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[2012] FCA 1421
Federal Court of Australia
2012-12-14
Edmonds J
Original judgment source is linked above.
The Applicant's Amended Originating Application 23 The applicant's amended originating application filed 29 October 2012 raised one ground of review. It read: The decision of the Tribunal that it had no jurisdiction, because the application was out of time, was attended by jurisdictional error as notification of the delegate's decision had not been given to the [a]pplicant in accordance with s.501G(1)(f)(ii) of the … Act … and, accordingly, the application for review by the Tribunal was not out of time. 24 At the forefront of the applicant's case was the argument that s 501G(1)(f)(ii) requires that the notification letter "states the time in which the application for review may be made" and that the notification letter did not adequately or accurately do this.
The Applicant's submissions 25 In his written submissions, the applicant developed his argument as follows: 5. The Minister dispatched, by post, a Notice of Visa Cancellation ("the Notice") addressed to the business address of the Applicant's Authorised Representative (Ray Turner of Turner Coulson Immigration Lawyers). The letter was dispatched in accordance with s.494B(4) MA [sic] and was deemed received by the Applicant in accordance with s.494C(4) being 7 days after the date shown on it. Thereafter, the Applicant had 9 days (s.500(6B)) in which to seek review, by the AAT, of the Minister's decision to cancel. 6. So much is agreed between the parties. 7. However, due notification, for the purposes of s.5012G(1)(f)(ii) [sic] requires that the Notice "states the time in which the application for review may be made". 8. … 9. In its terms the letter categorically differentiates between Notices that are "delivered by post" and Notices that are "delivered by hand". 10. In this matter, the Notice was delivered by hand from Latouk [sic] Lawyers on 14 April 2011 (see [15.11] of Minister's submissions). The application was filed on 18 April 2011 and was filed within the 9 days allowed by s.500 (6B). 11. Clearly this outcome is invalid as being contrary to s.494B and s.494C as referred to above. 12. This analysis of the Notice simply serves to illustrate what is wrong about the Notice. 13. What is wrong about the Notice is that the time for seeking review is said to be predicated upon "delivery by post" or "delivered by hand" whereas the time for review is properly based upon date of "dispatch" as prescribed by s.494B(4) (in this matter) and is not concerned with actual delivery s.494C(4)). 14. In the event the Notice does not comply with sub-para 501G(1)(f)(ii) and time has not begun to run for the purposes of s.500(6B). 26 Relevantly, the notification letter provided as follows: Review Rights You are entitled to have this decision reviewed by the Administrative Appeals Tribunal (AAT). If you wish to have this decision reviewed, you must lodge your application for review within nine (9) days after the day on which you were notified of the decision to cancel your visa under subsection 501(2) of the Act. You are taken to have been notified of the decision when this notification letter and the attached information is delivered to you or your authorised representative (if applicable). If the letter is delivered by post, it is taken to have been received seven (7) working days after the date shown on it. If it is delivered by hand, fax or email, it is taken to be received on the day of actual delivery. (Emphasis added.) 27 In oral submissions, the applicant argued that, having regard to the immediately preceding sentence, the last two sentences of the Review Rights paragraph should be read as "delivered by post to you or your authorised representative" and "delivered by hand, fax or email to you or your authorised representative", respectively. According to the applicant, so read, the time for seeking review is effectively aligned with the time of physical receipt of the notice contrary to the provisions of subreg 2.55(7)/subs 494C(4). If the notice is to be regarded as having been delivered by hand from Matouk Lawyers to Mr Turner, the time to lodge an application under s 500(6B) would effectively begin to run from the time of physical delivery. This is not the result under reg 2.55 of the Regulations. The inaccuracy of the information given in the notification letter means that it does not comply with s 501G(1)(f)(ii).
The Minister's Submission 28 The Minister refuted the applicant's construction of the information given in the notification letter and submitted that the references to "delivered by post" or "delivered by hand, fax or email" are to the method of dispatch employed by the Minister in accordance with subreg 2.55(3); the immediately preceding sentence is "unnecessary" and "unhelpful", but does not mean that the paragraph is "corrupted". So read, the notification letter does comply with s 501G(1)(f)(ii).
Consideration 29 At the outset, it may be said, with confidence, that if the last three sentences of the Review Rights paragraph had read as indicated below, there would be no doubt that s 501G(1)(f)(ii) had been complied with: You are taken to have been notified of the decision when the notification letter and the attached information [is taken to have been received by you or your authorised representative (if applicable)]. If the letter is [dispatched/sent] by post, it is taken to have been received seven (7) working days after the date shown on it. If it is [given] by hand, [or transmitted by] fax or email, it is taken to be received on the day [it is handed to the person or the day it is transmitted, as the case may be]. 30 Relevantly, what this reconstruction of the paragraph does is disclose the problems with the Review Rights paragraph as it appears in the notification letter. 31 Neither the word "delivered", nor the phrase "delivered by post", is used in reg 2.55 of the Regulations or s 494C(4) of the Act. Both the word and the phrase imply actual delivery, when actual delivery is irrelevant where the method of giving the notice is by prepaid post. Indeed, the word "delivered" is not even used when the notice is given by hand; the phrase used is "handed to". And the word is not used in the context of a giving of the notice by fax, email or other electronic means; the phrase used is "transmitted to". 32 On any view, the last three sentences of the Review Rights paragraph in the notification letter, both individually, and read as a whole, are inadequate, but they are also inaccurate, in terms of whether they comply with the requirements of s 501G(1)(f)(ii) of the Act. 33 So much is exemplified by the facts of the present case. While the notification letter was undoubtedly dispatched by prepaid post (subreg 2.55(3)(c)/subs 494B(4)), it was not "delivered by post"; it was given by hand, the hand of Matouk lawyers, who had nothing to do with the postal service engaged by the Minister by way of dispatch. On the face of the Review Rights paragraph it was entirely reasonable for the applicant's authorised recipient to believe that the time for applying for review ran from that point in time when, by virtue of the relevant provisions of the Regulations and the Act, that time had well and truly expired. 34 For these reasons, I am of the view that the notification letter does not comply with s 501G(1)(f)(ii); that no "notification" has been given with the result that time has not begun to run in respect of an application for review to the Tribunal under s 500(6B) of the Act. 35 The application must be allowed with costs, as agreed or taxed. It remains open to the Minister to give a fresh notice of cancellation, compliant with s 501G(1) of the Act. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.
Wilson
Minister for Immigration and Citizenship
Introduction 1 This is an application under s 476A(1)(b) of the Migration Act 1958 (Cth) ("the Act") for review of a decision of the second respondent ("the Tribunal") ([2011] AATA 325) that it did not have jurisdiction to review the decision of the first respondent ("the Minister") to cancel the applicant's visa ("the cancellation decision"). 2 The Minister was required to give the applicant notice of the cancellation decision pursuant to s 501G(1) of the Act. No issue arises in the present proceeding as to the way in which the Minister purported to give notice. Rather, the application requires an assessment of the adequacy and accuracy of the information given in the notice in relation to the time in which an application for review could be made to the Tribunal as required by s 501G(1)(f)(ii) of the Act. In the event of the information given being found to be inadequate or inaccurate, the ultimate issue is whether the Tribunal was correct to decide that, because the application to the Tribunal was lodged outside the nine day period referred to in s 500(6B) of the Act, the Tribunal lacked jurisdiction to review the cancellation decision.
(2003) 134 FCR 308
(2008) 167 FCR 494
(2003) 128 FCR 469