Chen v Minister for Immigration
[2013] FCCA 892
•24 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHEN & ORS v MINISTER FOR IMMIGRATION | [2013] FCCA 892 |
| Catchwords: MIGRATION – Application for review of decision of Minister’s delegate – whether application for visa was validly made at an office of Immigration in Australia – PO Box not an office of Immigration – application for visa not validly made by requisite date – no jurisdictional error – application to the Court dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.46, 47, 312, 476 |
| Nairv Minister for Immigration [2001] FCA 249; (2001) 107 FCR 60 Pomare v Minister for Immigration and Citizenship [2008] FCA 458 Minister for Immigration & Multicultural Affairs v Li [2000] FCA 1456 Zhan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 327 |
| First Applicant: | JIESUI CHEN |
| Second Applicant: | KANDAN WEN |
| Third Applicant: | ZHIWEI WEN |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 135 of 2013 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 18 June 2013 |
| Date of Last Submission: | 18 June 2013 |
| Delivered at: | Sydney |
| Delivered on: | 24 July 2013 |
REPRESENTATION
| Counsel for the Applicants: | Mr N Poynder |
| Solicitors for the Applicants: | Maxim Legal Pty Ltd |
| Counsel for the Respondent: | Mr M Smith |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application made on 24 January 2013 is dismissed.
The first and second named applicants pay the respondent’s costs set in the amount of $6,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 135 of 2013
| JIESUI CHEN |
First Applicant
| KANDAN WEN |
Second Applicant
| ZHIWEI WEN |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
This is an application made on 24 January 2013, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking relief in relation to a determination made by an officer of the then Department of Immigration and Citizenship (“the Minister’s department”) that the application for a “subclass 892” visa was not valid.
The first named applicant in this matter, Ms Jiesui Chen, was the “primary” visa applicant (“the applicant”). The second and third named applicants, her husband and their child, applied as members of her family unit (“the applicant’s husband” and “the applicant’s child” respectively).
At the hearing of this application, Mr N Poynder of counsel appeared for the applicants. Mr M Smith of counsel appeared for the Minister.
The following was taken into evidence for the applicants:
1)The affidavit of Ian Seymour Singer, a registered migration agent, made on 11 June 2013 (except for [7] – [9], no objection to the remainder).
2)The affidavit of Geoffrey Dawson Jordan, Australia Post manager of the Adelaide City Delivery Centre, made on 6 June 2013 (no objection).
3)The affidavit of Hildren Keller, a migration agent assistant, made on 11 June 2013 (no objection).
For the Minister, the affidavit of Margaret Smith, employee of “Converga”, made on 21 May 2013 (no objection), was taken into evidence.
In both their written and oral submissions the applicants helpfully set out the facts. The written submissions provide substantial and relevant background ([3] of the applicants’ written submissions):
“(a) The applicant was the holder of a subclass 163 visa which a Business Skills (Provisional) (Class UR) visa.
(b)The applicant’s subclass 163 visa was due to expire on 18 December 2012.
(c) The applicant wished to apply for a subclass 892 State/Territory Sponsored Business Owner visa.
(d) Pursuant to Schedule 1 to the Migration Regulations 1994 (the regulations) it is a requirement for an applicant seeking to satisfy the primary criteria for a subclass 892 visa that he or she hold a Business Skills (Provisional) (Class UR) visa.
(e) According to information provided by the respondent in its Business Skills Entry information booklet and website, an application for a subclass 892 visa could be made by post to the Adelaide Onshore Business Skills Processing Centre at GPO Box 2399 Adelaide SA 5001.
(f) The respondent leases GPO Box 2399 at the Adelaide City Delivery Centre, Ground Floor, 26 Franklin Street Adelaide South Australia.
(g) The respondent contracts with Converga for the provision of mail and distribution services for the Adelaide Onshore Business Skills Processing Centre.
(h) Converga in turn contracts with Capital Transport to collect mail from Australia Post and deliver it to the respondent’s Adelaide office.
(i) Capital transport usually collects the mail from the respondent’s GPO Box 2399 and delivers it to the respondent’s Adelaide office at around 8.00am each working day. Once the mail has been delivered to the Adelaide office a record is made of incoming postal items then the items are delivered to various sections of the respondent’s Adelaide office between approximately 10.30am and 11.00am on the day the mail was delivered.
(j) At approximately 5.50pm on 17 December 2012 an employee of the applicant’s migration agent placed an Express Post bag in an Express Post Box outside the Chatswood Post office, 45 Victor Street, Chatswood New South Wales.
(k) The Express Post bag was addressed to the Adelaide Onshore Business Skills Processing Centre at GPO Box 2399 Adelaide SA 5001.
(l) The Express Post bag contained a letter from the applicant’s migration agent and the application forms and related documents for a subclass 892 visa.
(m) The Express Post bag containing the applicant’s application documents arrived at the Adelaide City Delivery Centre some time prior to 10:57:51am on 18 December 2012.
(n) By the time the Express Post bag containing the applicant’s application documents arrived at the Adelaide City Delivery Centre Capital Transport had completed its collection of mail from the respondent’s GPO Box 2399.
(o) The Express Post bag containing the applicant’s application documents was collected by Capital Transport from the respondent’s GPO Box 2399 at the Adelaide City Delivery Centre and delivered to the respondent’s Adelaide office on 19 December 2012.
(p) By the time the applicant’s application was received at the respondent’s Adelaide office on 19 December 2012 her subclass 163 visa had expired.”
[Footnotes and emphasis omitted.]
To that can be added that, on 21 December 2012, the applicants were informed that the application was not valid because the applicant did not satisfy cl.1104B(3)(f) of Sch.1 to the Migration Regulations 1994 (Cth) (“the Regulations”). That is, the application for the relevant visa was not received “at an office of Immigration in Australia until 19 December 2012 by which time the applicant was no longer the holder of a subclass 163 visa”.
The issue in the current proceedings turns on whether delivery of the application for the subclass 892 on 18 December 2012 to a post office box (“PO Box”) used by the Minister’s department in Adelaide, meant that the application was validly made because it was received by the Minister’s department within time.
The Minister said that such an application can only be validly made “at an office of Immigration in Australia.” The Minister said the PO Box was not such an office, or a part of such an office. For the reasons that follow, I agree with the Minister.
There was no dispute between the parties on the fact that the relevant application for the visa must have been made on, or before, 18 December 2012. Nor was there any dispute that the relevant application was appropriately addressed, on behalf of the applicant, sent and received at the relevant postal centre and placed in “the Minister’s PO Box” on 18 December 2012. The application was “collected” the next day by a person contracted by the Minister’s department for that purpose (19 December 2012), and received at the Minister’s Adelaide office on that day (an “office of Immigration in Australia”).
Relevant Legislation: The Matter of the Validity of an Application for a Visa
Section 46 of the Act, relevantly, provides as follows:
“Valid visa application
(1) Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:
…
(b) it satisfies the criteria and requirements prescribed under this section; and
…
…
(3) The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.
(4) Without limiting subsection (3), the regulations may also prescribe:
(a) the circumstances that must exist for an application for a visa of a specified class to be a valid application; and
(b) how an application for a visa of a specified class must be made; and
(c) where an application for a visa of a specified class must be made; and
(d) where an applicant must be when an application for a visa of a specified class is made.”
Section 47 relevantly provides:
“Consideration of valid visa application
(1) The Minister is to consider a valid application for a visa.
…
(3) To avoid doubt, the Minister is not to consider an application that is not a valid application.
…”
The Regulations provide, at r.2.07(1):
“(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.”
Clause 1104 of Sch.1 to the regulations prescribes the requirements for the making of a valid application for the visa relevant in this case (that is, a subclass 892 visa) (note the link between r.2.07(1)(c) and cl.1104B(3)(f)). Relevantly cl.1104B(3)(a) and (f) are as follows:
“(3) Other:
(a) Application must be made in Australia, but not in immigration clearance.
…
(f) For an applicant seeking to satisfy the primary criteria for the grant of a Subclass 892 (State/Territory Sponsored Business Owner) visa, applicant must hold a visa of a subclass included in Business Skills (Provisional) (Class UR), granted on the basis that the applicant, or the spouse or de facto partner of the applicant (if any), or the former spouse or former de facto partner of the applicant, satisfied the primary criteria for the grant of the visa.”
Regulation 2.10(2A)(b), provides for where the application for the subclass 892 visa must be made:
“(2A) If an application for a visa is made in Australia, the application must be made:
(a) in accordance with any requirements in:
(i) this Division; or
(ii) the item in Schedule 1 that relates to the visa;
about where to make the application; or
(b) if there are no requirements of that kind--at an office of Immigration in Australia.”
[Emphasis added.]
Consideration
In essence, the applicants’ argument was that the PO Box (at which the application was delivered “within time”) should be seen, in the circumstances, as satisfying the requirement that the application must be made at an office of the Minister’s department in Australia for it to be validly made.
The applicants rely on a number of arguments for that proposition. None of these arguments, as was readily conceded by the applicants, have a direct basis in any authority. Nonetheless, in the applicants’ submissions there are some authorities that provide some guidance to the resolution of the hitherto “unconsidered circumstances” presented by this case.
The applicants referred to extracts from a Department “booklet” publicly available on the Department’s website (annexure “C” to Mr Singer’s affidavit). Mr Singer, who assisted the applicant in her application for the visa, gave evidence that he was aware of the “Department’s Business Skills Entry Booklet 7” (see [4] of his affidavit).
The following extract was of particular note (annexure “C” to Mr Singer’s affidavit)
“If you are applying in Australia
All applications for Business Skills (Residence) visas must be made in Australia. If you are applying in Australia for a Business Talent visa, please lodge your application at Perth Business Skills Processing Centre (details on the previous page). If you are applying in Australia for a Business Skills (Residence) visa, you must send your application to the Adelaide Onshore Business Skills Processing Centre.
By mail:
Adelaide
Onshore Business Skills Processing Centre
Department of Immigration and Citizenship
GPO Box 2399
ADELAIDE SA 5001
By courier:
Adelaide
Onshore Business Skills Processing Centre
Department of Immigration and Citizenship
Level 3
55 Currie Street
ADELAIDE SA 5000”The applicants’ argument was that the information provided by the Minister’s department to prospective applicants directs applicants to post their applications to the nominated PO Box. They relied on Nairv Minister for Immigration [2001] FCA 249; (2001) 107 FCR 60 (“Nair”) per Sackville, Healy and Stone JJ for the argument that, in this case, there was a “requirement” on the applicant to make an application at an office of the Department in Australia. In Nair (a case dealing with the deregistration of a migration agent) there was “similarly” a “requirement” for that migration agent to “provide the [Migration Agents Registration] Board” with certain information pursuant to, the now repealed, s.312(2) of the Act.
The applicant drew attention to Nair at [44]:
“For the reasons we have given, the statutory context suggests that, for the purposes of s 302(1)(b) of the Migration Act, a renewal fee is paid to the Commonwealth if it is sent to the Board in the manner specified in the notification given by the Board in accordance with s 301. In the present case, the notification given by the Board to the appellant nominated only one method of providing the estimate required by s 312(2)(c) and of paying the renewal fee required by s 302(1)(b). All correspondence and any fee payable were to be directed to the Board at its post office box number in Canberra. Cheques were to be made payable to the Board. Not only was no alternative suggested, but no address was given for the Board other than its box office number.”
The argument was that in Nair, as in this case, there was a “requirement” emanating from the Board (in the current case, the Department) that “all correspondence…should be directed to…” a particular PO Box address (see Nair at [15]). In that case, the migration agent complied with that requirement. That is, he sent correspondence to the PO Box by the one method nominated for that purpose. That is, the only method nominated by the Board. The applicants seeks to draw an analogy between Nair and the current circumstances by arguing that the applicant (through her representatives) followed the necessary instructions and sent the application to the PO Box provided.
However, the current circumstances are, in my view, immediately distinguishable from the circumstances in Nair. In that case, there was one, and only one, way in which the correspondence could be sent. That was, by post directed to the PO Box. Further, as was made clear in Nair, that “requirement” was read in light of the relevant “statutory context” (at [44] of Nair).
In the current case, I do not agree with any reading of the relevant “requirement” (the “booklet” on the website) that asserts that the applicant was “required” to send, by mail to a PO Box, and that that would constitute delivery to an Immigration office in Australia.
The “requirement” in the “booklet” was that the application must be sent to the particular Adelaide office (see annexure “C” to Mr Singer’s affidavit). In context, and with reference to the Perth office in the same “booklet”, that meant to be “lodged” there. However, even if the “booklet” was focused on the “sending”, rather than the “lodging”, of the application, then another option for effecting this was given (that was, it could have be sent “by courier”).
Further, and importantly, the “booklet” says nothing helpful to the applicant about the context of the relevant regulatory scheme. Regulation 2.10(2A)(b) states, plainly, that an application for a subclass 892 visa can only be made “at an office of Immigration in Australia”. Ultimately, whatever is stated in the “booklet”, the plain words of r.2.10(2A)(b) of the Regulations remain untouched. Whatever contextual legislative ambiguity may have existed in Nair is not present here in the regulation, nor the relevant primary legislation.
The applicants also referred to Pomare v Minister for Immigration and Citizenship [2008] FCA 458 (“Pomare”). They submitted that, in that case, the issue was whether a letter from the Minister cancelling the applicant’s visa, and notifying him of his review rights, was adequate. Specifically, that the applicant had a right of review in the Administrative Appeals Tribunal and the Minister’s letter gave a PO Box address for the Administrative Appeals Tribunal for the purpose of making that application. However, no street address was provided.
The applicants referred to Pomare at [21] – [22]:
“[21] It was, correctly, common ground on the appeal that an application to the Tribunal is not "made" until it is received by the Tribunal. In my opinion, in order to state where an application for review by the Tribunal can be made, the written notice must state the place where the person can cause the Tribunal to receive his or her application, and so, in the present case, cause the time limit fixed in s 500(6B) of the Act to cease to run.
[22] Counsel for the Minister conceded, again correctly in my view, that an application for review would not be received by the Tribunal and therefore would not be made to the Tribunal when either:
• the application was posted in an envelope addressed to the Tribunal at the post office box specified in the written notice that was handed to Mr Pomare; or
• the application in that envelope reached that post office box.”
If anything, that part of Pomare would tend to assist the Minister. I agree with the Minister that, having regard to the context in Pomare and the current case, there is no relevant difference between making an application by “lodging” it with the Administrative Appeals Tribunal (Pomare) and making an application “at an office of Immigration” (as in the current case).
I note that the applicants contended that Nair was closer to the current circumstances than Pomare. However, what can be said is that both are not directly on point with the current circumstances, although Pomare is “closer”.
What is of far greater assistance to the current circumstances is the Full Federal Court’s judgment in Minister for Immigration & Multicultural Affairs v Li [2000] FCA 1456 (per Ryan, Sackville and Emmett JJ). That was a case involving r.2.10(1)(b) of the Regulations, as it then was (r.2.10(1)(b) provided that “[a]n application for a visa must be made: … (b) in the case of an application to be made in Australia….at any office of Immigration in Australia” – per footnote [3] of the Minister’s written submissions – emphasis added). That is, as the Minister submits, relevantly identical to r.2.10(2A)(b).
The Minister relies on Li at [72] and [75]:
“[72] Regulation 2.10(1)(b) is plainly drafted on the assumption that an application for a visa is to be considered by the Minister, at least in the first instance. It proceeds on the basis that the prescribed form should not only set out the claims made by the applicant, but should be made at an office of Immigration. There are obvious reasons of administrative efficiency underlying the requirement that the application be made at an office of Immigration and not elsewhere. Among its other advantages, the requirement facilitates consideration of the application by the Minister, or his or her delegate. The requirement is consistent with the legislative insistence on completion of a prescribed application form, even to the point of conditioning the exercise of the Minister's powers on lodgment of a completed form.
…
[75] Regulation 2.10(1)(b), objectively viewed, prescribes the way in which an application for a visa is to be made, namely at an office of Immigration. The regulation applies in specified circumstances, namely where an application is to be made in Australia. It is therefore a regulation that prescribes the way for making an application in specified circumstances within the meaning of s 45(2)(a) of the Migration Act. If an application does not comply with reg 2.10(1)(b), the consequence is that the purported application is invalid: s 46(1)(b).”
I agree with the Minister that (per [20] of the Minister’s written submissions):
“Their Honour’s observations that there exists ‘obvious reasons of administrative efficiency underlying the requirement that the application be made at an office of Immigration and not elsewhere’ has particular resonance in the present case, given that the Minister has no control over when (or even if) visa-applications will reach a post-office box leased by the Minister and it is the responsibility of the visa-application to arrange his or her affairs in a way that ensure that visa-applications reach an office of Immigration on time. Moreover, to conclude that a post office box is ‘an office of Immigration in Australia’ involves a strained application of the plain wording of the meaning of ‘office’ and does not sit comfortably with the approach of Ryan, Sackville and Emmett JJ in Li and where their Honours drew attention to the administrative logic underlying reg 2.10(1)(b), (which is relevantly identical to reg 2.10(2A)(b)).”
Before the Court, the applicants agreed that (with reference to the “booklet” – annexure “C” to Mr Singer’s affidavit) there were four “choices” as to how the application could be sent. However, the applicants’ contended that, once the applicant’s migration agent chose the postal “method of delivery” to a PO Box, this led to uncertainty, which they say was created by the Minister’s procedures.
That is, that the “uncertainty” was created because it was not clear when the PO Box would be “cleared”. Further, that it was also not clear when the contents would be taken to the Minister’s office. The argument was that there were any one of a number of possibilities as to what may then occur once the application was posted to the PO Box. That variety of options created uncertainty.
That “uncertainty” does not assist the applicants. First, this argument does not reveal any uncertainty, or ambiguity, in the relevant Regulations. As set out above, the terms of r.2.10(2A)(b) are clear. The application must be made “at an office of Immigration in Australia”.
Second, as the Minister submitted, the applicant, through her migration agent, elected to utilise one of the four methods available to make her application. Through her migration agent she knew that, in her case, it was essential that the application be made “at an office of Immigration in Australia” by 18 December 2012. It may be that the migration agent thought that by sending the application by express post it would be made by the relevant date. However, the “uncertainty” which the applicants now contends existed in the circumstances caused by the applicant’s own election (or her migrations agent’s election on her behalf), not the conduct of the Minister or officers of his Department. After all, it was open to the applicant, through her migration agent, for example, to send the application “by courier” which would have provided a more direct method of making the application at an “Immigration office in Australia”, given that it would have been delivered to the office at a street address (see the “booklet” at annexure “C” to Mr Singer’s affidavit).
The Minister emphasised this point with reference to Zhan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 327 at [66] per Allsop J (as he then was):
“The scheme of the Act and regulations is such as to place the risk of postal delays on applicants. The consequence of that are reflected in the facts of this case. Neither the Court nor the Tribunal is empowered to give any extension of time. Parliament, as part of this scheme, requires the Minister or his delegate to provide sufficient information to the applicant to facilitate the timeous filing of an application for review directed to the relevant subject matter. One aspect of that is the requirement to tell the applicant where he or she is to go to make an application. …”
[Emphasis added.]
In the current case, the Minister’s “booklet” provides “sufficient information” for the relevant purpose. Given the options available in that “booklet” there were sufficient available mechanisms for the application to have been made in a timely fashion.
I agree with the Minister that, having made the election, the applicant assumed the risk involved in utilising the particular option that she chose. In any event, it is, as the Minister submitted, encumbent on the applicant, particularly one represented by a migration agent, to arrange her affairs in such a way as to heighten the likelihood of the application being made in time. Even having chosen to send the application by post, it was open to the applicant’s migration agent to have acted in a more timely fashion to ensure enough time was made available so that it would be received at the Immigration office in time.
The applicants’ suggestion, during the hearing, that the PO Box was somehow a part of an Immigration office never rose above a suggestion. There was no evidence before the Court to indicate that it was part of an Immigration office in Australia. As with the courier, the PO Box is a device, or method, by which the application can be transmitted to the Immigration office. As the Regulations require, the application was “made” when it was “made at an office of Immigration Australia”. The PO Box remains physically, and in the context of the relevant part of the Regulations, separate from the Immigration office.
The Minister referred to other types of visas which, in distinction to the Business Skills visa (subclass 892), allowed applications to be made by posting to a PO Box (for example see subclasses 124, 175, 176 and 200). This lends support to the Minister’s position that where, as in the current case, the drafter of the Regulations referred to the visa application being “made” at “an office of Immigration in Australia”, that did not mean that it could be “made” when received at the PO Box after posting the application to a PO Box.
Conclusion
The officer in the Minister’s department was correct, in all the circumstances, to find that the visa application was not validly made. The sole ground of the application to the Court is not made out. It is appropriate in these circumstances that the application be dismissed. I will make an order accordingly.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 24 July 2013
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