Kim v Minister for Immigration
[2013] FCCA 1433
•24 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KIM v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1433 |
| Catchwords: MIGRATION – Migration Act 1958 (“Act”) – notification of decision on visa application – provision of two addresses for notification although Act contemplated only one. STATUTORY INTERPRETATION – Literal operation of provision inconvenient and productive of result unlikely to have been intended by the Parliament – alternative construction preferred. |
| Legislation: Migration Act 1958, ss.66, 338, 347, 348, 494B, 494C Migration Regulations 1994, regs.2.16, 4.10, cl.573.225 of sch.2 |
| Maroun v Minister for Immigration & Citizenship (2009) 112 ALD 424 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Minister for Immigration & Citizenship v SZIZO (2009) 238 CLR 627 |
| Applicant: | JUNG EUN KIM |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2394 of 2012 |
| Judgment of: | Judge Cameron |
| Hearing date: | 11 September 2013 |
| Date of Last Submission: | 11 September 2013 |
| Delivered at: | Sydney |
| Delivered on: | 24 September 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Christopher Levingston & Associates |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari issue bringing the second respondent’s decision of 15 October 2012 into this Court to be quashed.
A writ of mandamus issue directing the second respondent to re-determine according to law the applicant’s application made to it on 21 June 2012.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2394 of 2012
| JUNG EUN KIM |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, who is a citizen of South Korea, applied for a Student (Temporary) (Class TU) subclass 573 visa on 22 November 2011. On 2 February 2012 that application was refused by a delegate of the first respondent (“Minister”) on the basis that the applicant had failed to provide evidence of adequate health insurance for the duration of her intended stay in Australia and thus did not satisfy cl.573.225 of sch.2 to the Migration Regulations 1994 (“Regulations”). On 21 June 2012, the applicant applied to the second respondent (“Tribunal”) for a review of that decision. The Tribunal found that it did not have jurisdiction to review the delegate’s decision as the applicant’s application for review had not been received within the period during which a valid application could be made. The applicant has applied to this Court for judicial review of the Tribunal’s decision.
For the reasons which follow the Tribunal’s decision will be set aside and the matter remitted to it to be determined according to law.
Relevant legislation
Notification of decisions to grant or refuse visas
Section 66(1) of the Migration Act 1958 (“Act”) provides that when the Minister grants or refuses to grant a visa, he must notify the applicant of that decision in the prescribed way. Regulation 2.16(3) provides that the Minister must effect that notification by one of the methods specified in s.494B. Section 494B relevantly provides:
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.
…
Dispatch by prepaid post or by other prepaid means
(4)Another method consists of the Minister dating the document, and then dispatching it:
(a)within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or
(ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; …
Transmission by fax, e-mail or other electronic means
(5)Another method consists of the Minister transmitting the document by:
(a) fax; or
(b) e-mail; or
(c) other electronic means;
to:
(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 …
Section 494C(4)(a) provides that if the Minister gives a document to a person by way of prepaid post, as permitted by s.494B(4), the person is taken to have received it within seven working days of the date of the document if it was dispatched from a place in Australia to an address in Australia.
Review of decision to refuse visa
By virtue of s.338(2) of the Act, the delegate’s decision was an “MRT-reviewable decision”. Pursuant to s.348 of the Act, the Tribunal’s jurisdiction arises if an application to it complies with s.347 of the Act. Between them, s.347(1)(b)(i) and reg.4.10(1)(a) of the Regulations relevantly provide that an application for review of a decision covered by s.338(2) must be made within twenty-one days of the notification of the decision.
Background
Question 15 of the applicant’s visa application form requested her residential address in her country of usual residency. The applicant provided an address in Seoul. Question 17 asked for her residential address in Australia “if known” and the applicant provided an address in Rhodes, a suburb in Sydney. Question 19 asked the applicant to identify an “Address for correspondence” and she responded “As above”. The applicant gave an affirmative response to question 20 which asked “Do you agree to the department communicating with you by fax, e-mail or other electronic means?” She also provided an email address. A reproduction of that part of the relevant departmental form appears as an annexure to these reasons.
On 30 November 2011 the Department of Immigration and Citizenship (“Department”) wrote to the applicant by email requesting additional information in support of her visa application. The applicant sent an email in reply dated 1 December 2011.
As noted earlier, the delegate refused the applicant’s application for a student visa on 2 February 2012. On 3 February 2012 a letter enclosing the decision record was dispatched by prepaid registered post to the applicant’s Rhodes address. That letter was returned to the Department marked “unclaimed” on 29 March 2012.
On 13 June 2012 the applicant wrote by email to the Department asking for advice on her visa application. The Department emailed a copy of the delegate’s decision to the applicant on 15 June 2012. On 21 June 2012 the applicant applied to the Tribunal for review of the delegate’s decision.
After receiving the applicant’s review application, the Tribunal wrote to her advising her that, in its view, the application was not valid as it had been lodged outside the prescribed period. The Tribunal noted in this regard that the applicant was taken to have received the decision notice on 13 February 2012 and thus the last day for lodging an application for review was 5 March 2012.
In a response dated 11 September 2012 the applicant claimed that:
a)she had rented at Rhodes until 17 December 2011;
b)when she applied for the visa on 22 November 2011, she provided her email address and phone number and agreed to communication by email;
c)she had moved to Chatswood and, after her move, the Department asked her to provide further information on her application. She had her health examination on 3 January 2012 and “provided all her evidence with (her overseas student health cover)”;
d)during the application process, before and after she moved houses, she received all communication by email;
e)when the Department sent the letter (attaching the delegate’s decision record) she could not get it;
f)she called the Department on 13 June 2012 to obtain a copy of her visa and was told that she did not have one. She visited the Department on 18 June 2012 and applied to the Tribunal on 21 June 2012; and
g)she was sorry that she had failed to report her new address to the Department. She had had a lot to do and think about when arranging to move home by herself.
The letter also attached the following documents:
a)a ‘Notice of Intention to Vacate’ the Rhodes address from CJ Real Estate dated 29 November 2011;
b)an email from the Department to the applicant dated 30 November 2011 requesting further documentation;
c)an email from the applicant to the Department dated 1 December 2011 attaching her electronic confirmation of enrolment and evidence of adequate finances for the intended duration of her stay. In the email, the applicant also advised that she had booked her health check;
d)a letter from the applicant’s health insurance provider dated 6 January 2012 confirming that her overseas student health cover ran from 1 August 2011 to 15 March 2014 and giving her postal address as an address in Chatswood; and
e)an email from the applicant to the Department dated 13 June 2012 requesting an update on the status of her visa application.
Tribunal’s decision and reasons
The Tribunal found that the applicant sought review of an MRT-reviewable decision covered by s.338(2) of the Act and that the period within which she could do so was twenty-one days, commencing when she was validly notified of the decision in accordance with the Act.
The Tribunal found that it had no jurisdiction to review the application as it had not been received within the prescribed period. In this connection, it found that the delegate’s decision notice was dispatched to the correct address within three working days of the date of the letter in accordance with ss.66(1) and 494B(4) of the Act. It found that by virtue of s.494C(4) of the Act the applicant was taken to have received the notice on 13 February 2012, seven days after the date it bore, regardless of the fact that it was returned unclaimed. The Tribunal therefore found that the prescribed period for lodgement of a review application expired twenty-one days later on 5 March 2012 and as the application for review was received on 21 June 2012, it was received out of time.
In making its findings, the Tribunal considered the applicant’s submissions but found that they did not provide a basis for accepting her review application. In this regard, the Tribunal made the following findings:
a)it rejected the applicant’s implied claim that, as she had authorised email communication on her application and had been corresponding with the Department by email, the refusal notification should have also been sent by email. It accepted that the applicant had authorised email communication in respect of her application but noted that she had provided the Rhodes address as her residential address on the application and indicated that it was her address for correspondence. The Tribunal held that the Minister had the discretion to select the method used to notify an applicant of a decision, provided that it was one of the methods specified in s.494B of the Act. It further held that using a particular method at one point in the visa application process did not prevent the use of an alternative method for further communication, provided that each method had been identified by an applicant as a means for communication with the Department;
b)it found that the applicant’s Chatswood address was not notified to the Department as an address for correspondence at the time the visa application was refused by the delegate. In this regard, the Tribunal noted a potential implied claim arising from the applicant’s submission of a letter dated 6 January 2012 confirming her membership of a health fund which was addressed to her at her new address in Chatswood. On the basis of the information before it, the Tribunal did not accept that this letter had been provided to the Department, and even if it had, it did not accept that the submission of the letter would have amounted to providing the new address to the Department for the purpose of any future communication. It also noted that the applicant appeared to acknowledge that she had not notified the Department when she conceded in her letter of 11 September 2012 that it was her fault that she had not reported her current address to the Department; and
c)it found that the delegate’s decision was correctly notified in accordance with legislative requirements and that the notification was effective. In this connection it noted the applicant’s claim in her application for review that she was notified of the decision on 15 June 2012 and accepted that it had been emailed to her on 15 June 2012 after she requested a copy from the Department. However, the Tribunal held that the time period to make a valid review application did not re-commence because the applicant was sent a copy of the decision.
Proceedings in this Court
In her further amended application the applicant alleged:
1.The Tribunal erred in finding that the applicant was lawfully notified of the refusal of her student visa application for the purposes of s.66(1) of the Migration Act.
Particulars
(a)Error in finding that the applicant was so notified by a method set out in s.494B(4)(c) of the Migration Act.
The applicant conceded that if the delegate’s decision was properly notified to her by the Department’s letter of 2 February 2012, her application to the Tribunal had been lodged out of time.
The Minister may notify a visa refusal by using any one of the methods described in s.494B: Maroun v Minister for Immigration & Citizenship (2009) 112 ALD 424 at 431 [34]. On this occasion he chose to use pre-paid post. Consequently, to be effective, the notification had to satisfy the requirements of s.494B(4) and, relevantly for this case, s.494B(4)(c)(ii) which refers to documents being sent to an applicant’s
… last residential or business address provided to the Minister by the recipient for the purposes of receiving documents … .
The applicant submitted that the address to which the refusal letter was sent had to be one which had been provided “for the purposes of receiving documents”. She submitted that the visa application form did not suggest that any address provided for the purposes of correspondence was also provided “for the purposes of receiving documents” and that it was not stated in or to be inferred from the form that a residential address was to be the contact address. The applicant submitted further in this regard that her response to question 19 “As above”, had not been effective because the question clearly implied that only one address was to be provided and she had not done that.
It would be unreal to construe the reference to correspondence in question 19 of the application form as not including documents. Correspondence necessarily involves documents of some sort and consequently any sufficient response which the applicant made to question 19 should be understood to have identified an address to which documents might be sent, thereby identifying it as an address “for the purposes of receiving documents” pursuant to s.494B(4). Further, and of particular relevance to this case, the way s.494B uses “address” indicates sufficiently clearly that it contemplates that there will be only one residential address, one business address, one fax number and one email or other electronic address to which documents might be sent.
While the form did not contemplate that an applicant’s residential address would necessarily also be his or her address for correspondence, it was open to an applicant to answer question 19 by reference to his or her residential address, which was the course taken by the present applicant. Nevertheless, the real question is whether, by responding “As above”, the applicant did identify an address for the purposes of receiving documents recognised by s.494 of the Act and, if so, whether it was her residential address in Rhodes. While it might seem to be commonsensical in the circumstances of an onshore visa application lodged by a person then resident in Australia that “As above” would refer to their address in Australia, particularly where the question which elicited that address immediately preceded the question which elicited that response, it is just as open, given that the applicant was a student from overseas, that she intended her residential address in her home country to be an equal or alternative address for the purposes of receiving documents. The circumstances of this case show why an applicant might wish to identify a fall-back address for the receipt of documents.
As the applicant did not provide any specificity in her response “As above” which would suggest that her Rhodes address was the only one to which correspondence might be sent, I conclude that her response should be read as a reference to her address in Seoul as well as to her address in Rhodes. However, as each of them was provided at the same time in the same form, neither could be said to have been the “last residential or business address provided”. That being so, on a literal reading of s.494B(4), there was no address advised in connection with the applicant’s visa application which satisfied that sub-section’s requirements.
Section 23(b) of the Acts Interpretation Act 1901 provides:
23 Rules as to gender and number
In any Act:
…
(b)words in the singular number include the plural and words in the plural number include the singular.
But, as the applicant submitted, s.494B does indicate a contrary intention. As noted earlier, the way it uses “address” indicates sufficiently clearly that only one address of any particular character is being referred to. Consequently s.424B(4) cannot, by virtue of s.23(b), be read as referring to more than one address.
Section 66 of the Act requires the Minister to advise visa applicants of the outcomes of their applications. One purpose of s.494B is to provide the Minister with mechanisms by which he can, with certainty, discharge that obligation. However, if the section can only operate in circumstances where an applicant has notified a single address for the receipt of correspondence, the Minister will be unable to give effective notification of a refusal to grant a visa if an applicant supplies more than one address with no indication of which is to be preferred.
It was said in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 that:
… inconvenience or improbability of result may assist the court in preferring to the literal meaning [of a provision] an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent. (at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ)
It would be inconvenient and unlikely to have been intended by the Parliament that an applicant could frustrate the Minister’s reliance on s.494B by providing more than one “last … address” of a particular sort. Consequently, although the section does refer to “address” in the singular, it should be read as incorporating the plural if an applicant has provided more than one “last … address” of a particular sort. Therefore, in order to satisfy the requirements of the section in circumstances where an applicant has advised more than one such “last … address”, if the Minister chooses to notify by using the method which relates to those addresses he will have to send a notification to each of them.
But even if notification is not sent to all such addresses, it may be that an applicant nevertheless receives notification in fact. Although s.494B has a second purpose, of ensuring that a visa applicant receives timely and effective notice of the outcome of his or her application, the manner of providing timely and effective notice is not an end in itself. Consequently, as the High Court said in the context of an analogous provision in the Act:
While the legislature may be taken to have intended that compliance with the steps in ss 441G … would discharge the Tribunal’s obligations with respect to the giving of timely and effective notice of the hearing, it does not follow that it was the intention that any departure from those steps would result in invalidity without consideration of the extent and consequences of the departure. (Minister for Immigration & Citizenship v SZIZO (2009) 238 CLR 627 at 640 [35])
Therefore, even if a visa refusal letter is not sent to each “last … [postal] address”, if the unsuccessful applicant nevertheless receives timely and effective notice of the refusal, no question of a loss of an opportunity to make timeous application to the Tribunal or denial of natural justice would be likely to arise.
But that is not this case. Here, the applicant did not receive notification of the refusal of her visa application until she had asked for it some months after it had originally been sent, even though the Department had corresponded with her by email and was aware that the refusal letter had been returned undelivered. It knew that she had not received notification and knew how to contact her but did not.
As the applicant’s address in Seoul was as much a “last … address” for the purposes of receiving documents as the address in Rhodes, compliance with s.494B(4) required that the refusal letter be sent there as well. However, there is no evidence or any reason to suspect that it was. The Tribunal did not turn its mind to this issue when finding that the requirements of s.494B(4) had been satisfied. A finding on that issue would necessarily be antecedent to any considerations of the sort discussed in SZIZO.
Because the Tribunal did not consider whether the refusal letter had been sent to the applicant’s Seoul address, it erred in concluding that the applicant had been notified of the refusal of her visa in accordance with s.494G. It therefore erred in believing that it had jurisdiction to conclude that time to apply for a review of the delegate’s decision on the applicant’s visa application had commenced to run in February 2012.
Conclusion
Jurisdictional error on the part of the Tribunal has been demonstrated.
Consequently, the Tribunal’s decision will be set aside and the matter remitted to it to be determined according to law.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 24 September 2013
ANNEXURE
Your country of usual residence
Your residential address in your country of usual residence
Note: A post office box address is not acceptable as a residential
address. Failure to give a residential address will result in your application
being invalid.
POSTCODE
Your telephone numbers outside Australia
COUNTRY CODE AREA CODE NUMBER
Office hours
After hours
Your residential address in Australia (if known)
POSTCODE
Your telephone numbers in Australia (if known)
Office hours (AREA CODE)
After hours (AREA CODE)
Address for correspondence
POSTCODE
Do you agree to the department communicating with you by fax, e-mail
or other electronic means?
No
Yes Give details
COUNTRY CODE AREA CODE NUMBER
Fax number
E-mail address
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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