Candra v Minister for Immigration
[2009] FMCA 526
•10 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CANDRA & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 526 |
| MIGRATION – Migration Review Tribunal – notification of refusal decision by email – note on form that a refusal would be sent by mail – construction of statutory provisions – validity of notification of refusal – migration agent authorised communication by email. |
| Migration Act 1958 (Cth), ss.52, 54, 66, 494B, 494C, 494D, 495 Migration Regulations 1994 (Cth), regs.1.18, 2.07, 2.16(3), Item 1128CA of Sch. 1 |
| Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 308 Federal Commissioner of Taxation v Wade (1951) 84 CLR 105 Jalagam v Minister for Immigration and Citizenship and Anor [2008] FMCA 1417 |
| First Applicant: | DARMAWAN TAUPIN CANDRA |
| Second Applicant: | NAOMI CANDRA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1497 of 2008 |
| Judgment of: | Riley FM |
| Hearing date: | 28 April 2009 |
| Date of Last Submission: | 28 April 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 10 June 2009 |
REPRESENTATION
| Counsel for the Applicant: | Guy Gilbert |
| Solicitors for the Applicant: | Clothier Anderson & Associates |
| Counsel for the Respondents: | Richard Knowles |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application filed on 8 December 2008 and amended on 3 February 2009 be dismissed.
The applicant pay the first respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1497 of 2008
| DARMAWAN TAUPIN CANDRA |
First Applicant
| NAOMI CANDRA |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision of the Migration Review Tribunal handed down on 12 November 2008. The Tribunal held in that decision that it did not have jurisdiction to review the refusal by the delegate of the applicants’ application for a skilled-independent overseas student residence (class DD) visa. The Tribunal considered that it did not have jurisdiction because the application for review was filed out of time.
A copy of the delegate’s decision was emailed to the applicants’ migration agent on 30 July 2008. If that email constituted valid notification of the delegate’s decision, the applicants had to file their application for review by 20 August 2008. In fact, they filed their application on 21 August 2008. However, the applicants argued that the notification was not valid, and they have never otherwise been properly notified of the delegate’s decision. Accordingly, the applicants argued, time has not begun to run.
The applicants argued that the email notification was not a valid notification because the visa application form completed by the applicants included the statement that:
Note: If this visa application is refused, you will be notified by mail
That note appears under Question 22, which asks:
Do you agree to DIMIA communicating with you by fax or e-mail?
The applicants responded affirmatively and gave their migration agent’s fax number and email address. However, the applicants argued that, because of the note on the visa application form, the delegate could not validly notify the applicants of a refusal decision by email, but could only validly notify the applicants of a refusal decision by mail.
The applicants did not suggest that there was any error on the delegate’s part in sending the notification to their migration agent, who was their authorised recipient. The applicants did not argue that the Tribunal had any power to review a decision that was filed out of time and did not argue that the Tribunal had any power to extend time.
The applicants in their written submissions said that:
It was a clear term of the agreement between the applicant and the Department that any refusal would be sent by mail.
However, at the hearing before this court, after receipt of the first respondent’s written submissions, the applicants expressly resiled from that claim. They said that their case was not based on contract and did not rely on any notion of estoppel.
Rather, the applicants argued that their claim was based on statutory interpretation. The applicants noted that s.494B of the Migration Act 1958 (“the Act”) provides that:
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.
(1A) …
(1B) …
Giving by hand
(2) …..
Handing to a person at last residential or business address
(3) ….
Dispatch by prepaid post or by other prepaid means
(4)Another method consists of the Minister dating the document, and then dispatching it:
(a)…
(b)…
(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) …
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:
(d)the last fax number, e‑mail address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents; or
(e)…
The applicants acknowledged that s.494C(5) of the Act provides that:
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.
However, the applicants argued that s.494B(5)(d) of the Act only permitted the Minister to transmit a document by email to an email address “provided to the Minister for the purposes of receiving documents”. The applicants argued that they had not provided their migration agent’s email address for the purpose of receiving a document containing a refusal decision. They argued that they had provided their migration agent’s mailing address for the purpose of receiving a refusal decision, so the document containing the refusal decision should have been mailed to them under s.494B(4) of the Act.
It was common ground that the Tribunal made a factual error in coming to the conclusion that it had no jurisdiction.[1] However, notwithstanding that factual error, the first respondent argued that the Tribunal did not have jurisdiction for reasons other than those relied on by the Tribunal. There was no dispute that it is for the court to decide whether the Tribunal did in fact have jurisdiction, irrespective of the Tribunal’s own reasoning process.[2]
[1] The Tribunal mistakenly thought that a bridging visa application was not filed in Adelaide when in fact it was.
[2] Jalagam v Minister for Immigration and Citizenship and Anor [2008] FMCA 1417 at [9].
The applicant did not argue that, in interpreting s.494B(5)(d) of the Act, the court should explore the applicants’ actual, subjective intentions in providing to the Minister an address for the purposes of receiving documents. Indeed, the applicants did not provide any evidence of their actual, subjective intentions. Rather, the case proceeded on the basis that it was a matter for the court to ascertain, in the light of the words on the form and the applicable legislation, whether the applicants had provided their migration agent’s email address to the Minister for the purposes of receiving documents, including a refusal decision.
The first respondent argued that the provisions of the Act override any statement in a form, and the notice of the refusal decision was valid because it was given in accordance with the Act, particularly s.494B(5) of the Act.
Other questions and answers regarding email
At Question 66 on the visa application form, concerning the skill matching scheme, the primary applicant was again asked:
Do you agree to DIMIA communicating with you by fax or e-mail?
The primary applicant responded affirmatively and again gave his migration agent’s fax number and email address. There is no note under Question 66, but there is a declaration at Question 79, where the primary applicant said that he consented to details on the form being circulated to employers and others and said that he understood the purpose of the information he had provided on the form.
At Question 101, the visa application form stated:
All written communications about this application should be sent to: (Tick one box only).
The applicants ticked the box marked migration agent and were instructed to go to Part O. Part O, in Question 106, said:
Provide the details requested below about the migration agent who is authorised to act on your behalf and receive all written communications about this application.
The applicants provided their migration agent’s details. The migration agent was then asked, in Question 107:
As the migration agent named on this form, do you agree to DIMIA communicating with you by facsimile, e-mail or other electronic means?
The agent responded affirmatively and gave his details. The visa application form then stated, in Question 108:
I understand and accept that I am the person appointed by the applicant to receive all written communications and act as his/her migration agent.
The migration agent then signed and dated a box under Question 108.
In a separate form, headed Appointment of a Migration Agent, but apparently included with the original application, the applicants said at Question 3 that they wanted to advise DIMIA that they had appointed a migration agent. At Question 4, the migration agent form stated:
My Migration agent … is authorised to act on my behalf and receive written communication (as permitted by law) in relation to:
(tick one box only)
The applicants then ticked the box stating “all matters”. The migration agent form said, next to that box:
Give details of the most recent application (eg student visa, employer sponsored migration, protection vis, etc)
The applicants did not provide any details in response to that request.
The migration agent form then said, at Question 14:
As the migration agent named… on this form, do you agree to DIMIA communicating with you by facsimile, e-mail or other electronic means?
The migration agent ticked the yes box, gave his facsimile number and email address and signed the form.
Instructions on the form
The applicants sought to put before the court a copy of the instructions for completing the visa application form. Those instructions were not available at the time of the hearing, but were provided later. The first respondent said that the instructions were irrelevant, because they could not assist with the proper interpretation of the Act, but otherwise did not oppose the court receiving them. The instructions have been marked as Exhibit 1. The parties were invited to make any written submissions that they wished on the effect of the instructions. However, neither party has done so.
The instructions say at page 3 that an applicant may authorise another person to receive all written communications about the application. At page 4, the instructions say that:
DIMIA may use a range of means to communicate with you. However, electronic means such as fax or e-mail will only be used if you indicate your agreement to receiving communication in this way.
Otherwise, the instructions do not appear to contain any information that has any bearing on the question in issue.
Provisions concerning communications
Section 52 of the Act states:
52Communication with Minister
(1)A visa applicant or interested person must communicate with the Minister in the prescribed way.
(2)The regulations may prescribe different ways of communicating and specify the circumstances when communication is to be in a particular way. For this purpose, a way of communicating includes any associated process for authenticating identity.
(3)If the applicant or interested person purports to communicate anything to the Minister in a way that is not the prescribed way, the communication is taken not to have been received unless the Minister in fact receives it.
(3A)A visa applicant must tell the Minister the address at which the applicant intends to live while the application is being dealt with.
(3B)If the applicant proposes to change the address at which he or she intends to live for a period of 14 days or more, the applicant must tell the Minister the address and the period of proposed residence.
(3C)If, in accordance with the regulations, 2 or more non‑citizens apply for visas together, notifications given to any of them about the application are taken to be given to each of them.
Note 1: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.
Note 2:Section 494D deals with giving documents to a person’s authorised recipient.
(4)In this section, interested person means a person who wants, or who is requested, to give information about the applicant to the Minister.
Section 66(1) of the Act states:
66 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.
Section 494B of the Act states:
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.
(1A)….
(1B)….
Giving by hand
(2)….
Handing to a person at last residential or business address
(3)….
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.
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:
(d)the last fax number, e‑mail address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents; or
(e)if the recipient is a minor—the last fax number, e‑mail address or other electronic address, as the case may be, for a carer of the minor that is known by the Minister.
Section 494C of the Act states:
494C When a person is taken to have received a document from the Minister
(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).
Giving by hand
(2)….
Handing to a person at last residential or business address
(3)….
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.
Transmission by fax, e‑mail or other electronic means
(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. …
Section 494D of the Act states:
494D 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. …
Regulation 2.16(3) of the Migration Regulations 1994
(“the Regulations”) states:
Refusal to grant visa
(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.
Provisions concerning forms
Section 45 of the Act provides that a non-citizen who wants a visa must apply for a visa of a particular class. Section 46 of the Act provides that a visa application is valid only if, among other things, it is for a visa of a class specified in the application. Regulation 2.07 provides that, for the purposes of s.45 and s.46, if an application is required for a particular class of visa, the approved form to be completed by the applicant is set out in Schedule 1. Section 495 of the Act provides that the Minister may approve a form for the purposes of a provision of the Act in which the expression “approved form” is used. Regulation 1.18 provides that the Minister may approve forms for use in making an application for a visa. Item 1128CA of Schedule 1 of the Regulations provides that the form for a skilled independent overseas student residence (class DD) visa is a form 47SK.
Provisions concerning consideration of visa applications
Subsections 54(1) and (2) of the Act provide that:
(1)The Minister must, in deciding whether to grant or refused to grant a visa, have regard to all of the information in the application.
(2)For the purposes of subsection (1), information is in an application if the information is:
(a) set out in the application….
Section 65 of the Act provides that, after considering a valid application for a visa, the Minister is to grant the visa if satisfied of certain things and is to refuse to grant the visa if not so satisfied.
Ground of review
At the hearing, the applicants abandoned ground 2 set out in the amended application filed on 3 February 2009. The first ground of review, and the only remaining ground of review, as set out in the amended application filed on 3 February 2009, is:
1.The Tribunal erred when it found that it did not have jurisdiction to hear and determine the applicants’ Application for Review:
PARTICULARS
(a)The Tribunal misinterpreted and/or misapplied the notification provisions in s. 494 of the Migration Act 1958 in treating s. 494B(5) as the operative subsection;
(b)The Tribunal failed to consider the limitation on the s. 494B methods of notification by reason of the note to question 22 of the Application for general skilled migration to Australia:
Do you agree to DIMIA communicating with you by fax or email?
Yes
…
Note: If this visa application is refused, you will be notified by mail.
(c)The Tribunal failed to ask itself the correct question, namely, whether it was open to the primary decision-maker to notify the applicants of the decision to refuse the application by email, particularly when an earlier refusal letter, dated
12 January 2007, had been sent by registered post.
Consideration
The applicants did not argue that the fact that an earlier refusal letter was sent by post created any legal rights or legitimate expectations. The applicants did not articulate any basis upon which the sending of the earlier refusal letter by post had any bearing on the validity of the notification by email of the refusal presently under consideration. I am unable to discern any basis upon which it might be said that the sending of the earlier refusal letter by post has any relevance to the issues presently under consideration.
The applicants argued that notification of refusal decisions was an area “where extreme technicality reigns” because the consequences are so serious. The applicants relied by analogy on Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 308 at [54].That case provides an example of circumstances where the court was satisfied that there was non-compliance with the relevant provisions and the notification was held to be invalid. The particular non-compliance in ChanTaSrey is quite different to the alleged non-compliance in the present case. Chan Ta Srey, for present purposes, serves as no more than an example of a way in which notification may be found to be invalid.
Reference was made to s.54 of the Act which provides that, in deciding whether to grant or refuse to grant a visa, the Minister must have regard to all of the information in the application. The applicants appeared to argue that s.54 requires the Minister to have regard to the information consisting of the note following question 22 in the visa application form. The note said that if the visa application was refused the applicants would be notified by mail. Section 54 does not concern notification of decisions. It only concerns the consideration of whether to grant or refuse to grant a visa. The information, if it can be so described, in the note following question 22 had no bearing on whether to grant or refuse to grant a visa. Section 54 does not assist the applicants.
The applicants were asked at question 22 of the visa application form whether they agreed to DIMIA communicating with them by fax or email. They responded affirmatively. A note following question 22 said that, if the visa application is refused, the applicants will be notified by mail. The applicants argued that, by force of the note, the idea of “communicating” in question 22 must be read down so as to not include notification of a refusal decision. The applicants argued that notification of a refusal decision has a special significance in migration decisions and notification has a special significance in the Act. The applicants relied on the definitions in the New Shorter Oxford Dictionary of “communication” and “notify”. The applicants argued that the consequence of the note on the visa application form is that all communication, other than notification of a refusal, may be made by email.
In my view, as a matter of ordinary English usage, communication is a broader concept than notification. A notification is one form of communication. Accordingly, authority to communicate in a particular way includes authority to notify in a particular way, subject to any other overriding considerations.
Section 66 of the Act requires the Minister to notify an applicant of a decision to grant or refuse to grant a visa in the prescribed way. Regulation 2.16(3) requires the Minister to notify an applicant of a refusal to grant a visa by one of the methods specified in s.494B of the Act. That section, which is set out above, specifies various methods including mail and email. Section 494B of the Act authorises the Minister to give a document by sending it to the last email address provided to the Minister for the purposes of receiving documents.
Although notification of a refusal decision is a very significant matter under the Act, s.494B of the Act does not use the word notify. Moreover, s.494B of the Act does not distinguish between notifications of refusals and any other sort of document. That section speaks only of giving documents and receiving documents.
On the other hand, the note following question 22 on the visa application form did make a distinction between notifications of refusals and other documents. However, the note following question 22 on the visa application form does not have any statutory force. The applicants were unable to take the court to any particular section of the Act or any regulation which gave any statutory force to the note following question 22 or which reflected the import of the note following question 22.
The applicants expressly disavowed any reliance on any argument based on estoppel. They were right to do so. There may be scope for an estoppel argument where the Commonwealth has entered into a contract or where a Commonwealth officer is exercising a discretion. However, where the Parliament, within the Constitution, has provided in legislation that a particular circumstance has a particular consequence, nothing a public servant does can override the legislation. This principle is fundamental to the rule of law. It was expressed succinctly by Kitto J in Federal Commissioner of Taxation v Wade (1951) 84 CLR 105 at 117 where his Honour said:
No conduct on the part of the commissioner could operate as an estoppel against the operation of the Act….
Section 494D of the Act provides that:
494D 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.
The applicants appointed an authorised recipient for the purposes of, among other things, “receiving documents in connection with matters arising under this Act”. Consequently, the Minister was required by s.494D of the Act to give the migration agent any document, such as a notification of a visa refusal, that the Minister would otherwise have given to the applicants. Under s.494B(5) of the Act, the Minister was authorised to give a document to the migration agent, and thus to the applicants, by transmitting the document by email to the last email address provided to the Minister for the purposes of receiving documents.
At question 106 of the visa application form, the applicants said that their migration agent was authorised “to receive all written communications about this application”. At question 108, the migration agent said that he understood that he was appointed “to receive all written communications” as the applicants’ migration agent.
In the form for the appointment of the migration agent, the applicants again said that their migration agent was authorised to “receive written communication (as permitted by law) in relation to … all matters”. In the form for the appointment of the migration agent, at question 14, the agent was asked if he agreed to DIMIA communicating with him by email. He said yes and gave his email address.
It is clear from these answers that the applicants authorised their migration agent to receive on their behalf all written communications, including notification of a refusal decision. It is also clear that the migration agent authorised the Minister to communicate with him by email. In terms of s.494B of the Act, the applicants provided to the Minister their migration agent’s email address for the purposes of receiving documents.
There is no principle of statutory construction whereby “documents” in s.494B(5)(d) could be taken as meaning “all documents other than notification of a refusal decision.” On a fair reading of the visa application form and the appointment of a migration agent form, the migration agent’s email address was provided to the Minister for the purposes of receiving all documents, including a notification of a visa refusal.
Accordingly, the applicants were validly notified of the refusal decision on 30 July 2008 by email. The application to the Tribunal was out of time. The Tribunal correctly found that it had no jurisdiction. Therefore, the application must be dismissed with costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Ashika Kanhai
Date: 10 June 2009
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