Liu v Minister for Immigration - [2010] FMCA 485

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LIU v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 485

MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether s.379A(4) of the Migration Act 1958 (Cth) requires the same officer to date a document and dispatch it – whether registered mail is prepaid post or other prepaid means for the purposes of s.379A of the Migration Act 1958 (Cth) – whether the deeming provisions of s.394C of the Migration Act 1958 (Cth) create a rebuttable presumption of fact – whether the applicant received a letter inviting additional information in accordance with the Migration Act 1958 (Cth) – whether the Migration Review Tribunal properly exercised its discretion under s.359 of the Migration Act 1958 (Cth) – whether the Migration Review Tribunal should have made any further enquiry as to whether the applicant had received a letter inviting additional information before exercising its discretion to proceed to make its decision on the review without taking any further action.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.359; 359(2); 359C(1); 360(3); 363A; 379A; 379A(4); 379A(4)(b); 379A(4)(c); 379C; 379C(1); 379C(4); 394C; 474; 494B(4)(c); 494C(4); pt.8 div.2
Migration Regulations 1994 (Cth), reg. 1.15C

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
SZIZO v Minister for Immigration and Citizenship (2009) 238 CLR627
SZOFE v Minister for Immigration and Citizenship [2010] FCAFC 79
VEAN of 2002 vMinister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570
Tay v Minister for Immigration and Citizenship (2010) 183 FCR 163
Ball v Minister for Immigration and Citizenship [2003] FCA 699
Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 550
Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172
Re Patterson; Ex parte Taylor (2001) 207 CLR 391
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
Khant vMinister for Immigration and Citizenship [2009] FCA 1247

Applicant:

YI LIU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 111 of 2010

Judgment of:

Emmett FM

Hearing date:

8 June 2010

Date of Last Submission:

8 June 2010

Delivered at:

Sydney

Delivered on:

8 July 2010

REPRESENTATION

Counsel for the Applicant:

Mr I. G. A. Archibald

Solicitor for the Applicant:

Mr W. Huan, Hu Lawyers

Solicitors for the Respondent:

Mr A. Markus, Australian Government Solicitor
Ms. L. Buchanan, Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 111 of 2010

YI LIU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The issues in this case are:
a)Whether an invitation by the Migration Review Tribunal to the applicant to provide additional information was made according to law; and
b)Whether the Migration Review Tribunal properly exercised its discretion to decide the review without taking any further action.
The application is made pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 18 February 2010 and handed down on 21 February 2010.
The applicant in this application (“the Applicant”) is a citizen of the People’s Republic of China (“China”).
On 26 August 2008, the Applicant lodged an application for a subclass 485 Skilled Graduate (Class VC) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 24 April 2009, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s visa application because the Applicant did not satisfy the mandatory criteria for competent English.
On 12 May 2009, the Applicant lodged an application for review of the Delegate’s decision by the Migration Review Tribunal.
On 18 December 2009, the Tribunal affirmed the decision under review.
On 21 January 2010, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

The Tribunal’s review and decision

On 13 May 2009, the Tribunal wrote to the Applicant acknowledging lodgement of her application on 12 May 2009. On 17 July 2009, this letter was returned to the Tribunal marked “unclaimed”.
On 30 October 2009, the Tribunal wrote to the Applicant inviting her to provide additional information in writing pursuant to s.359 of the Act (“the Invitation Letter”).
On 14 December 2009, a “No Reply – Checklist” was completed by a case officer of the Tribunal indicating that no response had been received by or on behalf of the Applicant to the Invitation Letter sent by the Tribunal on 30 October 2009.
The Tribunal noted that it had before it the Department’s file and the Tribunal file.
The decision of the Tribunal is accurately summarised by the solicitor for the First Respondent in her written submissions as follows:
“The applicant is a citizen of the People’s Republic of China (“China”) who, on 26 August 2008, applied for a General Skilled Migration Visa (Relevant Documents “RD” 1-10). One of the criteria which the applicant was required to meet in order to obtain that visa given the skilled occupation nominated by the applicant was that she had, at the time of decision, “Competent English” as defined by regulation 1.15C of the Migration Regulations 1994 (“the Regulations”) (for the relevant criterion see cl 485.222 of the Regulations). The applicant did not provide to the Department of Immigration and Citizenship (“the Department”) evidence that she met this criterion (see RD 39, 50-57). Upon seeking review of the delegate’s decision, the applicant was invited by the Tribunal, by letter dated 30 October 2009 (“the s 359 letter”), to provide evidence that she has competent English as defined by the Regulations (RD 82-83). Upon the applicant not responding to the Tribunal’s letter seeking this information, the Tribunal decided the review without taking further action. The Tribunal found that the applicant did not have competent English and therefore did not satisfy the criterion in cl 485.222 of the Regulations. The Tribunal therefore affirmed the decision under review (RD 87-92).”

The proceeding before this Court

The Applicant was represented before this Court by Mr Archibald, of counsel.
On 14 April 2010, an amended application was filed.
At the commencement of the hearing, by consent, the Applicant was granted leave to file a further amended application. Counsel for the Applicant informed the Court that the Applicant no longer relied on Ground 3 of the amended application and relied only on Grounds 1 and 2.
Ground 1 and Ground 2 are as follows:
“ 1.The Migration Review Tribunal [“the Tribunal”] erred by reason of jurisdictional error in that the Tribunal did not have jurisdiction under sec 359C (1) of the Migration Act 1958 (“the Act”) to exercise its discretion to make the Decision on the review as the invitation in writing to give information which the Tribunal had issued to the applicant under section 359 (1) and (2) of the Act had, contrary to section 359 (3) of the Act, not been given to the applicant by one of the methods specified in section 379A of the Act.
Particulars
(a)Section 359 (3) of the Act provides that if a written invitation under section 359 (2) of the Act is given to a person other than the Secretary, the invitation must be given by one of the methods specified in section 379A of the Act.
(b)Section 379A (4) of the Act required in this case that an officer of the Tribunal dates the document comprising the invitation (“the Invitation”) and then dispatches it by prepaid post to the last residential address provided to the Tribunal by the applicant in connection with the review (“the Last Residential Address”),
(c)The Invitation was not dispatched within the meaning of sec 379A(4) of the Act by prepaid post to the Last Residential Address,
(d)The Invitation was placed in an envelope (“the Envelope”), which envelope was addressed to the Last Residential Address.
(e)The Envelope was not given by an officer of the Tribunal to Australia Post on the basis that it would be delivered “to” the Last Residential Address,
(f)It was given to Australia Post on the basis that the document would be retained at an Australia Post, Post Office and another document would be delivered by Australia Post to the Last Residential Address.
(g)Section 379A of the Act on its true construction requires that for a document to be given to a person (“the recipient”) “by” the method set out in subsection 379A (4) it must be dispatched by a method of prepaid post or other prepaid means which delivers the document “to” the Last Residential Address and not to a Post Office.
(h)Accordingly the Invitation was not dispatched to the Last Known Address within the meaning of section 379A (4) of the Act.
(i)Section 379A (4) of the Act requires that in a case where the Invitation is sent by an officer of the Tribunal that the same officer dates the Invitation Letter and then dispatches it within 3 working days (in the place of dispatch) of the date of the document; and by prepaid post or by other prepaid means to the one of the addresses set out in section 379A (4).
(j)The officer who dispatched the Invitation was not the same person as the officer who dated the document.
2.The Tribunal erred by reason of jurisdictional error in the making of the decision that being a constructive failure to exercise jurisdiction.
Particulars
(a)Following the apparent failure of the applicant to respond to the written invitation (“the Invitation Letter”) under section 359 (1) and (2) to provide information to the Tribunal, the Tribunal had a discretion pursuant to section 359 (1) and section 359C (1) of the Act to either seek more information from the applicant prior to making its decision or to make a decision on the review without seeking more information.
(b)     given the circumstances which included that:
(i)          The applicant had provided the Tribunal with her telephone number, her mobile telephone number and her email address,
(ii) By 18 December 2009 the Tribunal had not received advice from Australia Post that the Invitation Letter had been delivered by Australia Post to the applicant,
(iii) By 18 December 2009 the envelope containing the Invitation Letter had not been returned to the Tribunal by Australia Post marked “Return to Sender” when the earlier letter dated 13 May 2009 sent by registered mail by the Tribunal to the applicant had on two occasions been returned to the Tribunal marked “Return to Sender”,
(iv)    The applicant had earlier responded to the telephone call on 17 July 2009 and attended at the office of the Tribunal to collect the letter of 13 May 2009,
(v) The insignificance of the letter of 13 May 2009 compared to the Invitation Letter,
(vi) The lapse of time between the Invitation Letter and the Decision of the Tribunal,
(vii) The critical nature of the information which the Tribunal in the Invitation Letter had requested the applicant to provide,
(viii) The statutory context which:
1. gave the Tribunal the discretion to make a decision on the review (section 359C (1), and,
2. denied the applicant any entitlement to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review,
if it was the case that the applicant had been invited in writing under section 359 to give information; and had not given the information before the time for giving it had passed, and,
(ix) The statutory requirement that the exercise of the discretion was governed by section 353 and 357A(3) of the Act,
The Tribunal erred in:
(c)failing to make an obvious enquiry of the applicant about a critical fact the existence of which was easily ascertained – that being whether the applicant had knowledge of and had received the Invitation Letter and whether she had or had not obtained “Competent English”,
(d)not addressing the issue as to whether it should attempt to seek further information from the applicant,
(e) not telephoning the applicant,
(f)     not emailing the applicant,
(g)proceeding on a paucity of facts on an issue critical to the eventual finding.”

Ground 1

Counsel for the Applicant contended that the Tribunal had failed to comply with s.379C of the Act in giving to the Applicant the Invitation Letter. In support of that contention, counsel made the following submissions:
i)Section 379A(4) of the Act requires that the officer of the Tribunal who dated the Invitation Letter must also dispatch it, relevantly, by prepaid post or other prepaid means, to the last residential address provided to the Tribunal by the Applicant in connection with the review (“the First Submission”).
ii)Section 379A(4) of the Act requires that the Invitation Letter must be dispatched to the last residential address whereas, the Tribunal in this case sent the Invitation Letter to the Applicant by registered mail, with the effect that it was dispatched to the relevant post office, rather than to the Applicant’s last residential address (“the Second Submission”).
Section 359, relevantly, is as follows:
“(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
(3) If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:
(a) except where paragraph (b) applies--by one of the methods specified in section 379A; or
(b) if the invitation is given to a person in immigration detention--by a method prescribed for the purposes of giving documents to such a person.” (Emphasis added)
Section 379A(4) is as follows:
“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; or
(iii) if the recipient is a minor--the last address for a carer of the minor that is known by the member, Registrar, Deputy Registrar or other officer.” (Emphasis added)
Section 379C(1) and (4) are relevantly as follows:
“(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).
…
(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; “
The First Submission and the Second Submission are addressed below.

The First Submission - Section 379A(4) of the Act requires that the officer of the Tribunal who dated the Invitation Letter must also dispatch it, relevantly, by prepaid post, to the last residential address provided to the Tribunal by the Applicant in connection with the review.

In relation to the First Submission above, counsel for the Applicant submitted that use of the word “then” in association with the words “another officer” in s.379A(4), properly construed, required that the same officer who dated the Invitation Letter also dispatch the document.
The solicitor for the First Respondent, Mr Markus, submitted that the words “another officer” are no more than a reference to those officers of the Tribunal who are not the Registrar or Deputy Registrar. I agree, although that does not deal entirely with the Applicant’s contention.
For the reasons below, the construction contended for by the Applicant does not support the purpose or object of the section in the scheme of the legislation.
A particular provision of a statute should be interpreted in the light of the purpose of the statute. The purpose of legislation is ascertained by reference to the language of the statute, its subject matter and objects, and the consequence for the parties of holding every act done in breach of the conditions. However, it is also recognised that there is no decisive rule that can be applied, neither is there “a ranking of relevant factors or categories to give guidance on the issue.” (Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [91]).
It is clear that the purpose of s.379A(4) is to ensure that a document, such as the Invitation Letter, is sent within 3 working days of the date of the document. The very fact that the dating of the document could precede its dispatch by 3 days, makes it most unlikely that the legislature intended that it be the same person who dated the document who must then dispatch the document or that any invalidity should flow if the same person who dated the document did not dispatch it.
Consideration must be given to “whether there is to be discerned from the legislative scheme an intention to invalidate in consequence of non-compliance with any of the obligations dealing with the manner of giving and receiving review documents.” (see SZIZO v Minister for Immigration and Citizenship (2009) 238 CLR 627 (“SZIZO”) at [32]-[34]). However, it is not the “manner” in which letters are dispatched from the Tribunal that is of importance. Rather, it is the obligation to ensure that any document is dispatched from the Tribunal within 3 days of the date of the document.
Whilst it may be that dispatch by the author of the document would discharge the Tribunal’s obligations, it does not follow that any departure from that course would result in invalidity “without consideration of the extent and consequence of the departure” (see SZIZO at [35]; SZOFE v Minister for Immigration and Citizenship [2010] FCAFC 79 at [30]).
In the circumstances, there is no purpose served by a requirement that the same person who dates the document must also dispatch the document. What is relevant is that the letter is dated by an officer of the Tribunal and dispatched within 3 days of the date of the document. In other words, the purpose of s.379A(4) is to ensure that a document, such as the Invitation Letter, is dispatched within 3 days of the date of the document to the relevant address.
The object of the section is to ensure that a document, such as the Invitation Letter, from the Tribunal to a person such as the Applicant is not left in the Tribunal’s offices without responsibility within the Tribunal for its dispatch. The section works hand in hand with the deeming provision in s.379C(4) of the Act, which provides that a document dispatched in Australia to an address in Australia in accordance with s.379A(4) is taken to have been received 7 working days after the date of the document.
The evidence provided by the First Respondent as to the Tribunal’s practice in dispatching documents makes clear that the person who dated the letter took significant steps in moving the letter towards dispatch. In accordance with the Tribunal’s practice, that person:
a)placed the letter in an envelope,
b)addressed the envelope to the Applicant’s last address for service,
c)placed a registered post sticker on the envelope and the corresponding bar code on a copy of the letter,
d)wrote those details on a “Registered Post Log Sheet,” and
e)placed the envelope in an out tray for collection by the Tribunal mail officer.

In accordance with that practice, when the Invitation Letter was collected by the Tribunal mail officer, it was taken to the mail room, the details checked and it was then collected by Australia Post.
The First Respondent did not wish to contend at what point prior to collection by Australia Post, dispatch of the Invitation Letter may have been effected, or that it was effected any time prior to collection by Australia Post. For that reason it is not necessary to consider the meaning of “dispatch” in the context of the Act. In the circumstances, the First Respondent conceded that the Tribunal officer who dated the Invitation Letter did not also “dispatch” it.
In relation to the dispatch of the Invitation Letter, the First Respondent read the affidavit of Yu Fung Nang, affirmed 14 May 2010, without objection by the Applicant. The Applicant did not seek to cross-examine Mr Nang. Mr Nang deposed that, according to electronic records held by the Tribunal, on 27 October 2009, he was instructed by the presiding Tribunal Member to draft the Invitation Letter to Ms Liu. Mr Nang affirmed that, on 28 October 2009, he drafted the Invitation Letter which was settled by the Tribunal Member on 30 October 2009. Mr Nang affirmed that he then signed the Invitation Letter on 30 October 2009 and that his usual practice from that point on was to carry out the following steps:
“4.It is my practice to then do the following with letters of this kind:
4.1 I make a photocopy of the signed letter.
4.2I put the original signed letter into an envelope with the addressee’s name and address printed on the envelope.
4.3I place a “registered post sticker” on the addressed envelope. The sticker contains a bar code and a number on it. Each sticker has a corresponding sticker with the same number on it labelled “Registered Post – Sender to Keep”. I place the corresponding sticker on the photocopy of the signed letter.
4.4I write on a “registered post log sheet” the details of the name and address of the person to whom the letter is being sent and the number contained on the registered post sticker that I have placed on the envelope.
4.5I put the envelope in an out tray for correspondence to await collection by a Tribunal mail Officer.
4.6I put the photocopy of the letter on the hard copy file held by the Tribunal and enter into Casemate, the Tribunal’s electronic file management system, details of the date when the letter was sent and the number on the registered post sticker for that letter.
4.7 I do these tasks on the same day that I sign the letter.
5.Tribunal Officers are managed in teams. My team is called Team A. Each team has a “registered post log sheet” into which Tribunal officers enter details of mail that is sent by registered post. Log sheets are carbon copied in triplicate. The postal log sheet is kept next to the team’s out tray where we place outgoing mail.
6.A Tribunal mail officer collects the mail to be posted at around 3pm each day. Shortly before that time, one of the Tribunal officers in the team will check that all the letters listed in the “registered post log sheet” are ready to be posted and that the details in the log sheet have been entered correctly. The officer then takes the mail along with the “registered post log sheet” to a central collection point for all incoming and outgoing mail on the floor of the building for collection by a mail officer.”
Mr Nang affirmed that he believed that he carried out the process deposed to above and that he wrote the name and address of Ms Liu and the registered post number on the registered post log sheet.
In the circumstances, I accept that Mr Nang undertook the steps to which he has deposed in his affidavit in accordance with his usual practice.
The First Respondent also read without objection the affidavit of Rachel Collings, affirmed 14 May 2010, who is employed by the Tribunal as a “Hearing/Mail Officer”. In cross-examination, Ms Collings gave evidence that it was not the practice in the Tribunal at that time for the mail officer to confirm delivery.
Otherwise, Ms Collings deposed that her duties included “managing daily incoming mail and couriers for the Tribunal, including the internal delivery and collection of mail and arranging for the external delivery of mail.” Ms Collings then deposed to her practice as follows:
“3.I collect internal and external mail from pigeon holes located on each floor of the Tribunal’s office. The mail I collect is already contained in addressed envelopes and each team will have bundled their mail together with an elastic band along with an Australia Post registered post log sheet. For any item to be sent by registered post, staff within each team will have recorded the details of each item to be posted on the registered post log sheet which has carbon copied pages which are in triplicate. When I collect the mail I collect the bundled envelopes with the postal log sheets and take these to the mail room.
4.For any item to be sent by registered post, I check that the registered post number on the envelope is the same as that recorded in the postal log sheets. When I am satisfied that what is recorded on the pages in the postal log sheets is correct, I sign each postal log sheet where it states “Sender’s Signature”.
5.After the mail officers have checked the mail against the details recorded on the postal log sheets for each team, we add the total number of envelopes to be posted and record that number onto a further Australia Post log book.
6.Staff from Australia Post collect the items to be posted from the office of the Tribunal between approximately 3.30pm and 4pm each day. Australia Post also collect the completed postal log sheets. One of the carbon copies of each sheet is returned to the Tribunal a few days after collection having been stamped by Australia Post with a date stamp.”
Ms Collings then affirmed that she signed the Australia Post registered post log sheet as the sender of the Invitation Letter. Ms Collings also deposed to the fact that she believed she carried out the practice which is referred to above.
I accept the evidence of Mr Nang and Ms Collings.
I do not accept the submission by counsel for the Applicant that it was necessary for Mr Nang to carry out the steps undertaken by Ms Collings in order to comply with s.379A(4) of the Act. In my view, s.379A(4) of the Act does not require that the officer who signed a letter, such as the Invitation Letter, was required to be the same officer who gave the Invitation Letter to Australia Post when it came to collect the mail. I accept the submission of the First Respondent’s solicitor that there is absolutely no purpose served in a requirement that the officer signing and dating a letter such as the Invitation Letter must also be the officer who gives it to Australia Post, particularly, where the legislation provides that it may it be dispatched for up to 3 working days after the signing of the letter.
In any event, even if the same officer who dated the letter is required to dispatch the letter, any failure by the Applicant to receive the Invitation Letter was in no part brought about by the fact that Mr Nang signed the Invitation Letter. Ms Collings physically gave it to Australia Post, having collected it from Mr Nang’s out tray. In those circumstances, even if s.379A of the Act requires the officer who dated the Invitation Letter also to dispatch it and was an error for the Tribunal to have failed to ensure that was so, it was not an error that goes to the Tribunal’s jurisdiction.
Accordingly, this part of Ground 1 is not made out.

The Second Submission - Section 379A(4) of the Act requires that the Invitation Letter must be dispatched to the last residential address whereas, the Tribunal in this case sent the Invitation Letter to the Applicant by registered mail, with the effect that it was dispatched to the relevant post office, rather than to the Applicant’s last residential address.

In relation to the Second Submission above, counsel for the Applicant contended that the Invitation Letter was not sent to the Applicant’s last residential address as required by s.379A(4)(c) of the Act because it was sent by registered post. Counsel for the Applicant submitted that registered post has the effect of the Applicant simply receiving a card advising the Applicant of an article for collection at the local post office, rather than delivering the Invitation Letter to the Applicant directly. Counsel for the Applicant also submitted that s.379C of the Act creates a rebuttable presumption of deemed receipt.

Is registered mail prepaid post or other prepaid means

Counsel for the Applicant further submitted that prepaid post or other prepaid means did not include registered post. However, in VEAN of 2002 vMinister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570, the Full Court of the Federal Court of Australia assumed that the use of registered post was consistent with s.494B(4)(c) (being the equivalent to s.379A(4)(c)). That approach was adopted by the Full Court of the Federal Court of Australia in Tay v Minister for Immigration and Citizenship (2010) 183 FCR 163 (“Tay”) at [15].
In Ball v Minister for Immigration and Citizenship [2003] FCA 699 at [25], Ryan J stated that:
“Registered post is also “prepaid post” or “other prepaid means” and, because it involves delivery of the article personally to the addressee or somebody who signs when collecting it on his or her behalf, provides a greater degree of assurance that the article has, or will, come to the addressee’s notice.”
In light of the authorities referred to above, it is clear that registered post is a method of prepaid post or other prepaid means for the purposes of s.379A(4)(c) of the Act.

How was the Invitation Letter delivered by Australia Post

Without making any further submissions on the issues, counsel for the Applicant invited the Court to take judicial notice of the fact that, if a letter is sent by registered post, then that letter is sent to the local post office of the recipient and a card is then delivered to the recipient notifying the recipient that an article is at the local post office for collection. I do not propose to do so. In my view, that proposition is a matter for evidence.
In Exhibit 5R, there is a notation by the Tribunal given to the Applicant about Tribunal procedures for review applicants that states as follows:
“IMPORTANT IMFORMATION ABOUT RECEIVING LETTERS FROM THE TRIBUNAL
The Tribunal may send important letters to you by Registered Post. If a member of your household is not at home when the postal officer attempts to deliver the letter, an Australia Post card will be left in your letterbox requesting that the letter be collected from a local post office. A picture of what the card may look like is on the reverse (note that not all cards look exactly the same). If you receive a card like this in the mail, you should go to the Australia Post office stated on the card as soon as possible to collect your letter. You will need to take identification with you.
The letter may contain important information that you must respond to by a certain date. If the Tribunal does not receive a response to important correspondence, your case may be decided without further notice. It is therefore important that you collect your letter without delay.
Someone from your household may collect the letter on your behalf, provided he or she shows identification that confirms that he or she resides at your address.” (Emphasis added)
The picture of the card referred to in the information above, states as follows:
“PLEASE COLLECT THIS ARTICLE WITHIN 5 WORKING DAYS.
Sorry, we missed you between ⁬7.00am – 10.00am ⁬10.00am – 2.00pm ⁬2.00pm – 4.00pm
⁬After 4pm on …/…/… We tried to deliver a Postal Article to:
Full Name:……………………………………………………………
Address:………………………………….Suburb:…………………
You can collect your article after ⁬10.00am ⁬2.00pm ⁬4.30pm from:”
Those documents clearly suggest that the Applicant’s local post office would first have attempted to deliver the Invitation Letter to the Applicant’s address and it was only when the Applicant was found not to be at home that a card, in the form above, would be left for the Applicant notifying her that the Invitation Letter was available for collection at the post office.
However, there were some documents produced by Australia Post pursuant to a subpoena issued by the Applicant. The documents were tendered by the First Respondent and formed part of Exhibit 9R. Neither party made any submission about what the Court might infer from that material. The documents do not make clear that the steps foreshadowed by the Tribunal in the documents referred to above were in fact carried out.
In the circumstances, I am unable to determine the manner in which either Australia Post, or the local post office relevant to the Applicant, dealt with letters such as the Invitation Letter, if sent by registered post. In any event, the Invitation Letter was clearly addressed to the Applicant at her relevant address. In the circumstances, the Invitation Letter was dispatched to the Applicant in accordance with s.379A(4) of the Act.

Does s.379C(4) create a rebuttable presumption of receipt of a document

However, I am satisfied that registered post is a form of prepaid post or other prepaid means for the purposes of s.379A(4)(b) of the Act. Moreover, the legislation is primarily concerned with dispatch rather that receipt. Section 379C(4) of the Act deems receipt of a document sent by prepaid post or other prepaid means 7 working days after the date of the document. The Applicant contended that she did not receive the Invitation Letter and that the effect of s.379C(4) of the Act is to create a rebuttable presumption.
Counsel for the Applicant submitted that, because of the deeming effect of s.379C(4) of the Act receipt was deemed to have occurred only until the contrary is proved. However, that contention is not supported by the authorities. In considering s.494C(4) of the Act, which is in the same terms as s.379C(4) of the Act, Spender J stated in Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 550 at [69]:
“The person is "taken to have received the document", in the circumstances of this case, seven working days after the date of the document. In my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification. There is nothing to indicate that the effect of the subsection is to be read as if there was a proviso that the person was not taken to have received the document where the documents had been returned undelivered to the sender within seven working days after the date of the document, or that the subsection operates in its terms only "until the contrary is proved".
That approach was cited with approval by the Full Court of the Federal Court in Xie v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCAFC 172 (“Xie”) at [14]. In Tay, the Full Court of the Federal Court concluded that Xie is correct with the effect that s.379C(4) of the Act does not create a rebuttable presumption of fact.

Was a card delivered by Australia Post to the Applicant notifying her of the Invitation Letter

In any event, for the reasons below, I find that Australia Post delivered to the Applicant at her relevant address a card informing her that an article, namely the Invitation Letter, was available for collection.
In oral evidence to this Court, the Applicant said she did not receive a card notifying her of the Invitation Letter. However, in an affidavit, “Sworn/Affirmed” 25 March 2010, the Applicant stated that she recollected that she did receive a notice of a postal article to be collected from the post office. However, she could not recollect when that was.
In cross-examination, the Applicant agreed that she had been receiving mail articles at her address on a regular basis. She agreed that she had received registered articles in the mail. The Applicant then agreed that on occasions, she had received a card notifying her of articles for collection. It was then put to the Applicant that, on a number of occasions, she received a card and did not collect the article. The Applicant gave sworn evidence that such an event never happened. The Applicant stated that she did not recall ever having received cards from the post office in May 2009 and which she ignored. Mr Markus then asked the Applicant questions about letters addressed to the Applicant in May 2009 that were returned to the Tribunal as unclaimed. Mr Markus asked the Applicant if she recalled the Tribunal contacting her in July 2009 to explain to her that there were a number of articles that had been returned to the Tribunal unclaimed and that it was important for her to go and collect letters from the post office because otherwise they were returned to sender. The Applicant agreed that she remembered the telephone call but did not recall the explanation offered by the officer referred to above. Mr Markus then asked the Applicant if she recalled during that telephone conversation telling the officer that she did not collect the letter because it was raining. The Applicant said that she did recall saying that.
The Applicant eventually agreed that she had ignored cards notifying her of registered articles for collection when it was raining. It was then put to the Applicant that she had earlier said that she had never ignored notifications to her of registered mail articles and that was untrue. The Applicant was uncooperative, unfrank and unresponsive in her answers. The Applicant regularly had to be reminded to listen carefully to the questions that were asked of her and try to answer only those questions. She was quick to depart from evidence she had earlier given where she appeared to feel that repeating that evidence may not assist her in answer to other questions. The Applicant answered that she did not recollect when asked any question that she appeared to think may be unhelpful to her case.
I found the Applicant to be an entirely unsatisfactory witness and I place no weight at all on her evidence insofar as she stated that she had never received a card from the post office notifying her of a registered article for collection. The Applicant made little effort to listen to the questions she was asked or to answer them frankly or responsively.
In the circumstances, as stated above, I find that the post office delivered a card to the Applicant’s address notifying the Applicant of a registered article for collection, being the Invitation Letter dated 30 October 2009. Exhibit 9R contained a copy of such a card dated 2 November 2009 identifying the registered post log number of the Invitation Letter and another registered article. The card was addressed to the Applicant at her relevant address.
In circumstances where the Applicant acknowledged that she had received cards notifying her of articles for collection on 14 May 2009 and 4 June 2009, and in light of the evidence before the Court in Exhibit 5R of the information and draft postal card relating to registered mail, I draw the inference that a card was left on 2 November 2009 at the Applicant’s residential address which notified the Applicant that the Invitation Letter and another article were available for collection.
In the circumstances, the Tribunal gave the Invitation Letter to the Applicant in accordance with the legislative scheme.
Accordingly, Ground 1 is not made out.

Ground 2

In support of Ground 2, counsel for the Applicant contended that the Tribunal had failed properly to exercise its discretion under s.359C(1) of the Act to make a decision on the review without taking any further action to obtain the Applicant’s views on the information. Counsel for the Applicant submitted that the Tribunal did not exercise jurisdiction because it did not take any further steps to determine whether or not the Invitation Letter had been received by the Applicant. Counsel for the Applicant submitted that the Applicant had given her address and telephone number and had visited the Tribunal in July 2009 to collect letters which had been otherwise returned to the Tribunal.

Counsel for the Applicant referred to the fact that the Applicant had responded to the contact from the officer of the Tribunal on 17 July 2009 to attend the offices to collect those letters.
Counsel also referred to the fact that the Applicant told the Tribunal that she would be absent for some period of time and that the Tribunal had had no difficulty in telephoning her as she had provided 2 telephone numbers and an email address. In other words, counsel for the Applicant submitted that the Applicant was readily contactable and kept the Tribunal informed of her movements.
That may be so. However, the Tribunal was aware that past correspondence had been returned unclaimed and that the Applicant had not contacted the Tribunal about those letters. The Tribunal knew that it was only after contact was made by the Tribunal with the Applicant on 17 July 2009 that she attended the Tribunal’s offices to collect the letters. I do not accept the Applicant’s evidence that she telephoned the Tribunal immediately following receipt of the card from the post office. There is no other file note in Exhibit 5R to support that assertion. Neither did counsel for the Applicant suggest Exhibit 5R was not a complete record of the Tribunal’s records of the Applicant’s review. The Applicant issued Subpoenas, Notices to Produce and Notices to Admit Facts. None was directed to supporting a submission that Exhibit 5R was not a complete record of the Tribunal’s review. Exhibit 5R makes clear that contact was initiated by the Tribunal following return of the unclaimed letters and thereafter the Applicant attended the Tribunal’s offices to collect those letters.
Counsel for the Applicant referred the Court to Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [189], in support of the proposition that there was a constructive failure to exercise the power reposed in the Tribunal, if the Tribunal precluded itself from exercising the discretion because it “misconceived what in law was involved in the exercise of that power.”
However, a fair reading of the Tribunal’s decision record makes clear that the Tribunal did not misconceive what is involved at law in the exercise of its discretion to proceed to make a decision on the review without taking any further action to enable the Applicant to respond to the Invitation Letter or without inviting the Applicant to come to a hearing. Relevantly, the Tribunal stated as follows:
“19.On 30 October 2009, the Tribunal sent the applicant an invitation to give additional information under subsection 359(2) of the Act. That information was evidence that she has Competent English at the time of decision. The invitation was sent to the applicant’s residential address, which was the last address for service provided to the Tribunal. The applicant did not respond to this letter or provide the additional information
20.The Tribunal is satisfied that the applicant was sent an invitation to give additional information under subsection 359(2) of the Act. The invitation, dated 30 October 2009, was sent to the last address for service provided by the applicant in connection with her application for review. The Tribunal is satisfied that the invitation was properly sent to the review applicant by one of the methods specified by section 379A of the Act. An examination of the Tribunal’s file shows that the applicant did not provide the additional information. The Tribunal finds that the applicant did not provide the additional information within the prescribed period.
21.Where an applicant is invited to provide additional information under subsection 359(2) and fails to provide that 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 applicant’s views on the information (subsection 359C(1)). In these circumstances, the applicant is not entitled to appear before the Tribunal (subsection 360(3) and section 363A). As the applicant did not provide the additional information within the prescribed period, the Tribunal will proceed to make a decision on the review without taking further action to obtain the applicant’s views on the information, and without inviting the review applicant to appear before the Tribunal.”
It was, or should have been, clear to the Applicant that the Delegate found that she had failed to demonstrate that she had a competent level of English such as to entitle her to the grant of the visa she sought. The Delegate spelt out in its reasons for decision that she had not supplied an IELTS test report with a score of at least 6 for each of the four test components. The Delegate’s decision made clear that competent English was a mandatory requirement of the visa for which she had applied.
The Invitation Letter invited the Applicant to provide information in writing that she had competent English. The Invitation Letter set out the requirements of reg.1.15C in relation to competent English including that competent English could be satisfied by an IELTS score of at least 6 for each of the four components of speaking, reading, writing and listening. The Invitation Letter sought the information by 8 December 2009. No further communication was received by the Tribunal from the Applicant in relation to any attempt to meet the requirements of her visa from the date of the lodging by the Applicant of her application for review by the Tribunal on 12 May 2009. In the circumstances, there was nothing before the Tribunal to indicate that it needed to consider whether further enquiries needed to be made.
To the extent that counsel for the Applicant’s written submissions suggest that the Tribunal may have been uncertain as to whether the Applicant received the Tribunal Letter, I reject such a submission. There was no reason for the Tribunal to consider there was any uncertainty as to whether or not the Applicant had received the Invitation Letter. The Invitation Letter had not been returned unclaimed to the Tribunal, as had previous letters. The Tribunal was not otherwise obliged to make any further inquiry of the Applicant before making its decision on the review.
I reject entirely the submission by the Applicant that the circumstances of this case suggested that the Tribunal was obliged to make further enquiry of the Applicant in accordance with the principles referred to in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 (“SZIAI”). Similarly I reject the Applicant’s submission that the Tribunal felt that it had no power to invite the Applicant to appear before it, as was the case in Khant vMinister for Immigration and Citizenship [2009] FCA 1247. A fair reading of the Tribunal’s decision in the case before this Court does not suggest for a moment that the Tribunal was under any mistake as to its entitlements to exercise its discretion in favour of the Applicant to give her further time. In any event, the High Court has made quite clear that the Tribunal’s duty is to review rather than to enquire (SZIAI at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). I accept the submission by the solicitor for the First Respondent that this is not such a case.
In the circumstances, the Tribunal was entitled to exercise its discretion as it did.
Accordingly, Ground 2 is rejected.

Conclusion

The Tribunal invited the Applicant to provide additional information in accordance with the Act. It received no response from the Applicant in the time specified in its Invitation Letter. The Tribunal was therefore entitled to proceed to make its decision on the review without taking any further action.
Having properly exercised its discretion to proceed to make a decision on the review without taking any further action to invite the Applicant to provide additional information and without inviting the review Applicant to appear before the Tribunal, the Tribunal proceeded to consider the mandatory requirements of the Applicant’s visa. It is not suggested by the Applicant that competent English was not such a requirement. Neither is it suggested by the Applicant that there was any evidence before the Tribunal to enable it to be satisfied that the Applicant has competent English for the purposes of the visa requirements. In the circumstances, the Tribunal was not satisfied that the Applicant had competent English. That finding was open to the Tribunal on the evidence and material before it and for the reasons it gave.
In the circumstances, the Tribunal’s decision to affirm the decision under review is without error.
Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere with the decision of the Tribunal.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate:

Date: 8 July 2010