Adams and Minister for Immigration and Citizenship
[2007] AATA 1180
•27 March 2007
Administrative Appeals Tribunal
JURISDICTION DECISION AND REASONS FOR DECISION [2007] AATA 1180
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/1402
GENERAL ADMINISTRATIVE DIVISION ) Re Anthony ADAMS Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Professor GD Walker, Deputy President Date27 March 2007
PlaceSydney
Decision The Tribunal has jurisdiction in this matter. ...............[Sgd]..........................
Professor GD Walker
Deputy President
CATCHWORDS
JURISDICTION – whether Tribunal has jurisdiction – did the delegate restrict the manner in which a person can respond to a notice of cancellation – held no such restriction – Tribunal has jurisdiction.
RELEVANT ACT/S
Migration Act 1958 (Cth): ss 134, 135, 135(1), 137, 137J, 137(1), 494B(5), 494C(4)
Education Services for Overseas Students Act 2000 (Cth): s 20
CITATIONS
Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 218
SAAP & Anor v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386
Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 841
JURISDICTION DECISION AND REASONS FOR DECISION
27 March 2007 Professor GD Walker, Deputy President Background
1. The applicant Mr Anthony Adams, born at Pretoria, South Africa on 21 June 1953, was granted a business skills visa on 11 March 2003. On 17 August 2005, he completed and lodged with the respondent a form 1010 survey of business skills required of the holders of such visas 24 months after their arrival in Australia (T8 pp222-231). On 21 June 2006, a delegate of the minister emailed to him a letter titled Notice of Intention to Consider Cancellation of Your Visa (“the notice”) (T6 pp211-215).
2. The notice required the applicant to respond in writing by sending any representations to the delegate, Paul Davis, in the business skills section, as follows:
Please forward your representations to me in writing by 19 July 2006, to Locked Bag 7, Northbridge, WA 6865. As the time for response to a notice of intention to Consider Cancellation is set by legislation, I am unable to grant you an extension. If you do not respond within that time, I may decide to cancel your visa using the information already held by the Department (T6 p215).
It is not disputed that the applicant received that email.
3. By letter dated 8 July 2006 (T4 pp40-45) accompanied by voluminous annexures, the applicant presented detailed representations as to why he believed that his visa should not be cancelled. The letter does not claim that the applicant had insufficient time in which to respond and is addressed to the attention of Mr Paul Davis at the department’s street address in Murray Street, Perth, Western Australia and not the locked bag at Northbridge, Western Australia.
4. By letter dated 18 September 2006, the delegate, Ms Rhonda Barry, notified the applicant of her decision to cancel his business skills visa. The delegate noted that she had given full consideration to his representations (T2 p5).
5. The applicant contended that the notice failed to meet the requirements of s 135 of the Migration Act 1958 (Cth) (the Act) and that, consequently, a condition precedent to the valid exercise of the power to cancel in s 134 was not satisfied at the time the cancellation decision was made. The applicant further contended that as the requisite notice was not given before the decision to cancel was taken, the tribunal had no jurisdiction other than to set aside the cancellation.
6. A jurisdiction hearing was held on 27 February 2007. Before the hearing, the applicant and the respondent respectively lodged written submissions (Exhibits A1 and R2). The s 37 documents (“the T documents”) were taken into evidence as Exhibit R1. The applicant tendered no evidence.
The applicant’s contentions
7. At the hearing, the applicant argued orally that there was a second issue affecting the validity of the notice, namely whether the delegate was entitled to send the notice by email. It is convenient to summarise that contention first.
8. Mr Dobbie pointed out that under question 3 in the form 1010 questionnaire, Mr Adams had marked the “Yes” box in answer to the question “Do you agree to the department communicating with you by fax, e-mail, or other electronic means?”, and had provided his email address (T8 p222). The notice had in fact used that email address (T6 p211). In answer to question 4, the applicant had given his residential address in New South Wales. He then answered question 5, which requested the “Address for correspondence (If the same as your residential address, write ‘AS ABOVE’)”, by writing “as above”.
9. This, Mr Dobbie submitted, raised the issue of whether, if the address for correspondence supplied was the residential address, should the email address supplied in answer to question 3 also be taken to be an address for correspondence?
10. Section 494B(5) provides that a permitted method whereby the minister may serve a “document” is by email to the last email address “provided to the Minister by the recipient for the purposes of receiving documents”. But the email address provided in question 3 was expressed to be for the purposes of “the department communicating” with the applicant. It was not provided for the purposes of the service of documents, and it only related to communications from the department, not from the minister. In Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 218 at para 39, the Full Court of the Federal Court had noted that there is a distinction between the department and the minister which, if not properly reflected in documents, could distract attention from the obligations imposed on decision-makers.
11. Further, if the effect of the applicant’s answer to question 5 on the form 1010 was that correspondence had to be sent to his residential address, the 19 July date would not have allowed sufficient time for the applicant to respond because s 494C(4) provides that if a document is served by prepaid mail, the addressee is taken to have received it seven working days after the date of the document. The reasons of the majority of the High Court in SAAP & Anor v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 made it clear that there could be no “partial compliance” with a statutory obligation to accord procedural fairness (at p183).
12. Mr Dobbie also relied on the argument presented in his written submissions, to the effect that asking the applicant to respond to the notice by writing addressed to the delegate at a post office locked bag in Western Australia had the practical effect of shortening the 28-day period that s 135 requires the minister to allow for the making of representations in response to the notice. If the applicant had been allowed to respond by email, the 19 July date would have been satisfactory, but the delegate had required a written response mailed to the locked bag. No method of communicating a response was described by s 135, however. The section did not contemplate that the postal service would be the only manner in which an applicant could respond. The High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 had criticised the traditional distinction between directory and mandatory requirements and said a better test for determining the issue of the validity of an executive act was to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid (at p390); see also Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 at 396.
13. Could the delegate, therefore, lawfully restrict the manner in which a person was to respond to the notice? If, for example, the delegate Mr Davis had said that the representations were to be in writing and delivered to him by hand in Perth only, that would be an unlawful restriction that effectively reduced the statutory time allowed to respond. The same was true of requiring a response by mail to a locked bag in Western Australia when the Act did not contemplate that as being the only acceptable manner of response. The fetter that the delegate had imposed was not authorised by the Act and resulted in unequal treatment.
14. Support for that conclusion, Mr Dobbie continued, could be found in Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 841, in which Federal Magistrate Scarlett gave prerogative relief against the purported automatic cancellation of a student visa by operation of s 137J of the Act. The notice stated that “You must report personally to a compliance officer at” the department’s office in Lonsdale Street, Melbourne. It failed to inform the visa holder that he could either comply with the notice as worded or attend another office of the department, and reporting to an officer at that office to explain why he was there, and to explain the breach alleged in the notice. Nor did the notice explain that the holder could present himself to any officer at such an office, not necessarily a compliance officer. A number of other shortcomings in the notice were also alleged. Scarlett FM pointed out that the notice set in train an automatic process that could lead to an applicant’s visa being cancelled, with dire consequences for the applicant as a result. The notice therefore should comply strictly with the terms of the section.
15. In this case also, the applicant argued, the restriction imposed prevented the applicant from responding by email, fax, courier or by hand. The consequences were so severe that a fetter removing a day or so of the period allowed for a response was sufficient to invalidate the notice.
The respondent’s submissions
16. In relation to the last-mentioned point, the respondent relied on his written submissions (Exhibit R2). Mr Eteuati began his oral submissions at the hearing by pointing out that the potential injustices highlighted by the applicant did not happen. Mr Adams did respond in time and his representations were duly considered.
17. Scarlett FM’s comments in Uddin [2005] FMCA 841 were distinguishable because the combined effect of s 20 of the Education Services for Overseas Students Act 2000 (Cth), and ss 137 and 137J of the Act made it essential that certain information be given to student visa holders whose visas were being considered for cancellation. The notice in Uddin [2005] FMCA 841 did not provide any particulars as required, did not explain the effect of the relevant sections to the holder and required personal reporting to a compliance officer at a particular department office. The “officer” to whom a holder was required by s 137(1) of the Act to report was defined by the Act for the purposes of that section as “an officer of the department”, not necessarily a compliance officer.
18. In the present case, s 135(1) states that the notice must invite the holder “to make representations to the Minister”, but unlike the word “officer”, the word “Minister” is not defined in the Act. In any event, the delegate had not made a peremptory demand for a particular method of communication but had instead made a request or given an invitation to send the representations to the best place for reaching him. The contact details on the first page of the letter (T6 p211) provided alternative means of communication. The notice had also suggested that if the applicant wished to have further information about the process, he could contact the office by email, telephone, fax or internet. The applicant himself had obviously interpreted the delegate’s request to address his representations to the locked bag as non-binding, as he had not addressed his representations to the locked bag in Western Australia but had used the street address of the department’s Perth office.
19. In my view, the respondent’s submissions on this point are correct. While in retrospect the notice might have been worded more clearly, it did not impose a condition but merely indicated an address which the applicant could be confident would ensure that his representations would reliably reach the minister’s delegate.
20. As regards the point raised for the first time at the hearing, the respondent lodged written submissions after the hearing drawing attention to the combined effect of regulations 2.55(3)(d) and 2.55(8) as showing that the final date specified in the notice was correct. On receiving those submissions, the applicant chose not to press that ground and it is thus unnecessary to deal with it.
21. I conclude that the application fails and that the tribunal has jurisdiction.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President.
Signed: [Sgd] .....................................................................................
Kwai-Ling Wong, AssociateDate of Hearing 27 February 2007
Date of Decision 27 March 2007Solicitor for the Applicant Mr Nigel Dobbie, Parish Patience Immigration Lawyers
Solicitor for the Respondent Mr Tigiilagi Eteuati, Clayton Utz Lawyers
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