Bajwa v Minister for Immigration
[2008] FMCA 915
•4 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BAJWA v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 915 |
| MIGRATION – Review of a Migration Review Tribunal decision – refusal of a Skilled Australian-sponsored (Class BQ)(subclass 139) visa – no reviewable error – application dismissed. |
| Acts Interpretation Act1901 (Cth), s.25C Migration Act 1958 (Cth), ss.45, 66, 91X, 338, 347, 494A, 494B, 494C, 494D, 495 Migration Regulations 1994 (Cth), reg.2.07, 2.16, 4.10, Schedule 2, cl.13 Safety, Rehabilitation and Compensation Act 1988 (Cth) |
| Australian Postal Corporation v Forgie [2003] FCAFC 223 Bal v Minister for Immigration & Multicultural Affairs (2002) 189 ALR 566 Grunwick Processing Laboratories Ltd v Advisory, Conciliation and Arbitration Services [1978] AC 655 |
| Applicant: | ADITJA PAL SINGH BAJWA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG 3055 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 19 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 4 July 2008 |
REPRESENTATION
| Solicitors for the Applicant: | Mr R Turner of Parish Patience Immigration |
| Counsel for the Respondents: | Ms A Mitchelmore |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application filed 19 March 2008 on is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3055 of 2007
| ADITJA PAL SINGH BAJWA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant, Aditja Pal Singh Bajwa, is a citizen of India and a permanent resident of Australia. On 30 June 2006 the applicant’s brother, Ajay Pal Singh Bajwa, applied for a Skilled Australian Sponsored (Class BQ)(sub-class 139) visa and named the applicant as his sponsor. The application also included the applicant’s mother, Narinderjit Kaur, and sister, Tania Bajwa, as dependents. The application was lodged by Parish Patience Immigration Lawyers.
A Court Book (CB) prepared and filed by the first respondent’s solicitors is marked Exhibit “A” and is the only evidence before the Court.
On 4 April 2007, a delegate of the Minister for Immigration notified the applicant’s migration agent by email that she had refused the visa application in respect of the dependent family members, being the applicant’s sister and mother on the basis that as they did not reside with the primary applicant’s household, they were not dependent members of his family unit as required by cl.139.311 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”).
The email from the delegate noted:
This decision may be reviewable by the Migration Review Tribunal. The sponsor will have a period of 70 days after you have taken to have been notified of this decision to apply to the Migration Review Tribunal for a review of the decision.
As this decision has been sent to an email address you will have deemed to have received this letter, and the applicant will be taken to have been notified of the decision today. (CB 167)
On 20 June 2007, the applicant’s migration agent lodged an application for review of the delegate’s decision with the Migration Review Tribunal (“the Tribunal”) (CB 173). On 9 July 2007, the Tribunal wrote to the applicant, addressed to the migration agent, inviting him to comment on the following information:
Section 347 of the Act sets out the requirement of making an eligible application for review, including the requirements to make an application within the prescribed period.
According to regulation 4.10, you are required to make an application for review 70 calendar days after the date that the department notified the visa applicant of the decision. The department made its decision on 4 April 2007 and has taken to have notified the visa applicant of the decision on 4 April 2007. As the department’s letter was emailed to the visa applicant or authorised recipient, this date is the same date as the department’s notification letter. This means that the last day you could have made an application for review was 13 June 2007.
On 31 July 2007, the applicant’s migration agent responded to the Tribunal’s letter having obtained an extension of time to respond (CB 192). The agent drew to the Tribunal’s attention the qualified terms in which the agent had agreed to receive documents from the Department electronically. The agent expressed the view that this qualification meant that electronic communication could only be effected if accompanied by service by ordinary mail. By reason of the alleged limited authority, the agent argued that if the communication was by email and ordinary post, two service dates were applicable, namely the date of the email and then seven working days from the date of the letter. Since the Tribunal application had been made within 70 days of the letter’s date, the agent argued that the application was within time.
By letter dated 5 September 2007, the Tribunal notified the applicant that his application was ineligible for review (CB 215). In its reasons, the Tribunal noted the 70 day time limit in applying for review of a delegate’s decision, and the absence of any provision in the Migration Act 1958 (Cth) (“the Act”) for that period to be extended. The Tribunal noted that s.66(2) of the Act provides that notification of a decision to refuse a visa must contain information about why the visa was refused and, if there exists a right of review, how to apply. The letter also referred to reg.2.16 of the Regulations which provides that for the purposes of s.66(1), the Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods in s.494B of the Act.
The Tribunal found that since the delegate’s notification letter was sent by email on 4 April 2007, and in view of the applicant’s agent having agreed to communicate by fax, email or other electronic means, it complied with the requirements of s.66(1). It further found that the email was given in accordance with s.494B(5) and s.494D of the Act, as the applicant had nominated an authorised recipient and the email was sent to the last email address of the authorised recipient, which had been provided for the purposes of receiving mail (CB 219).
On 3 October 2007, an application was filed in this Court seeking judicial review of the Tribunal decision of Ms S Pinto (reference number 071512286).
At the commencement of the hearing, Mr Turner for the applicant sought leave to file an amended application. As no objection was raised, leave was granted.
Mr Turner advised the Court that the applications for review before the Tribunal and subsequently this Court do not apply to the primary visa applicant, Ajay Pal Singh Bajwa. The decision relates to whether or not the applicant’s mother, Narinderjit Kaur, and sister, Tania Bajwa, fell within the definition of being within the primary visa applicant’s household as they were not dependent members of his family unit. It was this decision for which review was being sought.
Legislative regime
Section 66 of the Act specifies that if the decision on a visa is made then the applicant must be notified and in a prescribed way:
Notification of decision
(1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.
(2) Notification of a decision to refuse an application for a visa must:
(a) if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa--specify that criterion; and
(b) if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa--specify that provision; and
(c) unless subsection (3) applies to the application--give written reasons (other than non‑disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
(d) if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500--state:
(i) that the decision can be reviewed; and
(ii) the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made.
(3) This subsection applies to an application for a visa if:
(a) the visa is a visa that cannot be granted while the applicant is in the migration zone; and
(b) this Act does not provide, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.
(4) Failure to give notification of a decision does not affect the validity of the decision…
Section 494B of the Act states:
Methods by which Minister gives documents to a person
Coverage of section
(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.
Giving by hand
(2) …
(3) …
(5) Another method consists of the Minister transmitting the document by:
(a) fax; or
(b) e‑mail; or
(c) other electronic means;
to the last fax number, e‑mail address or other electronic address, as the case may be, provided to the Minister by the recipient for the purposes of receiving documents.
When the Minister hands a document by way of an authorised officer
Section 494C(5) of the Act states:
(5) If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, e‑mail or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.
(6) Subsection (5) applies despite section 14 of the Electronic Transactions Act 1999 .
Section 494D of the Act states:
Authorised recipient
(1) If a person (the first person ) gives the Minister written notice of the name and address of another person (the authorised recipient ) authorised by the first person to do things on behalf of the first person that consist of, or include, receiving documents in connection with matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents that the Minister would otherwise have given to the first person.
Note: If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.
(2) If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. However, this does not prevent the Minister giving the first person a copy of the document.
(3) The first person may vary or withdraw the notice under subsection (1) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the first person's authorised recipient.
(4) The Minister may communicate with the first person by means other than giving a document to the first person, provided the Minister gives the authorised recipient notice of the communication.
Regulation 2.16 of the Regulations states:
Notification of decision on visa application
(1) For subsections 66 (1) and 501G (3) of the Act (which deal with giving notice of decisions), this regulation sets out the way of notifying a person of a decision to grant or refuse to grant a visa.
(2)…
(3) The Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act.
Note If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.
Section 338(5) of the Act states:
(5) A decision to refuse to grant a non‑citizen a visa is an MRT‑reviewable decision if:
(a) the visa is a visa that could not be granted while the non‑citizen is in the migration zone; and
(b) the non‑citizen, as required by a criterion for the grant of the visa, was sponsored or nominated by:
(i) an Australian citizen; or
(ii) a company that operates in the migration zone; or
(iii) a partnership that operates in the migration zone; or
(iv) the holder of a permanent visa; or
(v) a New Zealand citizen who holds a special category visa.
Section 347(1) of the Act states:
Application for review by Migration Review Tribunal
(1) An application for review of an MRT‑reviewable decision must:
(a) be made in the approved form; and
(b) be given to the Tribunal within the prescribed period, being a period ending not later than:
(i) if the MRT‑reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)--28 days after the notification of the decision; or
(ii) if the MRT‑reviewable decision is covered by subsection 338(5), (6), (7) or (8)--70 days after the notification of the decision; or
(iii) if the MRT‑reviewable decision is covered by subsection 338(9)--the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision; and
(c) be accompanied by the prescribed fee (if any).
Finally reg.4.10(1) of the Regulations states:
Time for lodgment of applications with Tribunal (Act, s 347)
(1) For paragraph 347 (1) (b) of the Act, the period in which an application for review of an MRT‑reviewable decision must be given to the Tribunal:
(a) …
(b) …
(c) if the MRT‑reviewable decision is mentioned in subsection 338 (5), (6), (7) or (8) of the Act -- starts when the applicant receives notice of the decision and ends at the end of 70 days after the day on which the notice is received; or
(d) …
Grounds of application
Ground one
1. The Tribunal misapplied the law to the facts as found.
Particulars
a) The First Respondent’s Department (the Department) sent the primary decision to the Applicant’s Solicitors by email.
b) The Applicant’s authority to communicate by email was conditional upon the following notation accompanying the authority.
“HARD COPY OF ALL CORRESPONDENCE MUST BE SENT BY MAIL”.
(c) The Migration Act 1958 s.494B provides relevantly
(5) Another method consists of the Minister transmitting the document by:
(a) fax; or
(b) email; or
(c) other electronic means
(d) to the last fax number, email address or other electronic address provided to the Minister by the recipient for the purpose of receiving documents
(d) Where the email address was conditional above, valid service is only affected when the hard copy is also sent.
(e) As no hard copy of the decision was sent, it has not been properly communicated to the visa applicant and the application to the second respondent was, therefore, made within time.
Ground two
2. The First Respondent denied the Applicant procedural fairness.
Particulars
(a) The First Respondent failed to comply with the legitimate expectation it raised with the Applicant.
Applicant’s submissions
Mr Turner referred the Court to the following documents which are relevant to this application:
a)Form 47SK: Application for General Skilled migration to Australia and filed on 28 June 2006, in particular Part P, “Agent consent” and Question 121:
As the agent named on this form, do you agree to the department communicating with you by fax, email or other electronic means? – Yes (CB 8-35)
Next to this question appears the following in bold print:
**(HARD COPY OF ALL CORRESPONDENCE MUST ALSO BE SENT BY MAIL) (CB 31)
b)The same notation appears on the following documents:
i)Form 40: Sponsorship for migration to Australia, Question 28 (CB 38)
ii)Question 62 Part P – Agent’s consent (CB 48)
iii)Form 956: Appointment of a migration agent, Question 15
iv)Migration agent consents to the appointment and communication (CB 55)
v)Form 1221: Additional personal particulars information, Question 13 (CB 85, 92, 98)
A letter of 4 April 2007 sent from the Department to the migration agent and the primary applicant notified him that the visa application made by him had been refused for dependent applicants Tania Bajwa and Narinderjit Kaur with the following explanation:
This decision may be reviewable by the Migration Review Tribunal. The sponsor will have a period of 70 days after you are taken to have been notified of the decision to apply to the Migration Review Tribunal for a review of the decision.
As this decision has been sent to an email address, you will be deemed to have received the letter, and the applicant will have been taken to have been notified of the decision, today. (CB 167)
Mr Turner submits that this is relevant because if there was proper notification of the decision, the decision is deemed to have been received on that day and the time limit for the Tribunal to apply runs from that day. If the decision is sent by post, the time limit allows seven working days before the time to appeal commences. Mr Turner submits that s.66 of the Act specifies that if a decision on a visa is made then that decision must be notified in a prescribed way. Relevantly, s.494B prescribes a way in which a decision can be given to a person and s.494D refers to where an authorised recipient, in this case, the migration agent’s address, is the address for service. Mr Turner acknowledges that if the applicant has an authorised recipient then the Minister must give the document to the authorised recipient rather than the applicant. However, in this matter Mr Turner relies on s.494D(3) which states:
The first person may vary or withdraw the notice under sub-s.1 at any time…
Mr Turner relies on the fact that the notice can be varied. He argues that in the notice in this matter, the address was varied and the agent’s consent notation included the term “must” (CB 31). Mr Turner argues that the term “must” is both in the legislation and the variation that was put on the forms identified at [20(b)] above. Mr Turner acknowledges that the applicant does not contend that the notice was never sent, only that it was only sent by email.
The applicant’s agent lodged an application for review with the Tribunal on 20 June 2007 (CB 172-179). The Tribunal acknowledged receipt on 21 June 2007 (CB 185).
The Tribunal on 9 July 2007 issued an “Invitation to Comment and Provide Further Information” letter on eligibility issue(s), indicating that the application was not eligible because it was not made to the Tribunal within the prescribed time period. It invited comment on the following:
According to reg.4.10, you were required an application for review 70 calendar days after the date that the department notified the visa applicant of its decision. The department made its decision on 4 April 2007 and is taken to have notified the visa applicant of the decision on 4 April 2007. As the department letter was emailed to the visa applicant or authorised recipient, this date is the same day as the date of the department’s notification letter. This means that the last day it could have made an application for review was 13 June 2007. He made the application for review on 20 June 2007.
Mr Turner relied on Australian Postal Corporation v Forgie [2003] FCAFC 223 at [64] per Black CJ, Merkel and Stone JJ:
[64] The broad definition of 'determination' in s60(1) and its application to specific sections is consistent with an intention to give a wide measure of merits review within the field - limited as it is - marked out by the definition. Within that field there would seem to be no occasion to take a narrow view, since to do so would be inconsistent with the beneficial object of legislation for the compensation of employees (see DC Pearce and RS Geddes, Statutory Interpretation in Australia, 5th ed Butterworths, Australia, 2001 at 9.2 - 9.3).
And also at [66]:
[66] Moreover, the beneficial nature of merits review is such that when provisions are made for it within a legislative scheme, it is unlikely that the legislature would have intended that they should be construed in a narrow or technical way since to do so would be inconsistent with the generally beneficial nature of merits review. This is particularly the case where the legislation in question is intended to apply in relation to matters concerning a person's employment in the public sector. As was observed by the then Attorney-General in the second reading speech for the Administrative Appeals Tribunal Bill 1975 (Cth) (Parliamentary Debates Vol H or R 93 (11 February - 6 March 1975) 1186 at 1187):
'The intention of the present Bill is to establish a single independent tribunal with the purpose of dealing with appeals against administrative decisions on as wide a basis as possible’.
Mr Turner argues that the notification of authorised recipient part of the form was varied to prescribe a certain way of notification. Mr Turner contends that this resulted in one of the following:
a)Either that the authorised recipient was to be notified both by email and in writing; or
b)If the Department did not follow the above approach, then the authorisation of that recipient was not a valid authorisation and the decision would have to be given to the applicant at his residential address.
Mr Turner contends that the applicant was not notified in accordance with s.494D as the Minister was required to notify the applicant, not the authorised recipient, by one of the means set out in s.494B.
Mr Turner submits that ground two of the amended application claims that the act of varying the consent and agreement to receive information electronically (as set out in [21] above) clearly put to the decision makers that any electronic communication with the authorised recipient must also be issued by mail.
First respondent’s submissions
Ms Mitchelmore, for the first respondent, contends that s.494D(3) of the Act cannot be interpreted in the manner proposed by Mr Turner, in that the section allows for variation of forms identified at [21] above but qualifies how an authorised recipient is to be notified. Ms Mitchelmore contends that s.494D must be read as a whole and s.494D(3) concerns varying a notice so as to include, withdraw or change the details of an authorised recipient. Ms Mitchelmore argues that s.494D(3) is not about the varying of the notice itself. Section 494D as a whole is concerned with the appointment of a person to receive documents on behalf of an applicant. Section 494D(3) allows an applicant to change the details of the authorised recipient, or to withdraw the notice entirely subject to the qualification that the applicant is not allowed to have more than one authorised recipient. It does not, nor was it envisaged to, give an applicant power to vary the form itself including the terms on which the applicant elects to receive notification from the Department.
Ms Mitchelmore referred to Part G of Form 956 which is about a migration agent’s consent to be appointed and also electronic communication. Question 15 states:
As the migration agent named on this form, do you agree to the department communicating with you by fax, email or other electronic means? (CB 55)
The answer given to this question was “Yes”. Ms Mitchelmore argues that the only effect that the comment can have in the nature of a request to the Department is that the request could also occur. The Department could have, as a matter of courtesy, provided a hard copy as well as email notification. However, when considered in the context of reg.2.16 of the Regulations, the email notification was sufficient and there was no requirement to also send a hard copy.
Ms Mitchelmore submits that the critical question in this matter is when the time period commences, which is dealt with in s.347 of the Act. In s.338(5), an application for review of a Migration Review Tribunal reviewable decision must be lodged within a period that commences from when the applicant receives notice of the decision and ends 70 days after the notice is received. In this case the decision was given on 4 April 2007 in accordance with s.66(1) of the Act and reg.2.16 of the Regulations. That notification also complied with the requirements of s.494B and s.494D of the Act. As a result, the time period started to run in accordance with s.437 and reg.4.10 and accordingly it ended on 13 June 2007.
Ms Mitchelmore submits that the Tribunal was correct to hold that the application was lodged out of time and that it had no jurisdiction to entertain the application. She argues that the circumstances in this matter are to be distinguished from those in Forgie which dealt with whether the Administrative Appeals Tribunal (AAT) had jurisdiction to review the application of the Australian Postal Corporation under the Safety, Rehabilitation and Compensation Act 1988 (Cth). In finding that the AAT did have jurisdiction, the Full Federal Court referred to the uncontroversial proposition that provisions for merits review in legislation should not be construed in a narrow and technical way: Forgie at [66]. Ms Mitchelmore submits that s.347 and reg.4.10 impose time limits for seeking merits review and are clear in their terms. In the context of those provisions the Tribunal does not have the power to extend the time limit for applications filed outside the time period specified s.347.
Consideration
The Court in this matter is being invited by the applicant to entertain two interpretations of the Act and Regulations to find that the Tribunal in this case had no jurisdiction to review the delegate’s decision because the application was received by the Tribunal outside the statutory time limits. The bases of that invitation are that:
a)The contents of the prescribed forms can be varied;
b)The provisions for an application for a merits review should not be construed in a narrow and technical way.
The Act clearly imposes an obligation on the Minister to provide certain documents to a party making a visa application, however, that party may nominate one of three different methods of notification. The obligation is established in s.494B:
Methods by which Minister gives documents to a person
Coverage of section
(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.
Giving by hand
(2) One method consists of the Minister (including by way of an authorised officer) handing the document to the recipient.
Handing to a person at last residential or business address
(3) Another method consists of the Minister (including by way of an authorised officer) handing the document to another person who:
(a) is at the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; and
(b) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(c) appears to be at least 16 years of age.
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.
Transmission by fax, e‑mail or other electronic means
(5) Another method consists of the Minister transmitting the document by:
(a) fax; or
(b) e‑mail; or
(c) other electronic means;
to the last fax number, e‑mail address or other electronic address, as the case may be, provided to the Minister by the recipient for the purposes of receiving documents.
When the Minister hands a document by way of an authorised officer
(6) For the purposes of sections 494C and 494D, a reference in those sections to an act of the Minister includes, if the act is of a kind referred to in subsection (2) or (3) of this section, a reference to an act of the Minister by way of an authorised officer. (emphasis added)
Subject to the context in which it appears, the use of the word “must” is taken prima facie to impose an obligation to exercise a function: Grunwick Processing Laboratories Ltd v Advisory, Conciliation and Arbitration Services [1978] AC 655 at 690 and 698. The phrase “must do so…” in s.494B(1)(b) does not contain any permissive words to indicate an intention that the power is discretionary. If the purpose or objective of the Act would be defeated if a task were not carried out, then a provision of that Act is obligatory rather than mandatory. The purpose of s.494B is to ensure that recipients are provided with documents by the Minister in accordance with one of three clearly specified procedures. Each of these methods has significant and unique consequences and the three methods are not substitutable.
In circumstances where the Act does not specifically require the Minister to give a document by one of the methods specified in s.494B, the Minister is obliged under s.494A to adopt the following method:
Giving documents by Minister where no requirement to do so by section 494B method
If:
(a) a provision of this Act or the regulations requires or permits the Minister to give a document to a person; and
(b) the provision does not state that the document must be given:
(i) by one of the methods specified in section 494B; or
(ii) by a method prescribed for the purposes of giving documents to a person in immigration detention;
the Minister may give the document to the person by any method that he or she considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section).
Although an applicant can elect which method to adopt, this is restricted to one of the methods in s.494B. The election is made on the relevant forms approved by the Minister and available in paper or on the Department’s website.
The scheme in the Act which sets out the process for election of notification commences in s.45 of the Act, “Subject to this Act and the regulations, a non-citizen who wants a visa must apply for a visa of a particular class”. This section should be read in conjunction with reg.2.07 of the Regulations:
Application for visa -- general
(1) For the purposes of sections 45 and 46 of the Act (dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1:
(a)the approved form (if any) to be completed by an applicant;
(b) the visa application charge (if any) payable in relation to an application;
(c) other matters relating to the application.
(3) An applicant must complete an approved form in accordance with any directions on it.
(4)…
Regulation 2.07 requires substantial not strict compliance with the directions on the form: Bal v Minister for Immigration & Multicultural Affairs (2002) 189 ALR 566. See also s.25C of the Acts Interpretation Act1901 (Cth):
Compliance with forms
Where an Act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient.
Section 495 of the Act states:
Minister may approve forms
The Minister may, in writing, approve a form for the purposes of a provision of this Act in which the expression "approved form" is used.
Regulation 1.18 states:
Approved forms
(1) The Minister may, in writing, approve forms for:
(a) use in making an application for a visa; or
(b) any other purpose authorised or required by these Regulations.
(2) Each of the following is an approved form for use in making an application for a visa:
(a) a paper form;
(b) a set of questions in an interactive computer program that is:
(i) approved by the Minister for use in making an application for the visa; and
(ii) made available at an Internet site operated under the authority of the Minister.
The approved forms that are relevant in this matter are:
i)Form 40 – (Design date 11/05) –
Part E – Your details, Question 28
Part P – Agent consent, Question 62
ii)Form 47SK – (Design date 03/06)
Part E – Applicant’s details, question 22
Part P – Agent Consent, question 121
iii)Form 956 – (Design date 03/06)
Part G – Migration agent consent for appointment and electronic communication
Question 15
iv)Form 1221 – (Design date 07/05)
Part A – Your details – question 13
The relevant question on each form is expressed in the same terms:
Do you agree to the department communicating with you by fax, email or other electronic means?
No
Yes Give details
Fax number:
Email address:
Each form has the “Yes” box marked with an “X”, together with a fax number and email address included. In parts where the agent’s consent is required a signature appears with the relevant date. Consequently, on each form that this question arises, the entry substantially complies with the requirement of the question asked. This satisfies s.494B(5) of the Act. The correspondence in the Court Book indicates that the notification letter forwarded on 4 April 2007 by the Department to the applicant’s agent, Mr David Bitel of Parish Patience Immigration, was by email. There is no evidence before the Court that the correspondence of that date was not received by the recipient. Nor is there evidence that a hard copy was sent by registered mail. There is no dispute that the email notification was not forwarded or received by that method on that date. In the circumstances, I am satisfied that the requirements under the Act, requiring the Minister to provide certain documents to a party making a visa application, have been complied with.
The effect of that valid notification is that all subsequent events and time limits are dependent on that notification date. Consequently, the date of notification was 4 April 2007 (s.494C(5)) with the application for review to the Tribunal being 70 days (s.347(1)(b)(iii) and reg.4.10(1)(c)) which expires on 13 June 2007. As the application for review was not received until 20 June 2007 the Tribunal correctly found that it did not have jurisdiction.
An application for a review by the Tribunal must be made in the approved form (s.347(1)(a)). Mr Turner drew my attention to s.494D(3) which states that an authorised recipient may be changed at any time by following the procedure set out in the Act, provided that there can only ever be one recipient at any particular time. There is no provision for two or more recipients. I am not satisfied that this provision is intended to empower applicants to amend the approved form issued by the Minister under the Act and the Regulations. The Court has not been assisted by the applicant on this front nor have I found any authority supporting this contention. Consequently, this argument cannot be sustained.
Finally, I have been requested to exercise my discretion and interpret the Act in a manner beneficial to the applicant. However, I agree with Ms Mitchelmore that the case of Forgie should be distinguished from this matter. Section 347 and reg.4.10 impose strict time limits for the lodging of an application for merits review. I do not believe that on a fair reading of Forgie, I should apply my discretion in interpreting the Act and Regulations on the imposition of time limits for filing a review.
Conclusion
I am satisfied that the Tribunal has applied the Act and Regulations correctly and that the Tribunal had no jurisdiction to review the delegate’s decision. Consequently, the application should be dismissed with costs.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 4 July 2008
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