Lee & Ors v Minister for Immigration & Anor
[2006] FMCA 480
•25 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LEE & ORS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 480 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of temporary business entry visas – prior decision rejecting application for sponsorship – visa application refused due to lack of a sponsor – invitation to comment on that information sent prior to the MRT decision – whether the RRT met its obligation to notify the applicants’ authorised recipient considered – whether a breach of that obligation constitutes jurisdictional error considered – whether correspondence can be taken to have been received by an applicant when sent to an applicant rather than his authorised recipient considered – whether the applicants have standing to review the sponsorship decision considered. PRACTICE AND PROCEDURE – The obligation on the Federal Magistrates Court to follow first instance decisions of the Federal Court considered. |
| Administrative Decisions (Judicial Review) Act 1977 (Cth) Federal Court Act 1976 (Cth), s.25 Migration Act 1958 (Cth), ss.359A, 359C, 360, 379A, 379C, 379G, 494D Migration Regulations 1994 (Cth) |
| Chen v Minister for Immigration [2005] FMCA 1000 Makhu v Minister for Immigration [2004] FCA 221 Minister for Immigration v Lay Lat [2006] FCAFC 61 Minister for Immigration v SZANS [2005] FCAFC 41 NAAT v Minister for Immigration (2002) 196 ALR 376 SAAP v Minister for Immigration (2005) 215 ALR 162 SZEEU v Minister for Immigration [2006] FCAFC 2 SZEMB v Minister for Immigration [2005] FMCA 448 SZFYS v Minister for Immigration [2005] FMCA 1172 SZGGG v Minister for Immigration [2006] FMCA 528 VEAN of 2002 v Minister for Immigration [2003] FCAFC 311 |
| First Applicant: | SANG BAK LEE |
| Second Applicant: | YONG HEE KIM |
| Fourth Applicant: | BOM LEE |
| Fifth Applicant: | JIN WOO LEE |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG804 of 2004 |
| Judgment of: | Driver FM |
| Hearing date: | 6 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 25 May 2006 |
REPRESENTATION
Counsel for the Applicants: Mr R Nair, appearing pro bono publico
Counsel for the Respondents: Mr S Lloyd
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG804 of 2004
| SANG BAK LEE |
First Applicant
YONG HEE KIM
Second Applicant
BOM LEE
Fourth Applicant
JIN WOO LEE
Fifth Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
MIGRATION REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Migration Review Tribunal (“the MRT”) made on 7 January 2004 and communicated to the applicant by letter dated the same day. The MRT affirmed a decision of a delegate of the Minister not to grant the applicants Temporary Business Entry (class UC) visas. The relevant claims were made by the first applicant. References in these reasons to “the applicant” or “the principal applicant” are references to him. I adopt as background with minor amendments paragraphs 1 to 6 of the Minister’s written submissions filed on 30 March 2006.
On 28 October 2002, the applicants lodged an application for Temporary Business Entry (Class UC) visas.[1] The application was made on the basis that he was being sponsored by an Australian business, Konel Trading Co.[2]
[1] court book, pages 1-22
[2] court book, page 5
On 3 December 2002, a delegate of the Minister refused that application.[3] This was relevantly because an employer who is an approved business sponsor for an activity had not nominated the applicant (see 457.223(4)).[4]
[3] court book, pages 23-29
[4] court book, page 27.1
On 2 January 2003, the applicant lodged an application for review with the MRT.[5]
[5] court book, pages 30-37
By letter dated 3 November 2003, an invitation to comment under s.359A, concerning the MRT’s refusal of the application for review by his sponsor of the sponsorship application, was sent to the applicant at his residential address and it was also sent to the applicant, care of his migration agent, addressed in the following manner:
Mr Sang Bak Lee
C/- Mr Dennis Park
Strathfield Immigration Services of Australia
PO Box 401
STRATHFIELD NSW 2135There was no response to the invitation.
The MRT handed down its decision on 7 January 2004. The MRT found that the applicant’s proposed employer had not been approved as required by clause 457.223(4) of schedule 2 to the Migration Regulations 1994 (Cth) (“the Migration Regulations”). The MRT had refused the review application in relation to the business sponsorship decision on 31 October 2003. This meant that the applicant did not meet the criteria for those applying on the basis of sponsorship. No claims had been made for eligibility on other grounds.
The judicial review application
These proceedings commenced with the filing of a judicial review application on 13 February 2004. The application was filed in the Federal Court, which transferred it to this Court on 12 March 2004. An amended application was filed in this Court on 13 April 2004. There were, at that time, five applicants but Seul Ki Lee (at that time the third applicant) filed a notice of discontinuance on 14 June 2005.
The applicants were initially represented in this Court by a solicitor but he withdrew from the record on 23 August 2005. When the matter came before me for hearing on 14 September 2005 it appeared to me that there were serious issues to be tried, namely whether the applicants had been properly notified of adverse information, pursuant to s.359A of the Migration Act 1958 (Cth), whether it was possible for the applicants to directly or indirectly challenge the prior sponsorship decision and whether, if jurisdictional error was established, it would be futile to grant relief in the absence of an approved sponsor. Bearing these considerations in mind, I adjourned the hearing, gave directions for the further conduct of the matter and arranged pro bono representation for the applicants.
When the trial of the matter resumed on 6 April 2006 the applicants were ably represented by Mr Nair of counsel. Mr Nair appeared pro bono publico. The Court is grateful for the willingness of counsel to appear on this basis.
The applicants filed in court by leave on 6 April 2006 a further amended application. That application raises the following grounds:
(1)The respondents made a jurisdictional error in that the second respondent (“the MRT”) failed to act in accordance with s.359A and s.379G of the Migration Act.
Particulars
i)The MRT, pursuant to s.359A of the Migration Act, purportedly invited the applicants to comment on information in a letter dated 3 November 2003 (court book, pages 61, 62).
ii)The MRT failed to give, pursuant to s.379G, the recipient authorised by the applicants this invitation.
(2)The respondents made a jurisdictional error in that the second respondent (“the MRT”) failed to act in accordance with s.360 of the Migration Act.
Particulars
i)The MRT did not invite the applicants to appear before the MRT to give evidence and present arguments relating to the issues arising in relation to the decision under review.
With regard to the purported sponsorship decision – review under the Judiciary Act 1903 (Cth) (“the Judiciary Act”):
(3)The respondents made a jurisdictional error in that the second respondent (“the MRT”) misconstrued and misapplied the law in regard to the MRT’s purported decision (“the purported sponsorship decision”) of the second respondent made on 29 October 2003 (MRT File No: N03/00432) affirming the decision of the first respondent finding that Konel Trading Co did “not meet the criteria for approval as a standard business sponsor”.
Particulars
i)The MRT did not, pursuant to Migration Regulation 1.20D, consider whether the applicants’ sponsor has a satisfactory record of, or a demonstrated commitment towards, training Australian citizens and Australian permanent residents in the business operations of the sponsor in Australia.
The applicants rely on the amended application filed on 13 April 2004.
ii)The jurisdictional error above precludes the purported sponsorship decision being a privative clause decision.
iii)Judicial review of the purported sponsorship decision above, and in particular with regard to the proper parties, is not limited by Part 8 and Part 8A of the Migration Act.
iv)The applicants are persons aggrieved by the purported sponsorship decision.
v)The applicants seek review, under the Judiciary Act, of the purported sponsorship decision.
With regard to the purported sponsorship decision – review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the AD(JR) Act”):
(4)The respondents made a jurisdictional error in that the second respondent (“the MRT”) misconstrued and misapplied the law in regard to the MRT’s purported decision (“the purported sponsorship decision”) of the second respondent made on 29 October 2003 (MRT File No: N03/00432) affirming the decision of the first respondent finding that Konel Trading Co did “not meet the criteria for approval as a standard business sponsor”.
Particulars
i)The MRT did not, pursuant to Migration Regulation 1.20D, consider whether the applicants’ sponsor has a satisfactory record of, or a demonstrated commitment towards, training Australian citizens and Australian permanent residents in the business operations of the sponsor in Australia.
The applicants rely on the amended application filed on 13 April 2004.
ii)The jurisdictional error above precludes the purported sponsorship decision being a privative clause decision.
iii)Judicial review of the purported sponsorship decision above, and in particular with regard to the proper parties, is not limited by Part 8 and Part 8A of the Migration Act.
iv)Judicial review under the AD(JR) Act is not limited by s.4 of Schedule 1 of the relevant Administrative Decisions (Judicial Review) Regulations.
v)The applicants are persons aggrieved by the purported sponsorship decision.
vi)The applicants seek review, under the AD(JR) Act, of the purported sponsorship decision.
(5)The second respondent made its purported decision without being satisfied or not satisfied, in accordance with s.65 of the Migration Act, whether the applicants meet the requirements and criteria for the grant of the visas.
Particulars
i)The only criterion that the MRT considered was the criterion that “the proposed employer is approved as a pre-qualified business sponsor or as a standard business sponsor” (court book, page 68).
ii)The MRT found “that the visa applicants’ proposed employer has not been approved as a business sponsor as required by relevant subclause 457.223” (court book, page 68).
iii)This determination that the visa applicants’ proposed employer has not been approved was no legal effect.
iv)This determination and the subsequent decision affirming the decision not to grant visas were both made by the same MRT member.
v)The MRT knew, or should have known, that the above determination was wrong and of no legal effect. The MRT was not entitled or obliged to take into consideration the determination as it was not validly authorised by the relevant law and travelled beyond the limits of what was authorised.
Evidence
I have before me the following evidence:
a)the court book filed on 24 March 2004;
b)an affidavit by Bernadette O’Sullivan made on 5 April 2006 relating to the fact of an absence of an approved sponsor for the applicants;
c)an affidavit by Anthony Carter made on 5 April 2006 relating to the preparation of a notice under s.359A of the Migration Act directed to the principal applicant.
The legislation
At the time of the MRT application in 2003, ss.359A, 359C, 360, 379A(4), 379C, and 379G of the Migration Act provided as follows:
Section 359A:
(1)Subject to subsection (2), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c)invite the applicant to comment on it.
(2)The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies–by one of the methods specified in section 379A; or
(b)if the applicant is in immigration detention–by a method prescribed for the purposes of giving documents to such a person.
(4) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application; or
(c)that is non-disclosable information.
Section 359C:
(1)If a person:
(a)is invited under section 359 to give additional information; and
(b)does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the additional information.
(2) If the applicant:
(a)is invited under section 359A to comment on information; and
(b)does not give the comments before the time for giving them has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the applicant's views on the information.
Section 360:
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2)Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c)subsection 359C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Section 379A(4):
Another method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, 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 Tribunal by the recipient in connection with the review; or
(ii)the last residential or business address provided to the Tribunal by the recipient in connection with the review.
Section 379C:
(1)This section applies if the Tribunal gives a document to a person other than the Secretary by one of the methods specified in section 379A (including in a case covered by section 379AA).
Giving by hand
(2)If the Tribunal gives a document to a person by the method in subsection 379A(2) (which involves handing the document to the person), the person is taken to have received the document when it is handed to the person.
Handing to a person at last residential or business address
(3)If the Tribunal gives a document to a person by the method in subsection 379A(3) (which involves handing the document 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.
Dispatch by prepaid post or by other prepaid means
(4)If the Tribunal gives a document to a person by the method in subsection 379A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a)if the document was dispatched from a place in Australia to an address in Australia–7 working days (in the place of that address) after the date of the document; or
(b)in any other case–21 days after the date of the document.
Transmission by fax, e-mail or other electronic means
(5)If the Tribunal gives a document to a person by the method in subsection 379A(5) (which involves transmitting the document by fax, e-mail or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.
(6)Subsection (5) applies despite section 14 of the Electronic Transactions Act 1999.
Section 379G:
(1) If:
(a)a person (the applicant) applies for review of an MRT-reviewable decision; and
(b)the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review;
the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.
Note: If the Tribunal gives a person a document by a method specified in section 379A, the person is taken to have received the document at the time specified in section 379C in respect of that method.
(2)If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.
(3)The applicant may vary or withdraw the notice under paragraph (1)(b) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the applicant's authorised recipient.
(4)The Tribunal may communicate with the applicant by means other than giving a document to the applicant, provided the Tribunal gives the authorised recipient notice of the communication.
(5)This section does not apply to the Tribunal giving documents to, or communicating with, the applicant when the applicant is appearing before the Tribunal.
At the time of the application to this Court in 2004, ss.479, 486B and 486C of the Migration Act provided as follows:
Section 479:
The parties to a review of a privative clause decision resulting from an application referred to in section 477 are the Minister and:
(a) if the privative clause decision concerned was reviewable under Part 5 or 7 or section 500 of this Act and a decision on such a review has been made–the applicant in the review by the relevant Tribunal; or
(b) in any other case–the person who is the subject of the decision; or
(c) in any case–a person prescribed by the regulations.
Section 486B:
Application of section
(1)This section applies to all proceedings (migration proceedings) in the High Court, the Federal Court or the Federal Magistrates Court that raise an issue in connection with visas (including if a visa is not granted or has been cancelled), deportation, or removal of unlawful non-citizens.
Consolidation of proceedings
(2)Consolidation of any migration proceeding with any other migration proceeding is not permitted unless the court is satisfied that:
(a)the consolidation would otherwise be permitted under other relevant laws (including Rules of Court); and
(b) the consolidation is desirable for the efficient conduct of the proceedings.
(3)No appeal lies from a decision by the court not to consolidate proceedings under subsection (2).
Other joint proceedings etc.
(4)The following are not permitted in or by a migration proceeding:
(a) representative or class actions;
(b) joinder of plaintiffs or applicants or addition of parties;
(c) a person in any other way (but not including as a result of consolidation under subsection (2)) being a party to the proceeding jointly with, on behalf of, for the benefit of, or representing, one or more other persons, however this is described.
Relationship with other laws
(5)This section has effect despite any other law, including in particular:
(a) Part IVA of the Federal Court of Australia Act 1976; and
(b) any Rules of Court.
(6)However, this section does not apply to a provision of an Act if the provision:
(a) commences after this section commences; and
(b) specifically states that this section does not apply.
Exceptions to general rules
(7)This section does not prevent the following persons from being involved in a migration proceeding:
(a) the applicants in the proceeding and any persons they represent, if:
(i) the regulations set out a definition of family for the purposes of this paragraph; and
(ii) all of those applicants and other persons are members of the same family as so defined;
(b) a person who becomes a party to the proceeding in performing the person's statutory functions;
(c) the Attorney-General of the Commonwealth or of a State or Territory;
(d)any other person prescribed in the regulations.
Section 486C:
(1)Only the persons mentioned in this section may commence or continue a proceeding in the Federal Court or the Federal Magistrates Court that raises an issue:
(a) in connection with visas (including if a visa is not granted or has been cancelled), deportation, or removal of unlawful non-citizens; and
(b) that relates to the validity, interpretation or effect of a provision of this Act or the regulations;
(whether or not the proceeding raises any other issue).
(2) Those persons are:
(a) a party to a review mentioned in section 479; or
(b) the Attorney-General of the Commonwealth or of a State or a Territory; or
(c) a person who commences or continues the proceeding in performing the person's statutory functions; or
(d) any other person prescribed by the regulations.
Scope of rule
(3)This section applies to proceedings in the Federal Court's jurisdiction under Part 8 of this Act, section 39B or 44 of the Judiciary Act 1903, section 39 of the Federal Magistrates Act 1999 or any other law.
(3A)This section applies to proceedings in the Federal Magistrates Court's jurisdiction under Part 8 of this Act, section 44 of the Judiciary Act 1903, section 32AB of the Federal Court of Australia Act 1976 or any other law.
(4)To avoid doubt, nothing in this section allows a person to commence or continue a proceeding that the person could not otherwise commence or continue.
Relationship with other laws
(5)This section has effect despite any other law.
(6)However, subsection (5) does not apply to a provision of an Act if the provision:
(a) commences after this section commences; and
(b) specifically states that it applies despite this section.
Definitions
(7)In this section:
deportation decision means a decision relating to the deportation of a person.
removal action means an action to remove a person.
visa decision means a decision relating to a visa (including if the visa is not granted or has been cancelled).
Submissions
Mr Nair, on behalf of the applicants, submits that the core issue in this case concerns s.379G of the Migration Act. He submits that the purported s.359A notice sent to the applicants was not properly directed to the applicant’s authorised recipient and that, accordingly, s.379G was breached. The applicants assert that the breach is a jurisdictional error: Chen v Minister for Immigration [2005] FMCA 1000, in particular at [5] and [6]. The applicants further rely upon VEAN of 2002 v Minister for Immigration [2003] FCAFC 311 at [36]-[39].
Mr Nair further submits that the Court should not follow the decision of the Federal Court in Makhu v Minister for Immigration [2004] FCA 221 because that decision is based upon an incorrect analysis of jurisdictional error in relation to imperative provisions of the Migration Act, by reference to concepts of procedural fairness: see SZEEU v Minister for Immigration [2006] FCAFC 2 at [181]-[182] and [214]. Mr Nair submits that Makhu at [8], [12] and [21] was based on the approach disapproved in SZEEU.
The applicants further assert that s.360 of the Migration Act was breached in that they should have been invited to a hearing because they were never properly invited to comment on adverse information pursuant to s.359A.
Mr Nair sought to advance a further argument (not directly raised by the further amended application) that the s.359A notice was invalid also for the reason that it did not seek a comment on “information” for the purposes of the section because the so called “information” was information relating to a prior invalid decision of the MRT. I indicated that I saw little merit in this argument but that I would consider it.
The applicants assert that there is no reason for the Court to withhold relief in the face of established jurisdictional error. They assert that it would not be futile to require a further hearing before the MRT and assert that, if necessary, the prior decision of the MRT to refuse the sponsorship application could itself be reviewed by the applicants. They assert that the Court has jurisdiction under the AD(JR) Act to review the earlier sponsorship decision as it is itself vitiated by jurisdictional error and hence is not a privative clause decision. Mr Nair submits that the exclusion of migration decisions from the purview of the AD(JR) Act only applies in relation to privative clause decisions. Further, the applicants assert that they have standing under the Migration Act and the Judiciary Act to review the sponsorship decision either directly, or indirectly, by asserting in the application to review the visa decision of the MRT, jurisdictional error in the earlier sponsorship decision relied upon by the MRT. The applicants assert that the MRT which affirmed the sponsorship decision misconstrued the relevant eligibility criteria, in particular, regulation 1.20D.
The Minister’s written submissions relevantly state as follows:
Standing in relation to challenge of the MRT’s decision of 31 October 2003
The Minister accepts that the applicants may commence and continue proceedings in this Court concerning the validity of the Tribunal’s decision concerning their visas. This is because they were applicants in the review before the Tribunal: see ss 479(a) and 486C(1) and (2)(a).
However, as the applicants were not review applicants in the proceedings in the Tribunal in relation to the approval (or non-approval) of the business sponsorship that would have supported his visa application, they have no standing under s 486C to commence or continue such proceedings.
In Basbas v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1602, Gray J said at [18]:[6]
[6] See also Celik v Minister for Immigration [2002] FCA 1529 at [7]
S486C has been recognised to be a provision relating to standing, rather than jurisdiction, intended to prevent collateral challenges to decisions made under the Migration Act from being brought by people who are not the subject of those decisions.
The failed business sponsor would, of course, have had standing under s 486C to challenge the Tribunal’s decision in its review application. However, it has not sought to do so. It is now out of time to commence such proceedings.
While perhaps not critical, it may be noted that in order for the applicants to challenge the Tribunal’s decision in relation to the business sponsorship matter, the business sponsor would be a necessary party. No effort has been made to join the business sponsor. In any event, the Court may not join the business sponsor by reason of s 486B(4)(b) of the Act.
In summary, the applicants do not have standing collaterally to challenge the correctness of the Tribunal’s decision concerning the business sponsorship. For the purposes of these proceedings, the Court should proceed on the basis that that decision is not an issue that is properly raised.
Even apart from s 486C, the applicant would not have sufficient interest in the review proceedings concerning the business sponsorship application. He was not and could not be a party to that review application: reg 4.02(5)(a). He had no right to be heard in that proceeding.
The question of the correctness of the business sponsorship decision cannot arise in these proceedings.
The applicants attempt to avoid this by drawing some analogy with the decision in Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115. However, there is no true analogy. In that case, the delegate (or Tribunal) was bound to accept an opinion on certain matters by a Commonwealth Medical Officer. The Full Court made clear that this duty to accept the opinion arose only if the opinion did not involve an error of law. Here, the Tribunal was under no duty to consider any opinion by a third person. It was obliged to decide at a point in time whether the applicant met certain criteria, including nomination by an approved business sponsor. It concluded (clearly correctly) that he did not have any such nomination. It was not bound to consider only valid opinions; it was making its own assessment of the facts. There is nothing in the Act that makes the Tribunal’s power to consider the review of the subclass 457 visa decision contingent on a valid exercise of power by the Tribunal (or a delegate) in relation to business sponsorship. There simply is no meaningful analogy.
The challenge to the decision of 7 January 2004
The applicant’s challenge to this decision is that the Tribunal failed to give him the invitation required under s 359A. It is said that the invitation sent to the applicant’s agent was not correctly addressed (only in that it was addressed to the applicant care of the migration agent) and, as such, the provisions relating to deemed receipt were not activated. It is then said that the Tribunal erred in failing to invite the applicant to a hearing under s 360 (this latter argument hands off the first because if the invitation under s 359A were given, then the non-response within time would lead to no entitlement to a hearing: ss 360(3) and 363A).
While the Minister accepts that the decision in VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570 has the effect that the letter from the Tribunal addressed “care of” the migration agent does not lead to deemed receipt, that case says nothing about letters sent directly to recipients (which did not happen in that case).
The present case is identical to the position in Makhu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 221. In that case, Mansfield J said:
13 The Act contains provisions as to the means of service, and the effect of service by those means, upon the applicant. The evidence is clear that the letter of 6 February 2003 containing the notification required by s 359A was dispatched to the applicant within three working days of its date by prepaid post to his last residential address and to the address for correspondence provided by him to the Tribunal. (respectively his residential address and his migration agent’s address).
14 In my judgment the sending of the letter of 6 February 2003 in that way is in accordance with a method of giving documents to him prescribed by s 379A(4). It was sent to him, both to his last address for service provided to the Tribunal by him in connection with the review and to his last residential address provided by him to the Tribunal in connection with the review. (See s 379A(4)(c).)
15 The consequence of having complied with that section is spelled out in s 379C of the Act, namely, that the applicant is taken to have received the document seven working days after its date. Notwithstanding the applicant's assertion that he did not receive the document, in fact, the provisions of s 379C(4) mean that for the purposes of the Act the applicant is taken to have received that letter seven working days after its date.
16 Under s 359C his failure to respond to that letter empowers the Tribunal to make a decision on the review without taking any further action to obtain the additional information or to obtain the applicant's views on that information. Moreover, s 360, which obliges the Tribunal to invite the applicant to appear before it to give evidence and to present arguments relating to the issue arising in relation to the decision under review does not apply where there has been a failure to respond to a notice under s 359A: see s 360(2)(c). Section 360(3) expressly says that in such circumstances the applicant is not entitled to appear before the Tribunal.
17 Accordingly in my judgment, notwithstanding the applicant's evidence that he did not in fact receive the notice under s 359A of the Act, the Act deems him to have received it in the circumstances and the Tribunal was not, under Div 5 of the Act, (including s 360), obliged to give him a further opportunity to give evidence or to present arguments as he did not respond to that notice. It was entitled to proceed to hear and determine his application, as it did.
18 I do not accept that by nomination of his migration agent as an authorised recipient, under s 379G of the Act, the notice under s 359A must only be given to the applicant by being addressed to and sent to the migration agent. Section 379G(2) provides:
‘(2) If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.’
19 As noted, the letter of 6 February 2003 was addressed to the applicant care of the migration agent at the migration agent's address and to the applicant at his residential address. Section 379G(1) applies where the Tribunal has given to the authorised recipient, instead of the applicant, the document. Section 379G(2) provides, firstly, that giving the document to the authorised recipient means that the Tribunal is taken to have given the document to the applicant. However, it also expressly preserves the right of the Tribunal to give to the applicant a copy of the document. That it did.
20 The circumstances presently under consideration are different from those considered by the Full Court in Vean of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 311.
The applicants’ submission refer to a decision of Raphael FM in Chen v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1000, in which his Honour declined to follow Makhu. It should be noted that Makhu has been applied elsewhere both before and after Chen: SZEMB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 448 at [38] – [40] and SZFYS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1172 at [13].
The Minister contends that the decision in Chen proceeds, with respect, upon a misreading of the relevant statutory provisions, and is inconsistent with the decision of Mansfield J in Makhu. The decision of the Federal Court was not clearly wrong and should be followed.
For present purposes, the relevant statutory provisions are clear: s 359A(2)(a) required the copy to be given to the applicant "by one of the methods specified in s379A". Subsection 379A(4) specifies posting to the last address for service or the last residential or business address provided. Section 379G provides for, in effect, substituted service. If an authorised representative is specified, the Tribunal complies with its notification obligations if it sends documents to that person, even if the applicant never receives them. In Chen, Raphael FM emphasises subsection (4) in reaching his conclusion, but that subsection does not have the effect which his Honour appears to suggest. The section applies only to communications with the applicant "by means other than giving a document to the applicant". It does not say anything as to the meaning of subsection (2), contrary to the view which his Honour appeared to take at [6]. His Honour’s reliance on SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 is also, with respect, misplaced. That decision does not touch on the present issue.
The fact that the Tribunal can give documents to and communicate with the applicant when the applicant is appearing before the Tribunal is inconsistent with the construction which his Honour places upon the section. If the intention was to ensure "that at no stage shall the applicant's authorised representative be kept out of the loop", the obligation would apply with particular force to documents supplied during a hearing, which the authorised representative may have particular knowledge of.
The terms of subsection (2) are clear: the Tribunal can give the applicant a copy of a document, irrespective of the appointment of an authorised recipient. Where that occurs, as here, there is no basis for asserting that the applicant has not been given a copy of the invitation by one of the methods specified in s 379A.
The decision of Mansfield J, given after argument in which the applicant was represented, is, with respect, to be preferred to the decision in Chen. However, on any view, the decision of Mansfield J cannot be said to have been "plainly wrong". In that circumstances, it is that decision which should be followed.
In these circumstances, the Tribunal did not fail to meet its obligations under s 359A or s 360.
There is, in any event, no evidence before the Court that the migration agent did not in fact receive the Tribunal’s letter (unlike the position in VEAN). That is, there is no evidence that there was any non-compliance with s 379G(1).
The position is that the Tribunal was entitled to make the decision when it did. The applicant did not have an approved sponsor who had nominated him for an activity. He did not comply with the only criteria which he claimed to meet. The Tribunal made no jurisdictional error in relation to visa decision.
Futility
If, contrary to the above submissions, the Court were to conclude that the Tribunal had made a procedural error, relief should be refused because it would be futile.
In order to be eligible for the visa applied for, the applicant must have an approved sponsor who has nominated him.
The only sponsor he has ever advanced to the Department or Tribunal has been rejected and he has no standing to challenge that decision or compel the Tribunal to revisit its decision.
Absent any evidence that there is another approved sponsor ready and willing to nominate him or who has nominated him, a remittal would be futile because the Tribunal can do nothing but reject the review application.
In his oral submissions, Mr Lloyd submitted that the notice issued pursuant to s.359A was a proper invitation to comment in its terms and that it was properly directed to the principal applicant in accordance with s.379A(4). In addition, Mr Lloyd submits that there is no evidence that the copy directed to the applicant care of the authorised recipient did not reach the authorised recipient. Further, Mr Lloyd submits that the Court is bound by the decision in Makhu in the light of the decision of the Federal Court in Minister for Immigration v SZANS [2005] FCAFC 41 and the subsequent revised arrangements in the Federal Court for all appeals from this Court to be dealt with by a single judge, unless the Court decides otherwise. In any event, Mr Lloyd submits that I should follow the decision in Makhu as it is not clearly wrong. In particular, Mr Lloyd submits that what Mansfield J says at [12] of Makhu is correct. In contrast, Mr Lloyd submits that the observations of Raphael FM in Chen at [5] in relation to s.379G(4) are wrong. He submits that it not correct to say that all material must be routed through an authorised recipient, especially at a hearing.
Mr Lloyd accepts that s.379G(1) requires correspondence to be directed to an authorised recipient where one has been appointed but submits that this was in fact done. He submits that it is not a breach of s.379G(1) to send correspondence to an authorised recipient at the address of the authorised recipient by directing the correspondence to an applicant care of the authorised recipient.
Mr Lloyd also submits that the Court is unable to grant relief in relation to the sponsorship decision without hearing from the sponsor and that the Migration Act would not permit the sponsor to be joined. He relies on s.486C and s.479 of the Migration Act as they applied at the time this proceeding was instituted. He submits that the applicants have no standing to challenge the sponsorship decision, even under the general law. The Minister does not concede that the sponsorship decision is invalid. Mr Lloyd submits that it would be futile to grant relief even if jurisdictional error is found in the decision of the MRT under review because the applicants lack an approved sponsor and that position would not change, even if the sponsorship decision were to be set aside.
Reasoning
The first issue to resolve in these proceedings is whether the decision of the MRT directly in issue was vitiated by jurisdictional error. The first challenge to the decision centres upon the invitation to comment sent pursuant to s.359A of the Migration Act. In this case the invitation was sent both to the applicant at his nominated residential address and to the applicant care of his migration agent. In VEAN of 2002 v Minister for Immigration [2003] FCAFC 311 at [37]-[39] the Full Federal Court held that sending a letter to an applicant care of an authorised recipient did not constitute giving the letter to the authorised recipient, so as to establish compliance with s.494D(1) of the Migration Act. The Full Court noted at [36] that s.494D(2) also permitted the Minister to give correspondence to an applicant in addition to an authorised recipient. However, in that case no letter had been sent directly to the applicant and the correspondence sent to the address of the authorised recipient could not be taken to have been correspondence to the applicant because it was not properly directed to the authorised recipient[7]. I am of course bound by the Full Court judgment in VEAN.
[7] see paragraph 46 of VEAN of 2002
In Makhu v Minister for Immigration [2004] FCA 221 Mansfield J at [14]-[20] distinguished the case before him (which involved equivalent provisions in relation to tribunal correspondence in Division 8A of the Migration Act - the same provisions as are in issue in this case) because the letter in issue in that case had been sent to the applicant at his nominated home address as well as to the applicant care of his nominated recipient. At [18] His Honour said:
I do not accept that by nomination of his migration agent as an authorised recipient, under s 379G of the Act, the notice under s 359A must only be given to the applicant by being addressed to and sent to the migration agent. Section 379G(2) provides:
‘(2) If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.’
At [19] His Honour continued:
As noted, the letter of 6 February 2003 was addressed to the applicant care of the migration agent at the migration agent's address and to the applicant at his residential address. Section 379G(1) applies where the Tribunal has given to the authorised recipient, instead of the applicant, the document. Section 379G(2) provides, firstly, that giving the document to the authorised recipient means that the Tribunal is taken to have given the document to the applicant. However, it also expressly preserves the right of the Tribunal to give to the applicant a copy of the document. That it did.
The decision of the Federal Court in Makhu has been followed in this Court on at least three occasions[8]. However, in Chen v Minister for Immigration [2005] FMCA 1000 Raphael FM declined to follow it. At [3]-[6] His Honour said:
Mr Chen was a person who applied for a MRT review of the decision. He did give the Tribunal written notice of the name and address of another person authorised by him to receive documents, an authorised recipient. The Tribunal was therefore required not just to give the authorised recipient any documents that it would otherwise have been to the applicant but it is required to give those documents to the authorised recipient instead of the applicant. This is an important mandatory requirement. I am aware that subsection 379G(2) permits the Tribunal to give the applicant a copy of any document that it has given to the authorised recipient. This is a discretion granted to the Tribunal. Does the discretion granted to the Tribunal to do that take away the effect of the mandatory requirement to provide the information to the authorised recipient instead of the applicant so that service upon the applicant himself is effected even though there is no service upon the authorised recipient? Mr Kennett for the Minister argues yes and he refers me to the decision of Mansfield J in Makhu v The Minister [2004] FCA 221. Mr Dobbie for the applicant says no. He relies on the dicta of the High Court in SAAP and Anor v The Minister [2005] HCA 24 and in particular that of Gummow J at [133 et sec].
Mr Dobbie posits a situation which indicates why I should prefer his view to that of Mr Kennett. He suggests that the requirement to give the information to the authorised recipient could be considered a safeguard against the possibility that the applicant may be absent or sick, unable to speak or read English or otherwise incapable of communication when the Tribunal proposes to send correspondence to him. In order to protect the Tribunal from the vagaries of the behaviour of an applicant, this provision has been inserted so that provided somebody who the applicant has given his authority to receives a document then the applicant shall be taken to have received it himself.
The fact that the Tribunal is entitled also to send a copy of the correspondence to the applicant, does not detract from the importance of the provision requiring it to send the document to the authorised representative for the reasons that Mr Dobbie posits. There is a similar provision in subsection 379G(4) which I believe supports Mr Dobbie's view that the section itself is bent upon ensuring that at no stage shall the applicant's authorised representative be kept out of the loop.
In making the point that I have above, I am sensible of the fact that I appear to be flying in the face of the decision of his Honour Mansfield J in Makhu (supra). With respect to his Honour, whilst it may well be that his decision was correct when handed down, the views of the High Court concerning the importance of mandatory provisions of the Migration Act and the fact that his Honour may not have had the advantage of Mr Dobbie's assistance and his association of subsection 379G(4) with subsection 379G(2) permits me, I believe, to respectfully differ from the views expressed by him in that case. His Honour takes a view different to mine as to the work that is required of the word "instead". It appears to me that he uses it to give the Tribunal the ability to choose between which parties the Tribunal may address, whereas I believe that the Tribunal has no such discretion and that, in fact, there are no circumstances in which the authorised recipient should not receive a document.
[8] see SZEMB v Minister for Immigration [2005] FMCA 448 at [38]-[40], SZFYS v Minister for Immigration [2005] FMCA 1172 at [13] and SZGGG v Minister for Immigration [2006] FMCA 528 at [37]-[45]
In this case, Mr Lloyd, for the Minister, pressed upon me both the proposition that Raphael FM was wrong in Chen and also that, in any event, I am bound to follow the decision of Mansfield J in Makhu. The Full Federal Court dealt with the binding nature of its decisions in this Court in Minister for Immigration v SZANS [2005] FCAFC 41 at [35]-[39]. The Full Court made clear that, whether or not decisions of single judges of the Federal Court when not sitting on appeal from the Federal Magistrates Court are binding upon Federal Magistrates, such decisions should be followed unless they are plainly wrong, in conformity with the principle of judicial comity that is applied in the Federal Court itself. While there is no doubt that this Court is bound by decisions of the Full Federal Court and decisions of single judges of the Federal Court sitting on appeal from this Court, the decision in SZANS lends at least limited support to the view adopted by Raphael FM in NAAT v Minister for Immigration (2002) 196 ALR 376 at [27] that single judge decisions of the Federal Court otherwise than on appeal from this Court are not binding upon this Court.
Mr Lloyd submits that the position has changed since enactment of s.25(1AA) of the Federal Court Act 1976 (Cth) with effect from 1 December 2005. That section has the effect that ordinarily appeals from this Court are heard by a single judge. However, that legislative amendment does not alter the distinction that in my view should be drawn between appellate decisions of the Federal Court and first instance decisions. I note that the Federal Court draws that distinction itself.
The question then for me is whether judicial comity requires that I follow the decision of Mansfield J in Makhu. Raphael FM in Chen took the view at [6] that the decision in Makhu was plainly wrong because His Honour had based his reasoning upon concepts of procedural fairness rather than upon the mandatory requirements of the Migration Act. Nicholls FM took a different view in SZGGG at [42]. Obviously, where correspondence is sent to an applicant at his home address (and received by him) there is unlikely to be any procedural unfairness whether or not the same correspondence is properly directed to the applicant’s authorised recipient. However, as is now apparent from the decision of the High Court in SAAP v Minister for Immigration (2005) 215 ALR 162, the decision of the Full Federal Court in SZEEU v Minister for Immigration [2006] FCAFC 2, and the decision of the Full Federal Court in Minister for Immigration v Lay Lat [2006] FCAFC 61, the question of whether a failure to comply with a provision of the Migration Act is to be addressed by reference to the terms of the Act itself, not by reference to general law notions of procedural fairness. The Migration Act establishes a code of disclosure. The questions to be addressed are, first, what does the Act require? Secondly, has the Act been complied with? Thirdly, was the requirement an imperative one, the breach of which constitutes jurisdictional error?
There is no doubt in my mind that the scheme of s.379G of the Migration Act is that, where an applicant nominates an authorised recipient for the receipt of correspondence, correspondence that would otherwise have been required to be directed to the applicant must be directed to the authorised recipient. Section 379G(2) makes clear that the MRT is entitled to also send correspondence to an applicant directly but the point of s.379G(1) is that unless the correspondence is properly sent to the authorised recipient, the applicant cannot be taken to have received it. The issue is academic in cases where an applicant in fact receives correspondence sent directly to him but the issue is significant where an applicant denies receipt of correspondence or there is no evidence of receipt.
As was submitted by Mr Nair in argument, the Full Federal Court in SZEEU at [181]-[182] and [214] stressed that imperative provisions of the Migration Act are required to be observed whether or not a failure to do so results in unfairness. In my view, the reasoning of Mansfield J in Makhu requires fresh consideration in conformity with the reasoning of the Full Federal Court in SZEEU and Lay Lat. In that regard, His Honour would not have been plainly wrong in concluding that a tribunal does not commit jurisdictional error by failing to comply with s.379G(1) where the tribunal properly directs correspondence directly to an applicant. That is because the mandatory requirement imposed by s.379G(1) is modified by s.379G(2). However, a tribunal does commit jurisdictional error by relying upon s.379G(2) of the Migration Act to establish deemed receipt of correspondence in circumstances where there is no proof of receipt by the applicant and s.379G(1) has not been complied with. The effect of the appointment of an authorised recipient, for the purposes of ss.379G(1) and (2) is to limit the operation of ss.379A(4) and 379C so that deemed receipt occurs only where s.379G(1) is complied with. This is reinforced by the note that appears after s.379G(1). It is significant that the note does not follow s.379G(2). However, if actual service at an alternative address in connection with the review is admitted or can be proved, then the effect of s.379G(2) is that that is sufficient.
This proposition can be tested by analogy with a substituted service order. If a substituted service order is not properly complied with, and there is no proof of personal service, how could service possibly be taken to have occurred? Likewise, if an applicant provides an authorised recipient for the service of documents, as well as a residential address, if correspondence is not properly directed to the authorised recipient, and there is no evidence of effective service at the residential address, how can the applicant be taken to have received it?
I accept that s.379G(1) is not applicable at all stages of the review process, for example at a hearing[9]. There is nothing to prevent the MRT giving a document directly to an applicant at a hearing rather than passing it through an authorised recipient. However, the scheme of s.379G plainly applies at least to correspondence, as well as to some other forms of communication[10]. In relation to correspondence, an applicant cannot be taken to have received correspondence, and the tribunal cannot be taken to have complied with an obligation to direct correspondence to an applicant, where receipt of the correspondence by the applicant is unproven, where the applicant has nominated an authorised recipient, and where the correspondence was not properly directed to the authorised recipient.
[9] see s.379G(5)
[10] see s.379G(4)
I conclude that Raphael FM was at least partly correct in Chen in declining to follow Makhu. Regrettably, like Raphael FM, I feel compelled to decline to follow it, albeit on a somewhat narrower basis of reasoning.
In the present case, the MRT apparently denied the applicant a hearing because the applicant failed to respond to the invitation to comment dated 3 November 2003[11]. I have no evidence whether the applicant did or did not receive the copy of the invitation sent to him at his last known residential address. Although the MRT decision is silent on the issue, the MRT appears to have proceeded in reliance upon s.359C of the Act, upon the basis that the MRT was entitled to proceed without an oral hearing because of the applicant’s failure to respond to the invitation to comment. There is no evidence of any communication between the applicant and the MRT following the invitation to comment. There is no evidence that the MRT knew whether or not the applicant or his nominated recipient had in fact received the invitation to comment. I infer that the MRT did not have such knowledge. It follows, and I find, that the MRT must have proceeded upon the basis that the applicant was taken to have received the invitation to comment seven working days after the dispatch of it[12]. In my view, the applicant could not be taken to have received the invitation to comment, notwithstanding that the invitation was sent to the applicant at his last residential address provided to the MRT by him in connection with the review[13] because of the operation of s.379G(1) of the Migration Act.
[11] court book, pages 61 to 62
[12] see s.379C(4)
[13] see s.379A(4)(ii)
I find that the MRT breached s.360 of the Migration Act in failing to invite the applicants to a hearing. The MRT was not relieved of its duty to invite the applicant to a hearing by s.360(2)(c) because the applicant could not be taken to have received the invitation to comment sent to him, where it was not properly directed to his authorised recipient. It is unnecessary for me to decide whether there was also a breach of s.359A.
This was a jurisdictional error that would ordinarily vitiate the MRT decision and entitle the applicants to relief in the form of constitutional writs. However, there is an issue whether relief should be withheld in the exercise of judicial discretion upon the basis that it would be futile to require a further hearing before the MRT. The issue of futility arises because the MRT refused the applicants visas upon the basis that they were not entitled to receive the class of visa they sought in the absence of an approved business sponsor. The applicant sought to address this issue by mounting an attack upon the earlier MRT decision refusing the business sponsorship application. That attack fails for a number of reasons. First, I accept Mr Lloyd’s submissions that the applicants have no standing under the Migration Act to challenge the sponsorship decision of the MRT. In particular, for the purposes of s.479, the applicants were not review applicants in relation to the sponsorship decision, and neither were they persons the subject of the decision (although they were affected by it) nor persons prescribed by the Migration Regulations. They cannot therefore institute, or be made parties to, a judicial review challenge to that sponsorship decision under the Migration Act.
Secondly, in the absence of at least a challenge to the validity of the sponsorship decision, the MRT in dealing with the visa applications was entitled to treat the sponsorship decision as a valid one. Thirdly, even if I could be persuaded that there was a jurisdictional error in the decision of the MRT in relation to the sponsorship (and I make no finding on that issue) the practical result would still be that there would be no approved sponsor. There is no evidence that the sponsorship applicant would have any interest in pursuing the matter further, whether or not there was any invalidity in the sponsorship decision. In the absence of the proposed sponsor, it would be improper for me to entertain the challenge to the sponsorship decision under the AD(JR) Act, even if it were otherwise appropriate to do so[14].
[14] Which I doubt. While in theory, at the time of this application, the AD(JR) Act applied to a migration decision that was not a privative clause decision, it would be hard to justify accepting the applicant as a “person aggrieved” for the purposes of the AD(JR) Act, either under general principles or in the face of the express provisions of the Migration Act as to standing.
I accept the Minister’s submission that, notwithstanding my finding of jurisdictional error in the decision of the MRT directly in issue, relief should be withheld in the exercise of discretion.
Accordingly, I will dismiss the application.
I will hear the parties as to costs.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 25 May 2006
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