Choi v Minister for Immigration
[2008] FMCA 1717
•12 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHOI v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1717 |
| MIGRATION – MRT decision – cancellation of temporary visa – failure to provide details in visa application – failure to disclose previous names – notice of intention to consider – service by post to last residential or business address – delegate correctly made decision on non‑compliance before giving notice – whether requirements concerning notice are preconditions to Tribunal’s decision on review of cancellation – no defect in notice or its service established – application dismissed. |
| Migration Act 1958 (Cth), ss.100, 101, 107, 107(1), 108, 108(b), 109, 116, 501 Migration Regulations 1994 (Cth), regs.2.41, 2.55, 2.55(1)(b), 2.55(3)(c), 2.55(4), 2.55(7), 2.55(7)(a), Sch.4 item 4013 |
| Le v Minister for Immigration & Citizenship (2007) 157 FCR 321, [2007] FCAFC 20 Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed (2005) 143 FCR 314 Minister for Immigration & Multicultural & Indigenous Affairs v George (2004) 139 FCR 127 Osborne v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 416 SZEEM v Minister for Immigration [2005] FMCA 27 Uddin v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 149 FCR 1 Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 344 Zhong v Minister for Immigration & Citizenship [2008] FCA 507 |
| Applicant: | WING YAN CHOI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2289 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 12 December 2008 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Kumar |
| Solicitors for the Applicant: | Ren Zhou Lawyers |
| Counsel for the First Respondent: | Mr J Mitchell |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs as agreed or taxed in accordance with Federal Court Rules O.62. Pursuant to r.21.02(2)(c), refer those costs for taxation under O.62.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2289 of 2008
| WING YAN CHOI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Ms Wing Yan Choi has made a number of entrances to Australia, and has resided here for periods of time on various visas. When she was present in Australia in September 2004, her name was Fung Chau Choi. She was found by immigration officers working at a brothel in Pitt Street, Sydney, called the Wild Orchid Private Hotel. When interviewed, she admitted that this was contrary to the conditions on her three‑month tourist visa. Her visa was then cancelled under s.116 of the Migration Act 1958 (Cth), and Ms Choi left Australia on 6 September 2004, after one day in detention.
Ms Choi returned to Australia during 2005 on a passport issued in her current name. She entered on a visitor’s visa, and she was granted a student visa under subclass 572 while she was here. On 5 October 2005, she applied for a further subclass 572 visa which would allow three years’ residence for the purposes of study. This visa was granted on 6 October 2005 (“the 2005 visa”).
In February 2008, in circumstances not shown in the documents before the Court, a delegate of the Minister decided that a notice of intention to consider cancellation of the 2005 visa should be served on Ms Choi under s.107(1) of the Migration Act. The power is available “if the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, …”. Section 107 contains requirements as to the contents of a notice, including that it must contain “particulars of the possible non‑compliance”.
Section 101 provided at the time when the 2005 visa was granted:
101 Visa applications to be correct
A non‑citizen must fill in his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given.
Section 100 explained the meaning of ‘incorrect’:
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave the answer or caused the answer to be given did not know that it was incorrect.
Requirements as to the service of notices under s.107 were contained in reg.2.55 of the Migration Regulations 1994 (Cth), which provided:
2.55Giving of documents relating to proposed cancellation, cancellation or revocation of cancellation
(1)This regulation applies to:
(a) the giving of a document to a holder or former holder of a visa relating to the proposed cancellation or the cancellation of a visa under the Act; and
(b) the giving of a document under subsection 501G (3) of the Act relating to a decision to cancel a visa under subsection 501 (1) or (2) or 501A (2) or section 501B or 501F of the Act; and
(c) the giving of a document to a holder or former holder of a visa relating to the revocation of the cancellation of a visa under the Act.
(2)However, this regulation does not apply in relation to:
(a) a notice to which section 137J of the Act relates; or
(b) a person who is in immigration detention.
Note See regulation 5.02.
(3)For a document mentioned in paragraph (1) (a) or (c), the Minister must give the document in one of the following ways:
(a) by handing it to the person personally;
(b) by handing it to another person who:
(i)is at the person’s last residential or business address known to the Minister; and
(ii)appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(iii)appears to be at least 16 years of age;
(c) by dating it, and then dispatching it:
(i)within 3 working days (in the place of dispatch) of the date of the document; and
(ii)by prepaid post or by other prepaid means;
to the person’s last residential address, business address or post box address known to the Minister;
(d) by transmitting the document by:
(i)fax; or
(ii)e‑mail; or
(iii)other electronic means;
to the last fax number, e‑mail address or other electronic address known to the Minister.
(4)For a document mentioned in paragraph (1) (b):
(a) if the person has held the visa for less than 1 year when the document is to be given, the Minister must give the document in one of the ways mentioned in subregulation (3); and
(b) if the person has held the visa for at least 1 year when the document is to be given:
(i)Immigration must try to find the person; and
(ii)the Minister must give the document in one of the ways mentioned in subregulation (3).
(5)If the Minister gives a document to a person by handing it to the person, the person is taken to have received the document when it is handed to the person.
(6)If the Minister gives a document to a person by handing it to another person at a residential or business address, the person is taken to have received the document when it is handed to the other person.
(7)If the Minister gives a document to a person by dispatching it 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.
(8)If the Minister gives a document to a person by transmitting it 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.
Once a notice has been duly served, ss.108 and 109 gave power to the Minister in his discretion to cancel a visa after considering any response, by deciding “whether there was non‑compliance by the visa holder in the way described in the notice” (see s.108(b)) and after considering the prescribed matters listed in reg.2.41. The matters addressed potentially relevant discretionary considerations on whether to cancel a visa which has allowed a person to enter and/or reside in Australia.
In Ms Choi’s case, the notice which was drawn up by the delegate identified the alleged non‑compliance with s.101, and gave particulars as follows:
NOTICE OF INTENTION TO CONSIDER CANCELLATION UNDER SECTION 109 OF THE MIGRATION ACT 1958
Dear Ms Choi
You are currently the holder of a Subclass 572 – Vocational Education and Training Sector visa granted to you on 06 October 2005.
It has come to the Department’s attention that you may not have complied with section 101 of the Migration Act 1958 (the Act) which states:
Section 101. Visa applications to be correct
101.A non‑citizen must fill in or complete his or her application form in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given or provided.
Departmental records show that on 05 October 2005 you made an application for a Student (Temporary) (Class TU) visa with permission to work. You may not have complied with section 101 of the Act because you did not answer a question on that application form.
When you applied you stated that your name, as shown in your passport, is CHOI Wing Yan but you did not answer the question ‘Give details of any other names that you have been known by, including names before marriage.’
I think that you did not answer all questions on the application form because you did not declare that you had also been known by the name, CHOI Fung Chau.
A record of your responses made to this online application form is attached and marked “A” for your information.
Investigation of your identity
This Department has two photos of an adult female taken in relation to two different immigration matters.
(1)CHOI, Wing Yan, born 29 August 1977 – this photo was taken on 08 September 2005 as part of a medical examination for a student visa.
(2)CHOI, Fung Chau, born 29 August 1977 – this photo was taken when the person was held in Immigration detention on 04 September 2004 as an unlawful non‑citizen.
The Department uses a facial recognition computer program to analyse and compare different photos of faces. The program analyses the photos and reports on the likelihood that two photos are of the same person.
A comparison was made of photo (1) and photo (2) using this program and a score of 0.6630 was returned indicating that it is highly probably that these two photos are of the same person. That is, it is highly probable they are both photos of you. Also, a simple visual comparison of photo (1) and photo (2) also suggests they may be two photos of the one person.
A copy of this report is attached and marked “B” for your information.
Having regard to this information, I consider that you have used the following identities to enter and remain in Australia:
·CHOI, Wing Yan, born 29 August 1977, and
·CHOI, Fung Chau, born 29 August 1977.
If you did not comply with section 101 of the Act, your Subclass 572 – Vocational Education and Training Sector visa may be cancelled.
The Act gives you the opportunity to comment on this possible ground for cancellation and to give a written response why your visa should not be cancelled.
…
The notice then informed Ms Choi about further matters required to be explained in relation to the contents of a response, gave a deadline for a response, gave further warnings about the relevant legislation, and also informed Ms Choi of other information which might “form part of a reason to cancel your visa”. The information included reference to the circumstances in which her 2004 visa had been cancelled, her detention and removal from Australia at that time, an outstanding debt arising from her detention, and incomplete answers she had given in other visa applications.
The delegate attempted to serve the notice on Ms Choi initially by registered post to an address in Pitt Street, Sydney, which had been provided in the online student visa application for Ms Choi’s 2005 visa. This address had been provided as “the Australian residential address that you are currently living at”. The notice sent to that address was dated 25 February 2008, and invited a response by “the end of 19 March 2008”. The letter was subsequently returned to the Department of Immigration with advice from the post office that the recipient had “left address/unknown”.
The delegate then posted by registered post another copy of the notice which was dated 17 March 2008, and which contained the identical content and annexures as the earlier notice. This was addressed to Ms Choi at the Wild Orchid Private Hotel. It invited a response “by the end of 09 April 2008”. The Department received advice from the post office that this had been delivered at the address, and a signature had been obtained of “addressee or agent” on 20 March 2008. The signature might read “Tina H”.
The delegate received no response to the notice, and on 10 April 2008 made a decision under s.109 to cancel Ms Choi’s student visa. It is unnecessary to examine the delegate’s reasons, except to note that the delegate was satisfied that there was the non‑compliance which had been suggested in the notice. The delegate considered the requisite statutory matters, and after assessing the relevant considerations he concluded that it was appropriate to cancel the visa.
Notice of the delegate’s decision was posted by prepaid post on 15 April 2008 to Ms Choi at the Wild Orchid Private Hotel. The notification must have come to her attention, since she attended an office of the Department on 1 May 2008 in possession of the letter, and on 2 May 2008 an application for review was lodged on her behalf by a firm of solicitors.
Ms Choi was invited by the Tribunal to respond to a lengthy invitation for comments. It is unnecessary for me to describe its contents and her response, except to note that she explained the change in her name as having occurred on the advice of a Buddhist fortune teller. She disclaimed any knowledge of the contents of her 2005 visa application, which she said had been completed by her friend.
Ms Choi also attended a hearing of the Tribunal on 17 July 2008. She admitted that she was the same person whose visa had been cancelled in 2004, and said that she changed her name before returning to Australia and obtaining onshore student visas. She claimed that she had started an English course, and then enrolled in a longer course after returning to Hong Kong twice, but she had no evidence to show these enrolments.
She denied having received the s.107 notice posted to the Wild Orchid Private Hotel. The Tribunal’s account of her evidence about this was:
36.The Notice dated 17 March 2008 addressed to Choi Wing Yan was also sent to 429A Pitt St, Sydney. The applicant said that she did not know this address. The Tribunal pointed out that it was the address of the Wild Orchid Private Hotel from which she had been detained in 2004. The applicant agreed that this was the case. The Tribunal told the applicant this address was her last business address known to the Department. An Australia Post Registered Post Delivery Confirmation, Advice Receipt indicates that the Notice sent to this address was collected on 20 March 2008 by a person signing as “Tina H” (Department file CLF2008/31539 folio 128). The Tribunal showed the applicant the Receipt and asked the applicant if the signature on the receipt was hers. She said that it was not. She said that she knew nothing about it. She said that she had not received the Receipt because she did “not go back”. The Tribunal asked for clarification. She said that she did not go back to the Wild Orchid Private Hotel after the time she had been “caught” there in 2004.
She maintained that she had changed her name in Hong Kong after her 2004 departure from Australia, because her previous name was unlucky.
The Tribunal handed down a decision on 15 August 2008, which affirmed the delegate’s decision. The Tribunal recited the background to the matter, including its letter which put relevant matters to Ms Choi, and her written and oral responses to these matters.
The Tribunal referred to the decision of Lander J in Zhong v Minister for Immigration & Citizenship [2008] FCA 507, which held that a delegate must arrive at a preliminary conclusion as to non‑compliance, before exercising the power to serve a notice under s.107(1) inviting a response. The Tribunal addressed that issue, and concluded:
On the basis of the evidence that was available to the delegate the Tribunal is satisfied that he had reached the necessary state of mind to engage s.107.
The Tribunal also considered the formal elements required of a notice under s.107, and said it was satisfied as to compliance with those requirements. It also addressed whether a copy of the notice had been given to the applicant in accordance with requirements of reg.2.55. In this respect it concluded:
49.During the hearing, the applicant claimed that she had not received a copy of the Notice before the visa was cancelled. The Tribunal has already noted that it was sent by registered mail to two addresses. It was sent to the applicant’s last known residential and also to her last known business address. The Notice which was sent to her residential address was returned to the Department unclaimed. The Notice which was sent to the business address was collected by someone signing as “Tina H”. The Tribunal finds that under r.2.55 of the Regulations (which relates to Giving of documents relating to proposed cancellation) the applicant is taken to have received the Notice of seven working days after 17 March 2008 (r.2.55(7)(a)).
50.On the basis of the above, the Tribunal finds that the Notice issued under s.107 complied with the statutory requirements and that the applicant is taken to have received it.
The Tribunal then addressed for itself whether it was satisfied that there was non‑compliance by Ms Choi in the way described in the s.107 notice. It was, like the delegate, satisfied that she had been previously known by a different name, and noted that this was admitted by Ms Choi. It found that there was non‑compliance with s.101 in the way described in the notice, in relation to the completion of the 2005 visa application.
The Tribunal then embarked upon a consideration of discretionary matters in regard to cancelling the visa. Its discussion of these matters is not now the subject of challenge, and it is unnecessary for me to examine its reasons. In short, it concluded that, if Ms Choi had declared her other name when applying for her 2005 visa, the decision‑maker probably would have discovered the cancellation of her earlier visa. He or she would then have considered public interest criterion 4013, which would have precluded the grant of a further visa for three years after the cancellation. It concluded: “the likely effect of the correct information on a decision to grant a visa to the applicant is that the visa would have been refused”.
The Tribunal considered Ms Choi’s explanations of her failure to declare her previous name, and said they were: “unpersuasive and unsatisfactory. By not declaring her previous name the applicant has avoided appropriate scrutiny by the Department”. The Tribunal thought that Ms Choi’s responses showed her not to be a credible witness, and said that it “doubts that the applicant has been engaged in study as she claims”, but it made no findings as to how she had occupied herself in Australia. The Tribunal weighed up relevant public interest considerations, and was satisfied that the visa should be cancelled.
The application to this Court was filed on 3 September 2008. It seeks relief by way of quashing the Tribunal’s decision, and an order remitting the matter to the Tribunal to reconsider.
In the course of today’s hearing, I discussed with counsel for Ms Choi whether, if he succeeded in his arguments which challenged the validity of the notice and its service as preconditions to the power of both the Minister and the Tribunal to cancel the visa, relief would more appropriately be given by way of declaratory or other relief quashing both the Tribunal’s decision and the delegate’s decisions, without remitting the matter to either of them. However, it is unnecessary for me to arrive at a conclusion on the form of appropriate relief if Ms Choi’s arguments succeeded, since, in my opinion, they do not.
An amended application filed on 4 November 2008 was relied on by counsel for Ms Choi today. It contains one ground which was relied upon, and its second ground was abandoned. The first ground was considerably embellished in the course of written and oral submissions, and also a further ground was raised in submissions. In essence, the arguments relating to the first ground challenge the Tribunal’s conclusions in relation to due service of a s.107 notice on Ms Choi. The second ground challenges the validity of the notice upon the contention which was upheld by Lander J in Zhong’s case. [The second ground was formulated as “ground 3” in a “further amended application” which was filed on 18 December 2008 after the hearing, pursuant to a direction which I made at the hearing.]
The first ground and its particulars set out in the further amended application is:
1.The Tribunal relies upon the service at the last known business address. The Tribunal committed jurisdictional error by in the applying the law in relation to the service of Notice of Intention to Consider Cancellation (“the notice”) under s. 109 of the Act and the Regulations in finding that there was proper service of the Notice (at para. 36). The Tribunal has misconstrued the law and denied the applicant statutory procedural fairness by failing to provide the applicant with the Notice of Intention to cancel as required by the Act and Regulations.
Particulars
The Tribunal notes [at para. 36] the service of its decision the service was properly effected by service at last known business address of the applicant.
It was known to the Department (the Respondent) that the applicant was previously removed from Australia and that the applicant did not have a business address for service, no such address existing upon the applicant previously having being removed from Australia.
The Tribunal erred in the application of the law. The applicant contends that upon the applicant leaving Australia there was no ‘last business address’ and service on ‘Tina H’ is of no consequence. The Act and the Regulations do not contemplate the interpretation given by the Tribunal.
It was known to the first Respondent that the applicant had returned to Hong Kong from the previous address was 429A Pitt Street, Sydney and did not give 429A Pitt Street, Sydney as the applicant’s address upon subsequent arrival in Australia and this was never her address upon my recent arrival in Australia pursuant to visa granted on 05 October 2005.
Counsel for the Minister raised a preliminary response to Ms Choi’s challenges to the adequacy of service of the s.107 notice. He relied upon authorities which establish that the formalities leading to a primary decision by the Minister to exercise the s.116 power of cancellation, concerning the service of particulars, et cetera, are not preconditions when the exercise of the power is being reviewed by the Tribunal. It was held in Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 344 at [28] that the Tribunal’s power to review a cancellation under s.116 did not require it to be satisfied as to compliance with the mandatory procedural provisions governing a primary decision by a delegate of the Minister under ss.119 to 121. Similar conclusions were arrived at by later Full Courts in Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed (2005) 143 FCR 314 and Uddin v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 149 FCR 1. Counsel for the Minister submitted that, if these authorities applied in relation to the procedural preconditions on the Minister when exercising the s.109 power of cancellation, then it was irrelevant to the Tribunal’s jurisdiction whether the s.107 notice had been served in accordance with the Migration Act and Regulations.
I was referred to no authority which has applied the Zubair line of authority to the Tribunal’s review of a decision under the s.109 power of cancellation. However, authorities which I considered and applied in SZEEM v Minister for Immigration [2005] FMCA 27 suggest that the scheme of cancellation under Part 2, Division 3, Sub‑division C of the Act, including the s.109 power:
36.… adopts a clearly different approach to the scheme considered in Zubair. As the above discussion of ss.107, 108, 109 and 112 shows, the ambit of a s.107 notice defines the “first step” decision under ss.109(1)(a) and 108(b) in a substantive way, and this is not just a procedural matter.
In that case, I followed a decision of Allsop J, which held that the Tribunal was bound to direct its own conclusions about non‑compliance with s.101 at the issue defined by the s.107 notice and no other issues. This reasoning suggests that the Tribunal also must be satisfied as to the procedural preconditions in relation to the content and service of the notice under s.107. I am therefore inclined to conclude that the Tribunal in the present case correctly thought that it should satisfy itself as to the formal preconditions on the exercise of the power by the delegate.
In any event, nothing turns upon the respective jurisdictions of the Tribunal and this Court themselves to address satisfaction of the formal preconditions to the Minister’s power, since I am satisfied that no error affected the Tribunal’s conclusions about these matters. I am also not satisfied that the absence of any precondition to the Minister’s cancellation power has been established on the evidence now before me.
The formulation of the first ground is, in my opinion, clearly misconceived in its third sentence, which suggests that there is an obligation on the Tribunal itself to serve a valid notice of intention to cancel. In my opinion, a review by the Tribunal of a decision under s.109 to cancel a visa does not bring with it the preceding obligation on the Minister to serve a s.107 notice. The decision to serve such a notice is not, itself, the decision under review before the Tribunal. At most, as I have explained, an application to review a cancellation decision brings with it an obligation on the Tribunal to be satisfied as to the preconditions of the s.109 powers before their exercise by the Minister and itself, including the preceding service of a valid s.107 notice. The Tribunal therefore made no mistake of law in this respect.
Ms Choi’s further argument developed in the particulars to the first ground is premised upon an understanding of the Tribunal’s reasoning which is incorrect. It seeks to give the Tribunal’s recitation of Ms Choi’s evidence to it, containing her denial of actually receiving the s.107 notice which was posted to the Wild Orchid Private Hotel, into a finding by the Tribunal that it was in fact satisfied that she received it, contrary to her claims. The argument then asserts that errors arose out of the Tribunal relying upon such a finding.
In written and oral submissions, Ms Choi’s counsel argued that the Tribunal made an error of the type found in Minister for Immigration & Multicultural & Indigenous Affairs v George (2004) 139 FCR 127 at [52]‑[54], by proceeding on a finding that the notice had been actually served. In that case, a Full Court considered a decision by a Minister under s.501 of the Migration Act to cancel a permanent residence visa under the character test provisions. Their Honours concluded that the decision was affected by jurisdictional error, because the Minister had proceeded on a mistaken view that the visa holder had been actually notified. By proceeding under such a mistake of fact in relation to a significant matter, their Honours considered jurisdictional error had occurred. It was submitted to me that similar reasoning could be applied in relation to a decision concerning whether there had been service of a s.107 notice, and that the Tribunal had proceeded upon the same mistake in the present case.
However, that argument is premised, upon a misreading of the Tribunal’s decision. As I have extracted from its “Findings and Reasons” above, in paras.49 and 50 the Tribunal plainly did not make a finding that there had been actual service of either copies of the notice sent to the two addresses which the Department had for Ms Choi. It plainly proceeded upon the basis that service in accordance with law should be found pursuant to the provisions of reg.2.55, which deem service to have been effected. Such deeming occurred in the present case, if the notice had been dispatched by prepaid post within three working days “to the person’s last residential address, business address or post box address known to the Minister”. The Tribunal concluded that in fact both notices were so given by post. It did not, in my opinion, proceed upon any mistake of fact, when concluding that Ms Choi should be treated as having been duly served with the s.107 notice.
Counsel for Ms Choi’s further argument was that, if the Tribunal accepted that deemed service had occurred by reason of reg.2.55(3)(c) and (7)(a), it was not open to the Tribunal to have arrived at that conclusion. His arguments in this respect were not clear. They appear to encompass factual matters as to Ms Choi’s addresses, as well as issues of construction as to the meaning of “last residential, (or) business address … known to the Minister”.
One argument presented in the particulars of the application, and at some points in the submissions, invited the Court itself to form a conclusion that there was no “last business address … known to the Minister”, because the Wild Orchid Private Hotel address was one which the Department received before Ms Choi’s departure from Australia in 2004, and there was no evidence before the delegate at the time of serving the notice that this was again her business address after she returned to Australia. As I have indicated above, by the time the Tribunal came to the matter, and when I look at the evidence, there is evidence suggesting that she did in fact receive documents sent to that address during 2008.
In my opinion, it has not been shown by Ms Choi that it was not open to the delegate, or to the Tribunal, or to this Court, to conclude that this was not her last business address “known to the Minister” when the delegate posted the second s.107 notice to that address in April 2008. There is no evidence that the Department knew of any other business address or, indeed, of any other type of address, at which Ms Choi might be found, other than the residential address to which the first notice was posted. As I have indicated, the residential address was an address which she gave when she applied for the 2005 visa. The Department had no knowledge inconsistent with the apparent possibility that Ms Choi had returned to work at the Wild Orchid Private Hotel under her new name. In my opinion, it was open to the delegate in April 2008 to conclude that this address remained her “last known business address” for the purpose of giving notices concerning her current visa.
I do not accept that the fact that the delegate knows that a person left Australia after giving a residential address, or after been found working at a business address, means that the Minister can no longer “know” that address as the person’s “last” residential or business address in relation to a visa granted after their return. There is no such implication from the Regulations, and as a matter of commonsense it would often be the case that somebody would return to Australia to the same residential or business address.
In the circumstances to which reg.2.55 is directed, and considering the purposes which it serves in the legislation, a sensible construction would not confine the ordinary meaning of “address last known to the Minister” to only addresses “known” after the person’s last entry to Australia. As was pointed out by the Full Court in Le v Minister for Immigration & Citizenship (2007) 157 FCR 321, [2007] FCAFC 20 at [25], provisions in relation to the giving of notices and the deeming of their receipt operate for the benefit both of persons entitled to receive communications, and also to assist an appropriate administration of the Migration Act. In their Honours’ language, the object of such provisions “is to eliminate uncertainty as to whether a document has been given to an applicant”.
I am therefore not satisfied that there was any error in the Tribunal’s conclusion that the second notice had been given to Ms Choi by posting it to the business address where she was last known to have been occupied.
Moreover, I accept the submission of Counsel for the Minister that the Tribunal’s finding as to due service of the s.107 notice encompassed both notices which had been posted. As he points out, the first notice was certainly sent to the last known residential address given by Ms Choi after she had last entered Australia.
If it is necessary for me to decide the matter for myself I would conclude that due service did occur under reg.2.55 in relation to both notices, and that pursuant to reg.2.55(7), Ms Choi is to be “taken to have received the document”.
Counsel for Ms Choi made a further submission, not easily reconciled with his other submissions, which invited the Court to apply the reasoning of French J in Osborne v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 416 at [19]‑[22].
In that case, his Honour was considering a s.501 cancellation by the Minister, and held that there was implied in the legislation a requirement that notice of an intention to cancel must be actually given, at least to the extent that the Minister was obliged to take “reasonable steps” to notify the visa holder. His Honour drew that implication notwithstanding that reg.2.55 expressly addressed the question of the giving of notice. It is not clear, however, whether at the time his Honour addressed reg.2.55 it included a deeming provision. In George’s case (supra), the Full Court assumed that an obligation of taking reasonable steps to notify a person should be implied in the procedures governing s.501 cancellations at that time (see [40] of their Honours’ judgment).
I have doubts whether this reasoning should now be applied in relation to cancellations under s.109. Neither Osborne nor George concerned such a decision. Regulation 2.55 appears now to cover the field in relation to sufficient service, including a provision deeming receipt even where actual receipt has not occurred. That provision is premised, in relation to a s.109 cancellation, only upon due posting to a last known address. Moreover, reg.2.55(1)(b) and (4) impose an additional obligation on the Minister to “try to find the person”, which only applies to s.501 cancellations, and not to s.109 cancellations.
Assuming that Osborne was applicable in relation to service on Ms Choi, on the evidence which was before the delegate, the Tribunal and is now before the Court, I am not satisfied that reasonable steps were not taken to give the notice to her. I also consider that it was open to the delegate and the Tribunal to be satisfied that reasonable steps were taken to notify Ms Choi. Two reasonable attempts were made to give Ms Choi notice by way of a registered letter sent to the only addresses where it seemed likely or possible that she would be found. It was conceded by Ms Choi’s counsel that there was no evidence as to anywhere else in Australia where Ms Choi might be located by the Minister, on any information known to the delegate and the Department. He did not suggest any other steps which should have been taken. There is no evidence before me that there was any knowledge within the Department which rendered unreasonable its attempts to serve the notice at the two addresses to which the notices were sent. I therefore do not consider that the invocation of a principle of implied “reasonable steps” assists Ms Choi in this case, even if such an implication can be made into the relevant legislation.
For all the above reasons, I am not persuaded by any of the arguments which have been presented to the Court in support of Ground 1, concerning the giving of notice to Ms Choi under s.107.
As I have indicated above, the second ground which was argued before me was refined in submissions to a contention that “the form of notice given falls foul of Zhong v Minister for Immigration & Citizenship [2008] FCA 507”.
In that case, a delegate asserted to Mr Zhong in a notice purporting to be served under s.107, that he had given an incorrect answer in his visa application, when he said that he was not in a de facto relationship and did not have a child (see [12]). It appears that the notice was served on Mr Zhong after the Department received information from an estranged partner, and it was seeking to investigate that information. One of the arguments which his Honour addressed was that it was not open to the delegate, and to the Tribunal on review, to make a decision under s.109. This was because the purported s.107 notice had been served without power, due to the failure of the delegate who had given the notice to make a decision on whether there was a non‑compliance with s.101 before he gave the notice. His Honour upheld that contention at [74]‑[77]. His Honour’s construction of s.107 is binding upon me, since his Honour was exercising appellate jurisdiction in relation to this Court. He said:
74Section 107(1)(a) does speak of “possible non‑compliance”. However, that, in my opinion, does not mean that the Minister or the Minister’s delegate only has to suspect that there has been non‑compliance. The Minister or the Minister’s delegate must consider that there has actually been non‑compliance before either one is entitled to give the notice.
75However, that does not mean that the notice must contain an assertion to that effect. Section 107 does not require that the notice include a statement to the effect that the Minister or the delegate considers that the visa holder has not complied with the sections or subsection mentioned in s 107(1). Paragraphs (a) to (f) of s 107(1) sets out the required content of the notice. I therefore reject the contention that the notice does not comply with s 107(1) because the notice does not assert that the Minister had the statutory state of mind.
76However, that does not mean that the notice could be given. When the Minister or the delegate is considering a visa holder’s response the Minister or the delegate must first consider whether s 107 was ever engaged.
77It appears from the notice that the Department had concluded that the appellant may not have complied with s 101. That is made clear not only by the opening words but also by the wording included in the body of the notice. The notice said that the appellant “may have provided incorrect information”. It then asserted that the application failed to provide details of the appellant’s de facto wife and child which caused the delegate to believe that the appellant “may have provided incorrect information”. That was not, in my opinion, sufficient to engage s 107(1) and to permit notice to be given under that section: cf. Gidaro v Secretary, Department of Social Security (1998) 83 FCR 139 at 148‑149. The statutory state of mind had not been reached. The notice was, in my opinion, defective in that the notice could not be given.
As counsel for the Minister points out, his Honour’s reasoning was not that the notice must display the fact that a delegate had arrived at a conclusion on a non‑compliance with s.101, but that the notice might be evidentiary of a failure by the delegate to arrive at such a decision before giving the notice. Counsel for the Minister pointed out circumstantial reasons why his Honour might have thought that it was unlikely that the delegate in that case could have arrived at any decision without first hearing Mr Zhong’s side of the contentions about his personal relationships. However, his Honour’s reasoning at [77] does not refer to those circumstances, but is based upon his Honour’s reading of the notice.
Counsel for Ms Choi submitted that the present notices provided similar evidence that the delegate did not arrive at a preliminary decision about compliance with s.101 before giving the notice. I have extracted the relevant parts of the notices above. In particular, counsel pointed to the second paragraph of the letter, which said: “it has come to the Department’s attention that you may not have complied with section 101 …”. Counsel pointed to the use of the word “may” as in Zhong.
However, I do not consider that this sentence shows that the delegate was in a state of indecision at the time that this notice was drawn up, in relation to whether Ms Choi’s 2005 visa application failed to answer the question requiring disclosure of other names she had been known by. Rather, the sentence was introductory of the topic of the letter, and of the opportunity to respond which it was offering.
Plainly, the 2005 visa application did not contain details of her suspected previous name. It is difficult to see that the delegate could have been in any doubt that there was a failure to answer the question, at least on the evidence which he had. The probable making of a preliminary determination about this, is confirmed in the fourth paragraph of the letter, which asserted to Ms Choi that “you did not answer the question”, thereby suggesting a positive conclusion about a non‑compliance by reason of her failure to answer a question.
The further particulars of the alleged non‑compliance with s.101 provided in the letter also point towards the delegate having arrived at a conclusion about a non‑compliance. Those paragraphs explained the delegate’s reason for thinking that an answer was called for in the circumstances of Ms Choi, being the fact that the delegate has concluded that “I consider that you have used the following identities to enter and remain in Australia”. The delegate expressed no doubt that Ms Choi had another name.
Reading the notice, I am therefore not persuaded to arrive at the same conclusion as was arrived at by Lander J in Zhong’s case. Indeed, in my opinion, the letter reveals that the delegate had arrived at a provisional opinion that there was a non‑compliance which then empowered him to serve a notice under s.107. There is no other evidence before me which supports a finding that the delegate failed to make the preliminary decision required under s.107(1), on the construction taken in Zhong.
I therefore do not accept the second ground which was argued today before me.
For the above reasons, I am not persuaded that Ms Choi has made out an entitlement to any relief from this Court. I must therefore dismiss the application.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 23 January 2009
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