Maroun v MIAC
[2009] FMCA 535
•23 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
MAROUN v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 535
MIGRATION – Review of Migration Review Tribunal decision – Tribunal finding it lacked jurisdiction – review application made out of time – whether the applicant was properly notified of the delegate’s decision considered.
Migration Act 1958 (Cth), ss.66, 494B, 494C, 494D
Migration Regulations 1994 (Cth)
Zhan v Minister for Immigration (2003) 128 FCR 469
Applicant: JEAN RICHARD MAROUN
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: MIGRATION REVIEW TRIBUNAL
File Number: SYG 547 of 2009
Judgment of: Driver FM
Hearing date: 5 June 2009
Date of Last Submission: 26 June 2009
Delivered at: Sydney
Delivered on: 23 July 2009 REPRESENTATION
Counsel for the Applicant: Mr P D Reynolds
Solicitors for the Applicant: Parish Patience Immigration Law
Counsel for the Respondents: Mr H Bevan
Solicitors for the Respondents: Australian Government Solicitor ORDERS
(1)The application is dismissed.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEYSYG 547 of 2009
JEAN RICHARD MAROUN Applicant
And
MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent
MIGRATION REVIEW TRIBUNAL Second Respondent
REASONS FOR JUDGMENT
As Corrected
Introduction and background
1.This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”). The decision was made on 6 February 2009. The Tribunal found that it did not have jurisdiction in the matter. Mr Maroun had sought review before the Tribunal of a decision of the Minister’s delegate made on 20 August 2004 to refuse to grant him a temporary student (class TU) visa. Mr Maroun had lodged that application with the Minister’s Department on 15 March 2004.
2.Mr Maroun was assisted by a migration agent who wrote to the Department on 28 December 2007 enquiring as to the status of the visa application (court book “CB” 36-42). The agent received no response and on 24 July 2008 he wrote a further letter (CB 43). On 15 August 2008 an officer of the Department sent an email to Mr Maroun’s migration agent in which he stated that notification of the delegate’s decision had been sent by registered mail to 144 Walpole Street, Merrylands, NSW on 24 August 2004 and returned unclaimed by Australia Post on 1 October 2004.
3.Mr Maroun sought review by the Tribunal on 14 November 2008. His agent submitted to the Tribunal that it had jurisdiction because the Department had failed to properly notify Mr Maroun of the delegate’s decision.
4.On 16 December 2008 the Tribunal wrote to Mr Maroun’s migration agent, inviting him to comment and provide further information on the question of notification (CB 55-56). The agent sought additional time to respond, which was agreed to (CB 58). It does not appear that any additional comments or information were provided.
The Tribunal decision
5.The Tribunal decided that it did not have jurisdiction for the following reasons:
a)it was satisfied that the contents of the delegate’s decision notice complied with the requirements of s.66(2) (CB 63[16]);
b)the envelope which purportedly contained the Department’s decision notice was returned to the Department unclaimed. The markings on the envelope indicated that it was handled by Australia Post on 24 August 2004, which confirmed that the notice was despatched within three working days from the date of the notice. The envelope also showed that it was correctly addressed to the last residential address provided by the applicant for the purpose of receiving documents (CB 63-64 at [17]);
c)the material before the Tribunal indicated that the applicant did not give the Minister written notice under s.494D of the name and address of an authorised recipient and that the decision notice, dated 20 August 2004, was sent by prepaid post on 24 August 2004 (being within three working days) from a place in Australia to the applicant at an address in Australia, being the last residential address provided to the Minister by the applicant for the purposes of receiving documents. The letter was returned unclaimed, but the applicant was taken to have received it pursuant to ss.66(1) and 494B(4) (CB 64 at [18]-[19]);
d)it did not accept the submissions of the applicant in the letter of 14 November 2008. Notifying the Department of an email address did not oblige it to communicate by email (CB 64-65 at [22]). Also, there was no evidence of the applicant having advised the Department of a change of address – although he had provided a statement with a different address, there was no evidence that suggested that he had requested the Department use this other address for the service of documents (CB 64-65 at [20]-[24]).
The application and evidence
6.Mr Maroun relies upon an amended application filed on 22 May 2009. The grounds and particulars of that application are:
1. The Tribunal committed jurisdictional error by failing to exercise its jurisdiction.
Particulars
(a) The purported notification by the delegate of the First Respondent of its decision was invalid because it did not comply with s.66(2)(d)(iv) of the Act.
(b) Further and in the alternative, the purported notification was not ‘dispatched’, or further and in the alternative ‘dispatched’ within 3 working days of the date on the notification, as is required by s.494B(4), and therefore the notification was invalid and the Applicant cannot be taken to have received it.
(c) Further and in the alternative, the purported notification was not sent in accordance with the requirements of s.494B(4) or any other method set out in s.494B and, therefore, the notification was invalid and the Applicant cannot be taken to have received it.
7.I received as evidence an affidavit of Sylvia Carrillo made on 29 May 2009 in which she deposes as to her knowledge and experience in relation to the notification of Departmental decisions. Ms Carrillo was cross-examined on her affidavit. I also received the court book filed on 7 April 2009.
Submissions
8.The applicant contends, first, that the Minister did not comply strictly with the provisions of s.66(2) of the Migration Act 1958 (Cth) (“the Migration Act”) in that the letter purporting to constitute notification did not identify where the application for review can be made as required by s.66(2)(iv). Rather, the letter refers to an enclosed leaflet. There is a dispute about whether a leaflet, and if so which leaflet, was enclosed with the letter.
9.Secondly, the applicant contends that there is no evidence that the notification letter was in fact sent and so compliance with s.494B(4) has not been established and s.494C(4) has no operation.
10.Thirdly, the applicant contends that if the notification letter was despatched (which is not conceded) it was not sent to the last address for service or the last residential address provided to the Minister by the applicant for the purposes of receiving documents[1]. The applicant contends that the only address provided by the applicant to the Department for the purposes of receiving documents was his email address, which was not used. The applicant contends that it is only by sending notification to the email address that the Minister could meet the requirements of regulation 2.16(3) of the Migration Regulations 1994 (Cth) (“the Migration Regulations) and s.494B.
[1] See s.494B(4)
11.The Minister submits that the Court should accept that a leaflet providing adequate details of where a review application can be made was included with the Department’s notification letter. Secondly, the Minister submits that the Court should infer from the markings on the envelope in which the notification letter was said to be contained that the letter was despatched within three working days of the date that it bore. Thirdly, the Minister submits that the notification letter was properly directed to the residential address provided by Mr Maroun in his visa application and that there was no need for the Department to also send the notification to Mr Maroun’s email address.
12.I was concerned at the trial that the applicant had left blank not only question 20 on the visa application form (CB 2) which called for the provision of address for correspondence but also question 73, which required the applicant to identify who the Department should correspond with (CB 14). The question in my mind was whether a visa application is “complete” if the Department is left in doubt to whom and where it should correspond[2]. I invited further submissions from the parties on that issue. The applicant filed supplementary submissions on 18 June 2009. The Minister filed supplementary submissions on 26 June 2009. I understand the parties to be in general agreement that as the applicant had not nominated an authorised recipient the Department could assume that it must correspond with him. The parties differ as to where the Department should have sent correspondence but both agree that an address for correspondence was provided in answer to either question 16, 18 or 21 on the visa application form (CB 2). In the circumstances, I proceed on the basis that the visa application was sufficiently complete as to be valid.
[2] cf SZGME v Minister for Immigration [2008] FCAFC 91
The legislation
13.Sections 66, 494B(4) and (5) and 494C(4) and (5) provide:
Section 66
(1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.
(2) Notification of a decision to refuse an application for a visa must:
(a)if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa--specify that criterion; and
(b) if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa--specify that provision; and
(c) unless subsection (3) applies to the application--give written reasons (other than non‑disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
(d)if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500--state:
(i) that the decision can be reviewed; and
(ii) the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made.
(3) This subsection applies to an application for a visa if:
(a) the visa is a visa that cannot be granted while the applicant is in the migration zone; and
(b) this Act does not provide, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.
(4) Failure to give notification of a decision does not affect the validity of the decision.
(5) This section does not apply to a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.
Note: Sections 501C and 501G provide for notification of a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.
Section 494B(4) and (5)
(4) Another method consists of the Minister dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or
(ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; or
(iii) if the recipient is a minor--the last address for a carer of the minor that is known by the Minister.
(5)Another method consists of the Minister transmitting the document by:
(a) fax; or
(b) e‑mail; or
(c) other electronic means;
to:
(d) the last fax number, e‑mail address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents; or
(e) if the recipient is a minor--the last fax number, e‑mail address or other electronic address, as the case may be, for a carer of the minor that is known by the Minister.
Section 494C(4) and (5)
(4) If the Minister gives a document to a person by the method in subsection 494B(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.
(5) If the Minister gives a document to a person by the method in subsection 494B(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.
14.Regulation 2.16(3) of the Migration Regulations states:
(3) The Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act.
Note If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.
Reasoning
15.There are three issues to resolve:
a)Did the notification letter comply with s.66(2)(d)(iv)?
b)Was the notification letter despatched within the time prescribed by s.494B(4)?
c)Was the notification letter despatched to the last residential address provided by the applicant for the purposes of receiving documents?
Did the notification letter comply with s.66(2)(d)(iv)?
16.Section 66(2)(d)(iv) relevantly provides that a notification of a decision to refuse an application for a visa must state where the application for review can be made.
17.A copy of the notification is at CB 28. The final paragraph of the letter says:
The enclosed leaflet provides information about review by the MRT, including addresses where an application can be made. If you require further information about review by the MRT, you should contact one of the MRT offices listed in the leaflet.” (Emphasis added.)
18.Underneath the signature of Ms Carillo, the author of the letter and the delegate responsible for the decision, appears the following:
Enclosures:
Student (Temporary) (Class TU) visa decision record
MRT leaflet.
19.A copy of a Tribunal leaflet said to be the relevant leaflet is Annexure B to Ms Carillo’s affidavit. That leaflet includes the following statements:
… Our contact details are listed at the end of this pamphlet
(page 1, column 1.5);
and
An application for review an only be lodged at a registry of the Tribunal. It can be lodged either in person or sent by post or by facsimile
(page 3, column 1.1).
20.Under the heading “How to contact the Migration Review Tribunal”, the following appears:
The Tribunal’s offices are open from 9am to 4.30pm on weekdays (page 5, column 2.3).
21.Immediately following is a list of the Tribunal’s offices in the states of New South Wales, Victoria, Queensland, South Australia and Western Australia. The entry for New South Wales is as follows:
New South Wales
Level 3, 44 Market Street
Sydney NSW 2000
Phone: (02) 9290 7222
Fax: (02) 9262 5660. (Emphasis original.)
22.Ms Carillo could not recall this particular letter or decision. However, Ms Carillo gave evidence that her usual practice was to enclose a copy of the decision record and the Tribunal leaflet with the letter informing the applicant of the outcome of the application.[3] Ms Carillo deposes that she would have done so in this case. Under cross-examination Ms Carillo conceded that she could not say definitively that the form of leaflet at Annexure B to her affidavit was the form of leaflet that would have been enclosed with the letter but her best guess is that that was the form of leaflet in use at the time.
[3] Affidavit of S Carillo affirmed 29 May 2009 at [8]-[9]
23.The Minister has not provided conclusive evidence as to what was enclosed in the envelope at CB 35. It does not appear that the contents of the envelope returned to the Department were retained. No contents were presented as evidence. On the other hand the applicant can give no evidence of what was in the envelope as he did not receive it. I am prepared to accept from Ms Carillo’s evidence as to her usual practice, and the documentary record that the letter at CB 28, the decision record at CB 29-34 and a MRT leaflet were included in the envelope. On the basis of Ms Carillo’s evidence I also accept that it is more likely than not that the leaflet was the same as that at Annexure B to her affidavit. While the drafting of that leaflet could have been improved, I accept that the leaflet adequately informed applicants of where an application for review might be made.
24.The applicant relies on the decision in Zhan v Minister for Immigration (2003) 128 FCR 469. That decision is distinguishable on the facts. In that case, Allsop J found that the leaflet was not enclosed with the letter (at 475 [23], 478 [30] and 483 [64]). It would appear that his Honour’s finding was based on the applicant’s evidence (at 478 [29]-[30]) that the leaflet was not included. In this case, I have found that the leaflet was included.
25.Accordingly, the notification complied with s.66(2)(d)(iv). The applicant’s first contention is not made out.
Was the notification letter despatched within the time prescribed by s.494B(4)?
26.Section 494B(4) relevantly provides that the Minister may give a document to a person by dating the document and despatching it within three working days of the date of the document by prepaid post to the last address for service, or the last residential or business address, provided to the Minister by the recipient for the purposes of receiving documents.
27.Section 494C(4)(a) relevantly provides that a person is taken to have received a document dispatched pursuant to s.494B(4) seven working days after the date of the document.
28.The applicant says that there is no evidence that the letter (at CB 28) was in fact despatched.
29.The letter (at CB 28) is dated 20 August 2004. That date was a Friday. Further, on the copy of that letter appears a registered post sticker, the number of which is “RP21430113”. Above the serial number is the phrase “Sender to Keep”.
30.A copy of an envelope is at CB 35. That envelope is addressed to the applicant at a specified address in Australia. On the copy of that envelope appears a registered post prepaid label, the number of which is “RP21430113”. Underneath the barcode is a blank space, the shape of which corresponds to the sticker which appears on the letter. The serial number of the label on the envelope is the same as the serial number of the label on the letter (at CB 28).
31.I have already found that the letter (at CB 28) was enclosed in the envelope (at CB 35).
32.The question then is whether the letter was dispatched within the time prescribed by s.494B(4)(a). There is no dispute that the registered post prepaid label constitutes “prepaid post” for the purposes of s.494B(4)(b).
33.There are the following markings on the envelope (looking at the document in landscape):
a)in the top right hand corner, in typescript, “PROCESSED AT SYDNEY WEST LF FMOCR7054”;
b)in handwriting immediately above and to the right of the registered post prepaid label, what appears to be “r / L” and “24/8”;
c)on the right hand side, in smaller typescript over two lines, “SYDNEY WEST LF” and “FMOCR705 24AUG04 00:05”.
34.On the basis of these markings on the envelope, particularly the references to “24/8” and “24AUG04”, the Minister submits that the Court should find that the envelope was processed by Australia Post on 24 August 2004. That date was a Tuesday. Accordingly, the Minister submits that the Court should also find that the letter enclosed within the envelope was despatched within three working days of the date of the date of the document. Mr Maroun contends that no inference of despatch can be drawn from those markings, and that they might reflect some process within the Minister’s Department. In my view, however, the markings on the envelope are more likely to be Australia Post than Departmental markings, and I accept the Minister’s submissions in that regard.
35.The evidence of Ms Carillo further supports these conclusions. Ms Carillo deposes that her usual practice, which she believes she followed in this case, was to mark the letter addressed to the applicant with a registered post sticker, put this letter with a copy of the decision record and the Tribunal leaflet in an envelope, also marked with a copy of the same registered post sticker, which envelope she then addressed to the applicant. I accept that Ms Carillo took these steps, including attending to the despatch of the letter, on the day the letter was signed.[4] Ms Carillo gave evidence that correspondence was cleared daily by Departmental staff for despatch and there is no reason to conclude that the usual departmental practice was not followed in this case. While better evidence of despatch would probably have been available from Australia Post registered post records, if the Minister had taken the trouble to obtain it, I am satisfied on the basis of the limited evidence available that the envelope containing the notification letter and enclosures was despatched within three working days of the date of the letter.
[4] Affidavit of S Carillo at [11]
36.Accordingly, the notification was sent within the time prescribed by s.494B(4). I reject the applicant’s second contention.
Was the notification letter despatched to the last residential address provided by the applicant for the purposes of receiving documents?
37.The applicant’s final contention is that the address on the letter and the envelope was not “the last residential address … provided to the Minister by the recipient for the purposes of receiving documents” (s.494B(4)(c)(ii)).
38.The address on both the letter and the envelope is “144 Walpole St Merrylands NSW 2160”.
39.This address was provided by Mr Maroun in his application for a visa in response to question 18 which asks for “Your residential address in Australia (if known)” (CB 2). No other residential address in Australia is specified in the visa application form. Mr Maroun did provide a residential address in Lebanon in answer to question 16.
40.Mr Maroun did not write anything in response to question 20 which asked for an “Address for correspondence” (CB 2). Accordingly, by leaving that part of the application form blank, Mr Maroun did not provide the Minister with “an address for service” within the meaning of s.494B(4)(c)(i).
41.Further, Mr Maroun did not write anything in response to questions 75, 76 and 77 (which request the details for an “authorised recipient” (CB 14)) or questions 78 and 79 (which request the details for a “migration agent” (CB 15)). He also left blank question 73 which asked to whom correspondence should be directed.
42.In answer to question 21 on the form: “Do you agree to DIMIA communicating with you by facsimile, email or other electronic means?” Mr Maroun answered “yes” and provided his email address. He contends that that was the only address provided by him to the Minister for the purpose of receiving correspondence, notwithstanding the note under question 21 that “If this visa application is refused, you will be notified by mail”. Mr Maroun contends that his Australian residential address (and his Lebanese residential address) were only provided in order to establish a valid visa application[5]. He also contends that as he provided both an Australian and a Lebanese residential address in the form no conclusion could be drawn by the Department as to which was his “last residential address”.
[5] see the note at question 16 and regulation 2.07(4)
43.The only residential address in Australia provided to the Minister by Mr Maroun was the address at “144 Walpole St Merrylands NSW 2160”. It being the only residential address in Australia ever provided to the Minister by the applicant in accordance with regulation 2.07(4), it was also “the last” such address (within the meaning of s.494B(4)(c)(ii)). Here, the word “last”, preceded by “the” refers to “the most recent address” provided to the Minister by an applicant. Necessarily, this will be a single address. As the visa application was made onshore it was reasonable to assume that the Australian residential address was more recent than the Lebanese address. The Tribunal found at [24] of its reasons that[6]:
As noted above, there were a number of letters on file addressed to the applicant but nothing to indicate that the applicant had advised the Department that his residential address had changed for the purpose of receiving documents. There is also no record of the applicant verbally advising the Department of a new address during a visit to the Department.
[6] CB 65
44.It would seem reasonable to conclude that the Department was entitled to correspond with Mr Maroun at the Australian residential address disclosed on his visa application form.
45.The applicant seeks to avoid the consequences of this conclusion by claiming that the address at “144 Walpole St Merrylands NSW 2160” was not provided to the Minister by the applicant “for the purposes of receiving documents”. The suggestion is that it is the applicant’s purpose which is relevant for s 494B(4)(c).
46.In my view, while an applicant’s purpose may be a relevant consideration in determining whether, and if so, what address(es) has been provided for the purposes of receiving documents, that question must be answered objectively, and not by reference to the applicant’s subjective intention.
47.First, as a matter of language, the phrase “for the purposes of receiving documents” refers to the result or outcome sought to be achieved, not to a person’s subjective intention. That is to say, it refers to the last residential address at which documents may be received.
48.Secondly, no support for the construction for which the applicant appears to contend can be found in the legislative scheme as a whole or in the extrinsic material. Indeed, everything in the legislative scheme points to the contrary.
49.Thirdly, to construe the phrase “for the purposes of receiving documents” as referring to the subjective intention of an applicant would produce a result that is not only anomalous, but absurd. It would render the statutory notification provisions entirely unmanageable in any meaningfully practical way, with the Minister (and the different tribunals) at the mercy of the subjective whims of applicants, at least in so far as the “purpose” of providing an address was concerned. Parliament clearly did not intend such a result.
50.In my view, an applicant’s intention may be relevant, in an objective sense, in determining whether an address is provided for the purposes of receiving correspondence only if it is apparent from the visa application form itself or from a notification of a change of address. For example, the applicant’s residential address may be unavailable for receiving correspondence because the applicant has nominated an authorised recipient with a different address. Alternatively, the applicant may nominate an address for correspondence different from his or her residential address; or, hypothetically, an applicant may for some sufficient reason specifically request the Department not to correspond with him or her at his or her residential address. But where it is not apparent from the visa application or notification of a change of address that the applicant’s most recent residential address is unavailable for correspondence, in my view the Minister’s Department is entitled to use that address for correspondence.
51.In any event, there is simply no evidentiary basis to support the contention that the Applicant did not provide the Minister with the address at “144 Walpole St Merrylands NSW 2160” “for the purposes of receiving documents”.
52.Finally, the applicant says that, notwithstanding the above, the only method by which the Minister should have notified him of the delegate’s decision was by email.
53.Leaving to one side the fact that the visa application form clearly states “If this visa application is refused, you will be notified by mail” (CB 2), I accept that the methods in s.494B are alternatives. Regulation 2.16(3) only requires the Minister to communicate by one of the methods specified in s.494B. There was no obligation on the Minister to use a multiplicity of those methods.
54.Accordingly, the notification was sent to a specified address being an address within the meaning of s.494B(4)(c)(ii). The applicant’s third contention is not made out.
Conclusion
55.I conclude that the Tribunal was correct in finding that it lacked jurisdiction in the review. I find that the Tribunal decision is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed.
56.As to costs, they should follow the event. I will hear the parties as to the amount of costs to be fixed.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 27 July 2009
CORRECTIONS
1. Paragraph 12 line 4 – delete “Tribunal” insert “Department”
2.Paragraph 12 line 6 - delete “Tribunal” insert “Department”
3.Paragraph 12 line 11 - delete “Tribunal” insert “Department”
4.Paragraph 12 line 13 - delete “Tribunal” insert “Department”
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