Vean of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

11 The Tribunal found that on 17 August 2001, the appellant had completed a 'Form 956' in which, apart from indicating his residential address, he authorised his sister, Ms B D of a particular address in Cranbourne, Victoria, to act on his behalf in relation to his application for a protection visa in dealings with the Department of Immigration & Multicultural Affairs. The form is entitled 'Authorisation of person to act and receive communication'. It provided the following authorisation:

'I [the applicant of xxxx address] authorise the following person to act on my behalf in relation to my application/sponsorship in dealings with the Department of Immigration and Multicultural Affairs (DIMA). This includes authorising DIMA to send that person any communication, documents or notifications relating to my application/sponsorship that would otherwise have been sent to me.' 12 The document was signed by the appellant and by his sister Ms B D. She also completed a separate section of the document which was headed 'Consent by authorised person', and which included a question: 'As the authorised person named on this form, do you agree to DIMA communicating with you by facsimile, e-mail, or other electronic means?' Ms B D ticked the box marked 'yes' in answer to that question, and provided an e-mail address for any such communication. THE TRIBUNAL'S DECISION 13 The Tribunal concluded that the respondent was notified of the decision of the delegate by the notice being sent to the appellant's authorised recipient in accordance with s 494B(4), so that he was taken to have received the notice no later than 15 January 2002. The authorisation of 17 August 2001 was still in force. Notice was given to the authorised recipient, Ms B D, under s 494D(1), and so was taken to have been given to the appellant by reason of s 494D(2). The period specified by s 412(1)(b) therefore expired on 11 February 2002. The application for review given to the Tribunal on 26 February 2002 was therefore after the prescribed period, and it had no power to entertain the application. THE PRIMARY JUDGMENT 14 The appellant sought to quash the decision of the Tribunal that it lacked jurisdiction and sought an order that the Tribunal proceed to hear and determine his application for review. To achieve that, he had to establish that the application to the Tribunal was within time. He contended that the application to the Tribunal had been given within time, notwithstanding the findings of the Tribunal, by reason of the following arguments:

1. on its proper construction, s 494D(1) was not complied with because, following the authorisation, the notification was not given to the authorised recipient instead of the applicant, but was given to the applicant care of the authorised recipient at the authorised recipient's address; and
2. the respondent was obliged, in notifying the authorised recipient of the decision of the delegate, to first notify the authorised recipient by e-mail because of the completion of that part of the form. 15 As to the first matter, the learned judge at first instance said: 'I can see no reason why the expression "give the authorised recipient, instead of the first person" should be construed so narrowly that a letter sent to the applicant, care of his authorised recipient at her address, does not constitute a "giving" of that letter to the authorised recipient. The word "give" is plainly a word of wide amplitude. It is not to be equated with physically handing over an object. Indeed, s 494B expressly distinguishes between giving by hand, and giving through dispatch by prepaid post. The word give in s 494D(1) must surely have a similarly broad meaning. The Concise Oxford dictionary defines "give", inter alia, as "making another the recipient of something in the subject's possession". To cause something to be put in the possession of another is, relevantly, to give the object to that other. That is precisely what the delegate did with regard to the authorised recipient in this case. If I am wrong, as a matter of construction, I would still say, conformably with Project Blue Sky, that a failure to name the authorised recipient as the person to whom the letter is addressed, rather than the applicant, care of that authorised recipient, does not of itself invalidate the notification process. The likelihood of the applicant being informed of the arrival of the letter is no different in either case. Considerations of substance, rather than form, should prevail.' 16 As to the second contention, the learned judge at first instance concluded that the Act permitted the respondent to adopt whichever of the methods provided for in s 494B was regarded as appropriate to effect the notification. The fact that Form 956 contemplated, inter alia, electronic notification provided the authorised recipient was prepared to receive electronic communication, did not oblige the respondent to adopt that method of communication. His Honour continued: 'In my view there is no substance in this second submission. There is nothing in Form 956 which constitutes an "agreement" on the part of the respondent that all communications made with the authorised recipient will, at least in the first instance, be made by "facsimile, e-mail or other electronic means". There are several obstacles standing in the way of this submission. The first is that Form 956 upon its proper construction, does not give rise to any such agreement. There is nothing in the form which suggests that the respondent is prepared to forego any of the other methods available to him in s 494B merely because the authorised recipient consents to receiving communications by e-mail. The second is that even if an agreement of that type could be implied, there would be no consequences of any legal relevance to this proceeding flowing from it. That is because, as a general rule, representations, undertakings or promises by public officials do not alter the extent of an official's public power, nor affect the normal legal consequence attendant upon its excess: see generally M Aronson and B Dyer, Judicial Review of Administrative Action (2nd edition, 2000) at 118-124 and Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 207-211 per Gummow J. The third is that any disconformity between the language of Form 956 and that of s 494B, must be obviously resolved in favour of the statutory provision, and not the form. The statutory provision is not to be read down by the terms in which the form happens to be expressed.' THE GROUNDS OF APPEAL 17 The notice of appeal is obscure, except to the extent that it identifies the ground that the learned judge at first instance erred in concluding that the decision of the delegate 'was correctively [sic] given to the authorised recipient'. The contention is that because the letter of 3 January 2002 was addressed to the appellant, care of the authorised recipient Ms B D, and not to Ms B D, it did not satisfy s 494D(1) of the Act. 18 Counsel's outline of submissions maintains that point. It is considered below. 19 In addition, the submissions appear to raise the following further matters, not raised before the Tribunal or at first instance or in the notice of appeal: 20 It was contended that the letter of 3 January 2002 told the appellant that he had 28 days 'after notification of this decision' to make a valid review application, so the appellant was misled about the period within which he could seek review by the Tribunal. It is implicit in the contention that the time period specified in s 412(1)(b) can somehow be ignored in such circumstances. 21 The argument must be rejected. The letter of 3 January 2002 did not, in its terms, mis-state the effect of s 412(1)(b) in the manner alleged. It stated that the relevant period is 'for 28 days after notification of this decision, which you are taken to have received 7 days from the date of this letter'. It is unnecessary to consider what, if any, legal consequences might flow if the letter had misrepresented in a material way the applicable time limit. 22 Section 66(2)(d)(ii) of the Act requires the notification of the delegate's decision to state the time in which the application for review may be made. As noted, s 494C provides that where notification is given under s 494B (or under s 494D) by dispatch by prepaid post, the person is taken to have received the notification seven working days (not seven days) after the date of the notification. Section 412(1)(b) requires any application for review of the delegate's decision to be given to the Tribunal not later than 28 days after notification of the decision. 23 In Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1292 (Chan Ta Srey), Gray J concluded that notification of the decision of a delegate which specified the time for review as being 'within 28 days of the date of this letter' as not fulfilling the requirement of s 66(2)(d)(ii) of the Act. It did not state the time within which the application for review might have been made. His Honour referred to the purpose of s 66(2) of the Act in the following terms at [45]: 'The evident purpose of the provisions in s 66(2) of the Migration Act is to ensure that the legislative scheme in relation to rights of review of decisions operates fairly. The intention is that not only should an unsuccessful applicant for a visa be told that his or her application has been unsuccessful, but he or she should also be given enough information to pursue the right of review if disposed to do so. That information includes the criterion or criteria that the applicant failed to satisfy, any legislative provision that prevented the grant of a visa, in most cases the reasons why the criterion was not satisfied or the provision prevented the grant of the visa, and the steps required to make an application to review the decision. Without all of this information, an unsuccessful applicant would be disadvantaged in the operation of the scheme, in which the time limits are strict and in which there exists no power, discretionary or otherwise, to enlarge them. A bridging visa is to be kept alive, to prevent the person from becoming an unlawful non-citizen, until it can be seen whether an application for review is made and, if such an application is made, until it has been determined.' 24 Hence, he concluded that each element of the requirements of s 66(2) is an integral part of the scheme of notification, so then all the requirements must be met before there can be a 'notification' of the delegate's decision, and so before the time for review prescribed by s 412(1)(b) can commence to run. 25 Allsop J in Zhan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 327 appears to have adopted a similar approach, but as Gray J acknowledged, Marshall J in Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1209 has taken a different view. 26 Counsel for the respondent argued that the decision of Gray J in Chan Ta Srey did not directly apply to the present circumstances. Any misstatement of time in the letter of 3 January 2002 was not as to the time prescribed by s 412(1)(b), but as to the time of notification. Counsel for the respondent pointed out that the brochure accompanying the letter of 3 January 2002 clearly described the notification date as being seven working days after the date of the letter. That is, the brochure correctly reflected the effect of s 494C of the Act. Moreover, the letter directed the appellant's attention to the accompanying brochure to identify his review rights. 27 There is therefore material upon which it could have been found that the letter and the material enclosed with it did satisfy s 66(2)(d)(ii). The point was not argued before the Tribunal or at first instance, and so no findings of fact have been made on the matter. If the Tribunal had made findings of fact, any attack upon them may not have demonstrated jurisdictional error so s 474 may have inured its decision from judicial review. In those circumstances, there must be considerable doubt whether the appellant should now be permitted to take the point. However, as we are of the view that the appellant was not notified of the delegate's decision in the particular circumstances until he received the letter of 3 January 2002 on 6 February 2002, so his application for review by the Tribunal was within the time prescribed by s 412(1)(b), it is not necessary to determine in this matter whether the notification of the delegate's decision satisfied the requirements of s 66(2)(d)(ii) or to address those issues. 28 Counsel for the appellant next contended that the Tribunal somehow should have treated the (alleged) delay on the part of the authorised recipient in informing the appellant of the need to collect the letter addressed to him as unfair, and as 'proscribed in both statute and case law'. 29 The argument must also be rejected. There is no finding of a long delay. The evidence is that a card informing the appellant of the registered mail to be collected was received by the authorised recipient, Ms B D, on 3 February 2003 and the appellant arranged for the letter to be collected on 6 February 2002. There was some evidence that two notice cards had earlier been left at the address of Ms B D, but the Tribunal made no finding on that matter. Counsel for the appellant did not identify any statutory provision which applied, so as to enable the appellant to invoke a generic claim of unfairness, even if there were a delay in the way alleged. Section 494B and s 494D are clearly intended to operate according to their terms, and not to be qualified or to be read as subject to some overriding 'fairness' requirements. 30 Counsel for the appellant further contended that the Tribunal should have concluded that the appellant had been misled into believing that the nomination of the authorised recipient had lapsed because the respondent on 13 November 2001 had written to him at his former address, as given on the application for a protection visa. 31 The Tribunal had no evidence that the appellant had been so misled, although the appellant gave evidence about receipt of the letter of 13 November 2001. He did not say that, thereafter, he expected the respondent to communicate with him only by correspondence at his current address. His statutory declaration of 10 April 2002 submitted to the Tribunal indicated that he believed the effect of the provision of the details of an authorised recipient was that the respondent would communicate with the authorised recipient only if he was unable to be contacted directly. That misunderstanding about the operation of s 494D of the Act does not support the contention. It is not necessary to consider whether, if the facts so asserted had been found by the Tribunal, ss 494B and 494D would not have had effect according to their terms. It is not a proposition which is immediately attractive. 32 It was also contended by counsel for the appellant that the Tribunal had the power to 'override' the time limitations prescribed by s 412(1)(b) if the justice of the case required it. 33 No authority was cited in support of the proposition. There is a Full Court decision of this Court to the contrary: Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324; (2000) 97 FCR 407. Some analogy was sought to be drawn from the Tribunal's obligation to accord procedural fairness to the appellant: see e.g. Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte 'A' [2001] HCA 77; Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57. The analogy is misconceived. The issue is not the procedural obligations imposed upon the Tribunal in performing its review function under the Act, but whether the Tribunal had power to entertain the application for review lodged out of time. An alternative argument was presented based upon s 420 of the Act, but that section does not provide any reason to read s 412(1)(b) other than according to its terms. The terms of s 412(1)(b) are clear. They do not admit of qualification. There is no challenge to the validity of s 412(1)(b) on this appeal. The Tribunal, in the circumstances it found to exist, correctly applied s 412(1)(b) and concluded it had no valid review application before it. 34 Finally, counsel for the appellant reargued the claim that the notification to Ms B D as the authorised recipient was invalid because it was not first given electronically. The reasons of the learned judge at first instance on that argument are plainly correct. It is sufficient to agree with them, without repeating them. They are set out in [18] above. CONSIDERATION OF S 494D(1) 35 Section 494D(1) obliges the respondent to 'give the authorised recipient, instead of' the appellant the notice of the delegate's decision which the respondent would otherwise have given to the appellant. 36 It therefore distinguishes between giving the letter to the authorised recipient on the one hand, and giving the letter to the appellant on the other. That distinction is carried into s 494D(2). By giving the letter to the authorised recipient (if that were done), the respondent is taken to have given the letter to the appellant. Section 494D(2) also permits the respondent to give a copy of the letter to the appellant. 37 What is clear is that s 494D(1) is enlivened only when the relevant document, in this instance the letter of 3 January 2002, was 'given' to the authorised recipient. It must be given to the authorised recipient by one of the means provided for in s 494B. Clearly the addresses contemplated then in s 494B(4)(c)(i) and (ii) for dispatch by prepaid post are those applicable to the authorised recipient, and not some other addresses such as those of the appellant or of some other person. 38 The letter of 3 January 2002 was not addressed to the authorised recipient. It was addressed to the appellant, care of the authorised recipient. The factual consequence was that the authorised recipient did not consider the letter was addressed to her. She notified the appellant of the letter addressed to him at her address, and the appellant in fact arranged the collection of the letter from the post office. 39 We do not consider the letter of 3 January 2002 was, in the circumstances, given to the authorised recipient. The respondent's contention to the contrary may be tested by reference to s 494B assuming the letter was to be given to the appellant. If the letter had been addressed to another person (not the appellant) at care of the appellant's last address for service (see s 494B(4)(c)), it could not be said to have been given to the appellant. That is clearly not the intention of the legislature about how s 494B(1) and (4) should operate. 40 Section 66 of the Act ensures that visa applicants are informed of the outcome of a visa application and the reasons for the outcome, and that the legislative scheme in relation to rights of review operates fairly. Sections 494A to 494D provide how such notification may be given. They strike a balance between the desirability of a visa applicant being personally notified of the outcome of a visa application, and the administrative difficulties sometimes confronting the respondent in being able to do so. Sections 494B and 494D therefore provide options to the respondent to give such notification. Section 494C then prescribes the consequences of the respondent adopting one or other of those options, including s 494C(4). It provides that the person is 'taken to have received the document' by a specified time. If the course provided for under s 494D(1) is properly taken, s 494D(2) provides that the respondent then is 'taken to have given the document' to the appellant. 41 The essential elements of compliance with s 494B(1) and (4) and s 494D(1) are: · the giving of the document to the appellant or to the authorised recipient, and · the dispatch of the document to one of the addresses specified in s 494B(4)(c). 42 In this matter, the correct specified address of the authorised recipient was used, but the addressee was not the authorised recipient. That is one of the two critical elements of the means of notification prescribed by s 494B(1) and (4)(c) and s 494D(1). 43 In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, McHugh, Gummow, Kirby and Hayne JJ at 388 - 389 [91] said: 'An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.' 44 After discussing the continued utility of the distinction between mandatory and directory requirements, their Honours said at 390 [93]: 'A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.' 45 In this matter, of course, the sending of the letter of 3 January 2002 in the manner described was not invalid. The issue is whether it was done in the manner prescribed by s 494B(1) and (4) and s 494D(1) so as to have the effect prescribed by s 494C(4) and s 494D(2). That is, the issue is whether it should result in the notification being taken to have been given to the appellant, and the appellant being taken to have received it, seven working days after the date of the letter. That is a matter of construction of the relevant provisions. The ordinary expression of the word 'give' involves, in the case of correspondence, the document being addressed to the person to whom it is to be given. There is nothing in the context of the words, or in the consequences of ascribing to the word 'give' its normal meaning, or in the purpose of other relevant provisions of the Act, which requires the word to be read in a way that does not correspond with its literal meaning (see e.g. Project Blue Sky at 384 [78]). Indeed, given the balancing of the policy considerations underlying ss 494A to 494D reflected in their careful wording, it would seem appropriate to ascribe to that word its normal meaning. 46 The consequence is that the letter of 3 January 2002 was not given to the authorised recipient, because it was addressed to some other person (the appellant) care of the address of the authorised recipient. And it was not given to the appellant at one of his addresses provided for by s 494B(4)(c). Accordingly, the notification is not one which attracts the operation of s 494C(4) and s 494D(2), that is the appellant is not taken to have received the document seven working days after its date of 3 January 2002. 47 In our judgment, the Tribunal therefore erred in law in determining that the application for review was outside the time specified in s 412(1)(b) and in dismissing the application. Such an error, reflecting an incorrect conclusion that the letter of 3 January 2002 answered or satisfied the statutory description in ss 494B and 494D, is an error of law: see e.g. Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 at [24]. Its decision involved jurisdictional error because, by its error of law, it wrongfully refused to exercise its jurisdiction: see Plaintiff S 157 of 2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476. 48 The appeal should be allowed, and the orders at first instance should be set aside. The decision of the Tribunal of 30 May 2002 should also be set aside, and the Tribunal should be directed to hear and determine the application for review lodged on 26 February 2002. The respondent should pay the costs of the appeal and at first instance.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Gray, Whitlam & Mansfield.

Solicitor for the Appellant: Di Mauro Solicitors

Date of Close of Written Submissions: 12 December 2003

Date of Hearing: 21 November 2003

Date of Judgment: 23 December 2003