Lu v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 181
•5 FEBRUARY 2004
FEDERAL COURT OF AUSTRALIA
Lu v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 181BIN LU & ORS v THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N935 OF 2003
EMMETT J
5 FEBRUARY 2004
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N935 OF 2003
BETWEEN:
BIN LU
FIRST APPLICANTXUE XUE LI
SECOND APPLICANTRONG BANG LU
THIRD APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
EMMETT J
DATE OF ORDER:
5 FEBRUARY 2004
WHERE MADE:
SYDNEY
THE COURT:
1.DECLARES that the application for review lodged with the Migration Review Tribunal on behalf of the applicants on 27 August 2002 was given to the Tribunal within the time limited by s 347(1)(b) of the Migration Act 1958;
2. ORDERS that the respondent pay one-half of the applicants’ costs of the proceeding.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N935 OF 2003
BETWEEN:
BIN LU
FIRST APPLICANTXUE XUE LI
SECOND APPLICANTRONG BANG LU
THIRD APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
EMMETT J
DATE:
5 FEBRUARY 2004
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The first applicant arrived in Australia on 12 July 2001 pursuant to a subclass 457 visa issued under the Migration Act 1958 (Cth) (‘the Act’). He was accompanied by his wife, the second applicant, and his infant child, the third applicant. The second and third applicants also travelled to Australia on subclass 457 visas. On 12 March 2002 a delegate of the respondent, the Minister for Immigration & Multicultural & Indigenous Affairs (‘the Minister’), decided to cancel the visas of the applicants. On 27 August 2002 the applicants lodged an application for review by the Migration Review Tribunal (‘the Tribunal’) of the delegate’s decision. On 6 August 2003 the Tribunal made a decision that the application for review was ‘ineligible’ because the review application was not lodged within the prescribed period for applying for review. The applicants now challenge that decision in this Court by way of application for a prerogative writ of certiorai.
CANCELLATION OF VISAS
A subclass 457 visa was issued to the first applicant with respect to proposed employment with Australian Everclear Pty Limited (‘Everclear’). One of the circumstances that permitted the grant of the visa to the first applicant was that he be employed by Everclear. Under s 116(1)(a) of the Act, the Minister may cancel a visa if she is satisfied that any circumstances that permitted the grant of the visa no longer exist.
As part of the program of the Department of Immigration & Multicultural & Indigenous Affairs (‘DIMIA’) in relation to the monitoring of business sponsors, the officers of DIMIA visited Everclear on 12 December 2001, 17 January 2002, and 31 January 2002. The departmental officers were informed by Ms May Chen, a director of Everclear, that the first applicant’s services with Everclear had been terminated with effect from 30 January 2002. A departmental minute of 1 February 2002 records that the first applicant’s whereabouts were not exactly known and that Ms Chen had claimed that the only contact established with the first applicant was by way of a mobile phone. The minute ended as follows:
‘In relation to the service of the Notice of Intention to Consider the Cancellation of a Temporary Visa the only postal address held by this office for [the first applicant] is PO Box… NT 0830. However, you may be able to secure a more recent address for [the first applicant] through contact with him on the M/phone number given above or his M/phone network carrier.’
On 8 February 2002, Everclear sent to DIMIA a letter signed by Ms Chen saying:
‘Further to our phone conversation this morning, I wish to advise you that [the first applicant] provided his home address as follows:
3A Hercules Street Chatswood NSW 2067’
Subsequently, the Minister’s delegate sent a letter dated 18 February 2002 addressed to the first applicant at 3A Hercules Street, Chatswood, NSW, 2067. The letter said, inter alia:
‘… please find enclosed a copy of a Notice of Intention to Consider Cancellation of your visa (the notice). Cancellation of your visa is being considered under the provisions of s 116(1)(a) of the Migration Act 1958 (the Act), in that the circumstances which permitted the grant of your visa no longer exist, i.e. you are no longer employed by Australian Everclear P/L. Should your visa be cancelled, you and your family will be required to leave Australia as soon as possible.
The Notice provides an opportunity for your to comment if you believe that grounds to cancel your visa do or do not exist and why you think that your visa should not be cancelled…
The Department has attempted to contact you on your supplied mobile telephone number… and has left messages/SMS text messages on several occasions, requesting you contact the Department in relation to this matter. To date you have failed to respond to these requests. Your former employer advised us that you were spoken to in Sydney recently and that you supplied your former employer with the address on this letter as your residential address. Accordingly, this Notice is sent to that address by way of notification of our intention to consider cancelling your visa.’
Attached to the letter was a formal notice of intention to consider cancelling the first applicant’s visa.
On 12 March 2002 the Minister’s delegate decided to cancel the first applicant’s visa pursuant to s 116(1)(a) of the Act. The record of the decision recorded that the first applicant had not responded to the letter of 18 February 2002 and had not made himself available for interview. The delegate then sent a letter dated 12 March 2002 addressed to the first applicant at 3A Hercules Street, Chatswood, NSW, 2067. The letter relevantly said:
‘On 18 February 2002 the Department notified you of its intention to cancel your visa. You did not reply. Your lack of reply has been taken into account in making this decision.
The Department has decided that there is a ground for cancellation of your visa under paragraph 116(1)(a) of the Migration Act 1958 because the circumstances which permitted the grant of your visa no longer exist, in that your employment with AUSTRALIAN EVERCLEAR P/L has been terminated.
You visa was therefore cancelled on 12 March 2002. No reasons were given for not cancelling your visa and therefore the Department was not made aware of any circumstances that could be taken into account that may have been sufficient to outweigh the existence of the ground for cancellation.
A copy of the decision record is attached.
…’THE TRIBUNAL’S DECISION
In its reasons for deciding that the application for review of the decision to cancel the visas was ‘ineligible’, the Tribunal found that there was no evidence that the applicants had ever resided at the address in Hercules Street, Chatswood and found that that address was not the correct residential address of the applicants. The Tribunal found that there was no evidence before it that the applicants at any time provided DIMIA with any residential or postal address in Australia, other than the postal address of Everclear in Darwin, Northern Territory. The Tribunal found that the only address provided to DIMIA by the applicant was Everclear’s post office box address in Darwin.
The Tribunal also found there was no evidence before DIMIA that Everclear, when it provided the address in Hercules Street, Chatswood, had provided an incorrect address and that there was no indication that it had provided a false address deliberately. However, the Tribunal found that it was reasonable for DIMIA to rely on the address provided by Everclear and that the Department sent the relevant letters to the Hercules Street, Chatswood address on the basis, reasonably held, that that address was the current residential address of the applicants.
RELEVANT STATUTORY PROVISIONS
Section 127(1) of the Act provides that, when the Minister decides to cancel a visa, she is to notify the visa holder of the decision in the prescribed way. However, under s 127(3), failure to give notification of the decision does not affect the validity of the decision.
Regulation 2.55 applies to the giving of a document to a holder of a visa relating to the proposed cancellation or the cancellation of a visa under the Act. Regulation 2.55(3) relevantly provides that the Minister must give such a document in one of the ways set out in paragraphs (a), (b) or (c). Under Regulation 2.55(3)(c) one of the ways in which the Minister may give such a document is:
‘(c) by dating it, and then despatching it:
(i)within three working days (in the place of despatch) of the date of the document; and
(ii) by prepaid post or by other prepaid means;
to the person’s last residential address, business address or post box address known to the Minister.’
Under Regulation 2.55(7) if the Minister gives a document to a person by despatching it by prepaid post or by other prepaid means, the person is taken to have received the document, relevantly, (in the place of that address) seven days after the date of the document.
Under s 347(1)(b) of the Act, an application for review of an MRT reviewable decision must be given to the Tribunal within the prescribed period. The delegate’s decision to cancel the applicants’ visas was an MRT reviewable decision. Under Regulation 4.10(1)(b) the prescribed period in which an application for review of an MRT reviewable decision must be given to the Tribunal starts when the applicant receives notice of the decision and ends at the end of 7 working days after the day on which the notice is received.
THE ISSUES
The Minister contends, and the Tribunal held, that, by the operation of Regulation 2.55(7), the first applicant is taken to have received the letter of 12 March 2002 seven working days after that date. Since the application for review by the Tribunal was not made until 27 August 2002, that was clearly outside the period that ended at the end of seven working days after the date when the notice of cancellation is taken to have been received. Accordingly, so the Minister contends, and the Tribunal held, the Tribunal had no power to review the delegate’s decision.
The first applicant did not in fact receive actual notice of the delegate’s decision to cancel his visa until 19 August 2002. On that day, a copy of the decision was sent to his migration agent by facsimile. The first applicant says that this was the first time the decision was seen by him or anyone authorised by him to receive it. He says that, since the application for review was lodged with the Tribunal on 27 August 2002, it was given to the Tribunal within the prescribed period for the purposes of s 347(1)(b), namely within seven working days from the day on which he received notice.
The question, therefore, is whether the first applicant is to be taken to have received the notice on 19 March 2002 notwithstanding that he did not in fact receive it until 19 August 2002. The applicants seek to impugn the Tribunal’s decision on two grounds as follows:
(1)the Tribunal failed to identify and address issues essential to its decision, namely, whether Everclear deliberately supplied a false address to the Minister and, if so, whether the notification of the decision to cancel the first applicant’s visa was thereby nullified;
(2)the Tribunal misinterpreted Regulation 2.55(3) in holding that 3A Hercules Street, Chatswood was the first applicant’s last residential address known to the Minister, in circumstances where the first applicant had never lived at that address.
FRAUD
The applicants contend that, if it were established that the address of 3A Hercules Street, Chatswood was provided by Everclear or Ms Chen to the Minister, knowing that that was a false address and that it was provided with the intention of inducing the Minister to act on the basis that that was the residential address of the applicants, that would have constituted fraud and would have vitiated any notice given to the applicants at that address in reliance upon such a fraudulent statement.
The applicants did not seek to establish that there was fraud on the part of Everclear or Ms Chen. Rather, their contention was limited to the proposition that it was incumbent upon the Tribunal to consider that question as an issue that fairly arose from the facts that it found. That is to say, the applicants did not seek relief in relation to the alleged fraud but said simply that the Tribunal was obliged to examine the question of whether there was fraud.
The applicants did not make any express submission to the Tribunal that there had been fraudulent conduct on the part of Everclear or Ms Chen. The Tribunal, in its reasons, accepted that the applicants had claimed that Everclear had provided a false address deliberately. However, there was no submission made by either of the firms of solicitors who acted for the applicants that the conduct of Everclear amounted to fraud that vitiated the notice of 12 March 2002, such that r 2.55(7) had no application.
The application to the Tribunal for review was accompanied by a letter from Coelho & Coelho, Solicitors, of 22 August 2002. That letter contained the following:
‘Our instructions are as follows:
(1)the mobile telephone number… referred to in the DIMIA letter of 18 February is not and has never been [the first applicant’s] mobile telephone number…
(2)the address given… by the employer referred to in the letter dated 18 February 2002 is wrong and misleading…
(3)[the first applicant, his wife and sister] purchased a house at 26 Gibbes Street, Chatswood late last year where they have lived with their 2 year old son… No DIMIA notices were received at this address.
(4)Mr Fei Xie who was [the first applicant’s] employer and the principal of Everclear lives close by at 12 Chatswood Avenue, Chatswood and has visited [the first applicant’s] home at 26 Gibbes Street on many occasions.
(5)…[the first applicant’s] employer has given DIMIA’s compliance section the wrong address.
(6)…
(7)…
(8)…’
Subsequently, Coelho & Coelho wrote again on 3 September 2002 reiterating the assertions made above. They also referred in their letter to s 494B(4) of the Act. However, no reliance was placed on that provision at the hearing before me.
The Tribunal intended to conduct a hearing on 25 October 2002 and invited the first applicant to appear to give evidence and to present arguments relating to the issues arising in relation to the application for review. However, on 16 October 2002 another firm of solicitors, Simon Jeans & Associates, who now act for the applicants, wrote to the Tribunal requesting deferral of the proposed hearing date. Those solicitors also reiterated a request for a copy of Departmental and Tribunal files that they had made on 11 October 2002. As a result of further conversations between Mr Jeans and Tribunal officers, the hearing scheduled for 25 October 2002 was cancelled.
On 30 January 2003 the Tribunal wrote to Simon Jeans & Associates seeking further additional information concerning the application. Simon Jeans & Associates responded on 17 February 2003, enclosing a statutory declaration by the first applicant. The statutory declaration included the following:
‘16.I continued to meet and have contact with Xie Fei. On 28 July 2002 the Department of Immigration sent someone to my place and said my visa had been cancelled. This was the first time I realised I had been dismissed.
17.I was provided a copy of a letter dated 30 January 2002 signed by May Chen at Everclear Australia. The first time I saw this was in August 2002 when it was shown to me by my former solicitor. It was provided to me during my Federal Court appeal. The allegations made there are completely untrue. It is completely untrue that I delayed the commencement of my employment with Everclear. The reasons I had allegedly given for delaying the employment were completely untrue. It was also untrue that Xie Fei, the General Manager, was insisting that I come to Darwin and commence employment immediately. Nor was I ever advised that my employment had been terminated.
18.It can be noted that the fax from Everclear advising the Department of the incorrect home address was sent from the fax machine of Hardman Catseye… in Chatswood. As I said earlier, this company is under the control of Mr Xie Fei.
…
21.I have been shown a copy of a letter dated 8 February 2002 in which May Chen provides my address as “3A Hercules Street, Chatswood, NSW 2067”. I have never lived at this address or used it for residing or postal purposes. I have never informed the Department of this address. Nor have I ever authorised anyone to provide that address. I am sure Xie Fei knew where I was living when he supplied that address because he advanced my sister, wife and I the deposit for the purchase of the house at 26 Gibbes Street, Chatswood, and I later repaid him. This cheque was dated 7 August 2001.
…’
The statutory declaration may fairly be regarded as containing an assertion that Mr Xie Fei knew that the first applicant resided at 26 Gibbes Street, Chatswood and not at 3A Hercules Street, Chatswood. It appears that Fei Xie was a director of Everclear. However, the letter of 8 February 2002 was signed by May Chen, the other director of Everclear, and there is nothing in the material before the Tribunal that contains any explicit assertion by or on behalf of the applicants that Ms Chen knew that the address set out in the letter of 8 February 2002 was false and that she made such a false statement with the intention of misleading the Minister.
I do not consider that the assertions in the statutory declaration could fairly give rise to an obligation on the part of the Tribunal to investigate whether there was fraud in the giving of the address to which the notices were sent by the Minister’s delegate. The letters from Coelho & Coelho made submissions on the basis of s 494B(4) of the Act. The submission made by Simon Jeans & Associates of 17 February 2003 was that the notice of cancellation was not properly notified because it was not sent to an address that was notified to DIMIA by the first applicant or any authorised representative. That also appears to take up the submission based on s 494B(4).
Section 494B(1) provides that, for the purposes of provisions of the Act or the Regulations that require or permit the Minister to give a document to a person and state that the Minister must do so by one of the methods specified in s 494B, the methods are as there set out. Section 494B(4) then provides:
‘Another method consists of the Minister dating the document, and then dispatching it:
(a)within 3 working days (in the place of dispatch) of the date of the document; and
(b)by prepaid post or by other prepaid means; and
(c)to:
(i)the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or
(ii)the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents. ’(Emphasis added)
The submissions made by both firms of solicitors appear to be based on the proposition that, for the notice to be effective, it must have been sent to the last address for service provided to the Minister by the first applicant. The fact that submissions to the Tribunal were thus based on s 494B indicates clearly enough that there was no submission made that any notice given in March was vitiated by fraud. In the circumstances, I do not consider that it was incumbent upon the Tribunal to conduct an examination as to whether there had been fraud on the part of Everclear. In any event, the material before the Tribunal would hardly support a finding that there was a fraudulent representation made to the Minister. That, however, is not a question for the Court.
The first ground is not made out.
CONSTRUCTION OF REGULATION 2.55(3)(c)
After the hearing began, the applicants were granted leave to amend the grounds of their application for prerogative writ relief by raising the proper construction of Regulation 2.55(3)(c). The relevant provision is that a document must be despatched ‘to the person’s last residential address, business address or post box address known to the Minister’. The Minister contends that that provision should be construed as meaning the last address with respect to a person known to the Minister, regardless of whether the address was ever an address of the person. That, however, is not what the Regulation says.
The Regulation speaks of a person’s last address known to the Minister, whether a residential address, a business address or a post box address. The express requirement of the Regulation is that it must be an address of the person. The Tribunal found that the address to which the Minister’s delegate dispatched the relevant notices was not, and had never been, an address of the applicants. Accordingly, I consider that Regulation 2.55(7) has no application to deem the applicants to have received the relevant letters in circumstances where they did not in fact receive the letters.
The Minister supported her contentions as to the construction of Regulation 2.55 by observations made by the Court in Ball v Minister for Immigration & Multicultural & Indigenous Affairs 199 ALR 374. In that case, DIMIA sent a notice of visa cancellation to a person at an address in Kalgoorlie that had been supplied to DIMIA by the Western Australia Police. However, the person in question had moved to Melbourne and did not receive the notice, which was returned unclaimed to DIMIA. The evidence indicated that the Kalgoorlie address had been supplied by the person in question when she appeared before the Kalgoorlie Court of Petty Sessions. It was also the address which the person had supplied to the Australian Taxation Office. An inference could therefore clearly be drawn that the address had been the person’s address at some stage. Ryan J therefore considered that Regulation 2.55(3) and Regulation 2.55(7) were applicable. His Honour relevantly said (par [25] at p385):
‘…the concept of a last known address in reg 2.55(3)(c) does not depend on the minister’s knowledge coming from a particular source. Nor does it require that the minister’s knowledge be verified in any particular way. It is sufficient that the means of knowledge relied on by the minister be reasonable in the circumstances. In the present case, the knowledge acquired from the Western Australian Police about the applicant’s residential address was accurate when acquired and remained accurate until the applicant left Western Australia…’ (Emphasis added)
Thus, his Honour was not concerned with a situation where notice was despatched to an address that had never been an address of the person in question. His Honour was concerned only to say that the Minister may rely on despatching a document to the last address of a person known to the Minister so long as it was reasonable for the Minister to do so. His Honour should not be regarded as saying that a document will be taken to have been received at an address that had no connection with a person simply because it was reasonable for the Minister to have believed, erroneously, that the address was an address of that person.
The effect of Regulation 2.55(7) can be draconic. It can clearly operate in circumstances where a person has moved from an address without the knowledge of the Minister. Nevertheless, had the executive government, in making the Regulations, intended that a person could be taken to have been given a document by leaving the document at an address with which the person has never had any connection, it would have been easy enough to say so. It did not. It referred expressly to ‘the person’s address’.
It is significant that s 494B, when the Parliament addressed the question, does not go as far as the Minister suggests Regulation 2.55 goes. Thus, s 494B(4) requires that a document be dispatched by prepaid post or by other prepaid means to the last address for service provided to the Minister by the recipient. Under that provision, a person may be taken to have received a document that the person has not in fact received. However, that would only be the result where the document is despatched to an address given by the person to the Minister and the person has left the address without notifying the Minister of the change.
I do not consider that the letter of 12 March 2002 was despatched to the first applicant’s last residential address, notwithstanding that the Minister, on reasonable grounds, believed that 3A Hercules Street, Chatswood was the residential address of the first applicant. It follows that Regulation 2.55(7) has no application. Accordingly, the applicants were first notified of the decision of the delegate to cancel the visas when their solicitors received a facsimile communication on 19 August 2002. It follows that the application to the Tribunal for review was made in compliance with s 347(1)(b) of the Act.
CONCLUSION
The applicants would be entitled to a writ of certiorari removing the Tribunal’s decision into this Court to be quashed and a declaration that the application to the Tribunal for review was made within the time limited by s 347(1)(b) of the Act. The Tribunal is not a party to this proceeding, but it is appropriate to make the declaration.
The ground upon which the applicants have succeeded was not raised until the course of the hearing. However, counsel for the Minister sought an adjournment during the course of the hearing, to obtain instructions as to whether, when that ground was raised, relief would still be resisted. The Minister elected to continue to resist the relief sought. I consider that in the circumstances the applicants should be given one-half of their costs of the proceeding.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate:
Dated: 10 March 2004
Counsel for the Applicant L. Karp
Solicitor for the Applicant: Simon Jeans & Associates Counsel for the Respondent: G.T. Johnson
Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 4 February 2004 Date of Judgment: 5 February 2004
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