prescribing "with precision the steps to be taken in notifying a visa applicant of the outcome of his or her application" (Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 at [14]). (3) On these bases s 494B(4) should be construed as an exhaustive statement of the elements that must be complied with in order for the pre-paid post method to be effective and for the deemed receipt provision in s 494C(4)(a) of the Migration Act to apply. (4) In s 494B(4) "dispatch" means more than the mere sending of the document. It involves elements of promptitude and expedition, as well as an official act of notification (see Oxford English Dictionary Online 2010). The dispatch of a document under s 494B(4), accordingly, envisages that the document is to "arrive at its intended destination without any third party intervention or the need for further steps to effect delivery". (5) The impugned statement on the envelope is inconsistent with the direction to deliver the article to the specified address. The impugned statement, moreover, imposes a condition on delivery ("If not delivered within 7 days…") which is inconsistent with the requirement in s 494B(4) that the Minister dispatch the document. By the impugned statement the Minister's delegate purported to direct Australia Post to try to deliver the document for a period of 7 days and, if not delivered within that period, to return the document to the Department. Further, the period of 7 days is less than the prescribed period under s 412(1)(b) of the Migration Act. By imposing this condition the Minister impermissibly qualified the purported dispatch in a manner not authorised by s 494B(4). (6) The impugned statement should be inferred to have had a material adverse consequence on the appellant (as referred to in Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627; [2009] HCA 37 at [35]). By reason of the impugned statement the appellant did not receive notice of the decision refusing the grant of the protection visa. This inference should be drawn from the face of the envelope as returned by Australia Post to the Department (specifically, the circling of the whole of the impugned statement). 13 The appellant sought but was refused leave to rely on an additional argument to the effect that registered mail is not pre-paid post within the meaning of s 494B of the Migration Act. The Minister objected to the grant of leave on the ground that evidence about the operation of the system of registered post would be required and was not available as the point had not been raised before the Tribunal or Federal Magistrates Court. The Minister also noted authority to the contrary of the appellant's proposition (for example, Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 77; [2000] FCA 377 at [29] - [33]). Accordingly, the status of registered mail as pre-paid post does not arise in this appeal. 14 Despite the thoughtful and well presented submissions of Ms Douglas-Baker, we are not persuaded by her arguments on the appellant's behalf. It may be the case that the inclusion of some statement or another on an envelope might amount to a direction or condition inconsistent with the obligation of dispatch imposed by s 494B(4) of the Migration Act. But, as the Minister submitted, the operation of s 494B(4) is not to be determined by reference to extreme or absurd examples (New South Wales v Commonwealth of Australia (Work Choices Case) (2006) 229 CLR 1; [2006] HCA 52 at [188]). Once the potential for such examples is put to one side it is apparent that the appellant's case confronts fundamental difficulties. 15 Ms Douglas-Baker properly acknowledged that not all statements on an envelope other than the relevant address as referred to in s 494B(4)(c) would be impermissible. Ms Douglas-Baker thus conceded that it was permissible for the Minister, for example, to include a return address so that if the envelope could not be delivered it could be returned to sender. Ms Douglas-Baker, however, distinguished between the mere inclusion of a return address and the impugned statement on two grounds: - (i) a return address is the provision of information only and not the giving of a direction or imposition of a condition inconsistent with the obligation of dispatch, and (ii) the impugned statement contained a prescription as to time inconsistent with the obligation of dispatch. Analysis of these propositions reveals the following. 16 First, the propositions are inconsistent with the primary argument that s 494B(4) is an exhaustive statement of the steps required to give notice of a document. If, as conceded for the appellant, something extra might be included on an envelope (such as the return address), then what is the legal criterion for distinguishing between permissible and impermissible statements and what is the source of that criterion? These questions are unanswerable for the reason that s 494B(4) does not prescribe the appearance of the envelope or package in which the document to be notified is contained. 17 Second, the distinction between a statement comprising information and a statement comprising a direction or condition dissolves under scrutiny. For example, the provision of a return address on an envelope is at least an implied request for the envelope to be returned to sender if delivery fails. If that implicit request is made explicit by a statement such as "Please return to [address] if not delivered" it is difficult to see any difference of substance. A statement expressed in imperative terms such as in the present case "If not delivered…" may be different in form but again, in substance, cannot constitute anything more than a request to the delivery service. 18 Third, s 494B(4) has nothing to do with receipt. Section 494B(4) is concerned solely with dispatch. The consequence of dispatch as required under s 494B(4) is deemed receipt under s 494C(4). The impugned statement relates to non-delivery and return. In the context of s 494B(4) (dispatch) and s 494C(4) (deemed receipt) it is difficult to characterise the impugned statement as a condition or direction in connection with dispatch. 19 Fourth, insofar as this connection between dispatch and a condition or direction relating to non-delivery and return was sought to be supported by the concept of dispatch including a temporal component ("to send off post-haste or with expedition or promptitude…" as defined in the Oxford English Dictionary Online), as the Minister said, the statute makes its own time provisions. Section 494B(4)(a) requires the Minister to date the document and then dispatch it within 3 working days of the date of that date. This requirement ensures that the related provisions, ss 494C(4)and 412, can operate effectively. Section 494C(4)(a) deems receipt to have occurred 7 working days after the date of the document (not the date of dispatch). The prescribed period of 28 days in s 412(1)(b) runs from the date of notification of the decision. Given that the statutory provisions contain their own detailed temporal sequence there is no basis for construing "dispatch" in s 494B(4) as meaning anything other than "send". As the Minister said, the fact that the 3 working days is calculated in the "place of dispatch" supports construing "dispatch" as consisting of nothing more than the physical act of sending the document to the relevant address by one of the nominated means. If it is accepted that "dispatch" means "send" the characterisation of the impugned statement as a condition or direction affecting that act - the act of dispatch - lacks a rationally persuasive basis. 20 Fifth, this lack of rational connection is also apparent in respect of the time period of seven days specified in the impugned statement. The period of 7 days concerns delivery, not dispatch. The statutory requirement is dispatch not receipt. There is nothing in the statutory provisions to support any implied obligation on the Minister to ensure that continuous attempts at delivery are made throughout any of the prescribed periods, be it the 7 working days in s 494C(4)(a) or the 28 days from deemed notification in s 412(1)(b). 21 Sixth, if the impugned statement can be characterised as an impermissible departure from the requirements of s 494B(4) (which, for the reasons above, we do not accept) the question remains whether the departure had any material adverse consequence on the appellant. The appellant contended that the circle drawn around the whole of the impugned statement should lead to the inference that it affected Australia Post's attempts to deliver the document to the appellant, effectively depriving the appellant of the opportunity to be notified of the decision and to make an application for review within the prescribed period. That inference, however, cannot be drawn. The envelope as returned to the Department bears other notations. They include, in handwriting, "C/L 17/8" and "F/N 26/8", as well as a return to sender sticker showing the box "unclaimed" with a tick against it and the date 2 or 7 September 2009 above the date line. These notations support the inference that Australia Post attempted delivery twice but failed - it left at the relevant address a card notifying that the document was available for collection on 17 August 2009 and a final notice for collection on 26 August 2009, with the document returned to sender by Australia Post on 2 or 7 September 2009. According to evidence before the Tribunal the document was dispatched on 14 August 2009. Australia Post's second attempt at delivery was 12 days after dispatch. That fact is inconsistent with Australia Post having been affected in the performance of its functions by the impugned statement. Moreover, the Australia Post Letter Guide (Australia Post, Post Guide - Letter Post & Electronic Mail within Australia (November 2005)) specifies that it "cannot agree to requests by senders that undeliverable articles are returned within a certain time". In the face of these matters, the inference for which the appellant contended cannot be drawn. 22 For these reasons we are not persuaded that the impugned statement caused any miscarriage in the method for the giving of documents to a person authorised by s 494B(4) of the Migration Act. As the Tribunal and Federal Magistrate found, the decision refusing the appellant's protection visa was given to the appellant in accordance with s 494B(4). Accordingly, the deemed receipt provision in s 494C(4) operated. The review application made on 30 October 2009, thereby, was outside the prescribed period under s 412(1)(b) of the Migration Act. The Federal Magistrates Court, in consequence, did not err in concluding that the Tribunal had no jurisdiction to deal with the application for review. The appeal must be dismissed. The Minister indicated that, as the case was a test case, the Minister should pay the appellant's costs of the appeal irrespective of the result. We make orders accordingly. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Stone and Jagot.