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Murphy v Minister for Immigration & Multicultural & Indigenous Affairs

Murphy v Minister for Immigration & Multicultural & Indigenous Affairs

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Case Copied 25 May 2004 37 min read

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FEDERAL COURT OF AUSTRALIA
Murphy v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 657
MIGRATION - PRACTICE AND PROCEDURE – Business Skills (Residence) (Class BH) visa, subclass 840 (Business Owner) – appeal from a refusal of the Migration Review Tribunal to grant visa – whether notification of Minister’s decision to refuse visa application is effective where written notification is sent by prepaid post to an address the Minister knows will result in the notification being returned undelivered, and which was so returned – the effect of subss 494B(4) and 494C(4) of the Migration Act 1958 (Cth) – whether subs 494C(4) of the Migration Act 1958 (Cth) evidences a contrary intention to the second limb of s 29 of the Acts Interpretation Act 1901 (Cth)
Acts Interpretation Act 1901 (Cth) s 29(1)
Migration Act 1958 (Cth) ss 441C, 475A, 494B, 494C, subss 474(1), 66(1), 338(2) 347(1),
Judiciary Act 1903 (Cth) s 39B
Summary Jurisdiction (Appeals) Act 1933 (U.K.) subs 3(1)
Interpretation Act 1889 (U.K.) s 26
Companies Act 1948 (U.K.) subs 437(1)
Hire Purchase Act 1959 (Qld) subs 42(1)(c)
Acts Interpretation Acts 1956 to 1962 (Qld)
Migration Regulations 1.11A, 2.16(3), 4.10(1), Schedule 1, Part 1, Clause 1104A, Schedule 2, Clauses 840.212, 840.213
Companies and Securities (Interpretation and Miscellaneous Provisions) (Qld) Code s 15
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 cited
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 305 referred to
R v County of London Quarter Sessions Appeals Committee; Ex parte Rossi [1956] 1 QB 682 considered
Saga of Bond Street Ltd v Avalon Promotions Ltd [1972] 2 QB 325 considered
Fancourt v Mercantile Credits Limited (1983) 154 CLR 87 considered
Re Otway Coal Co Ltd. [1953] VLR 557 considered
A/S Cathrineholm v Norequipment Trading Ltd [1972] 2 QB 314 considered
Thomas Bishop Ltd. v Helmville Ltd [1972] 1 QB 464 referred to
Re Rustic Homes Pty Ltd (1988) 13 ACLR 105 referred to
Re Gasbourne Pty Ltd [1984] VR 801 referred to
Re Ocean Distributors Pty Ltd (1990) 2 ACSR 486 referred to
Deputy Commissioner of Taxation v Coco (2003) 52 ATR 700 referred to
Repatriation Commission v Gordon (1990) 100 ALR 255 referred to
NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184 considered
VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004]
FCAFC 134 considered
PATRICK MICHAEL MURPHY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
No Q 4 of 2004
SPENDER J
BRISBANE
25 MAY 2004

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 4 OF 2004

BETWEEN:

PATRICK MICHAEL MURPHY
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

SPENDER J

DATE OF ORDER:

25 MAY 2004

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The application be dismissed.
2.Unless submissions are received within seven days from either party seeking to contend to the contrary, the applicant pay the respondent’s costs of and incidental to the application, to be taxed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] FCA 657
Decision Date: 25 MAY 2004

CaseChat Overview and Summary

In the case of Murphy v Minister for Immigration & Multicultural & Indigenous Affairs, the applicant, Mr Murphy, a United States citizen, sought judicial review of a decision made by the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) to refuse his application for a Business Skills (Residence) (Class BH) visa, subclass 840. Mr Murphy argued that the notification of the decision was invalid because the letters sent to him were returned undelivered, and that his application for review was timely as he received notification of the decision on 18 June 2003 and lodged the application on 26 June 2003.

The central legal issues before the court were whether the notification of the decision by DIMIA was valid despite the undelivered letters, and whether the applicant's application for review was lodged within the prescribed time period. The applicant relied on subsection 29(1) of the Acts Interpretation Act 1901 (Cth) and relevant case law to argue that the notification was invalid. Additionally, Mr Murphy contended that the application for review was within the time limit as he had received notification on 18 June 2003 and lodged the application on 26 June 2003.

The court considered the provisions of the Acts Interpretation Act and relevant case law, as well as the facts of the case, including the applicant's change of address and the undelivered letters. The court found that the notification was valid as it was made in accordance with the provisions of the Migration Act 1958 (Cth). The court further held that the application for review was not lodged within the prescribed time period, as the applicant had not received notification of the decision within the stipulated timeframe. Consequently, the court dismissed the application and ordered that unless either party sought to contest the costs within seven days, the applicant would be required to pay the respondent's costs of and incidental to the application.

Orders

Orders of the court

1. The application be dismissed.

2. Unless submissions are received within seven days from either party seeking to contend to the contrary, the applicant pay the respondent’s costs of and incidental to the application, to be taxed if not agreed.

Background

Background to the litigation

It was contended by Mr Stephen Sheaffe, counsel for the applicant, that the purported notification in the above circumstances was invalid, and that the application for review was made within the prescribed period, it being contended that the applicant received notification of the decision on 18 June 2003 and the application for review was made on 26 June 2003. Counsel for the applicant relies on subs 29(1) of the Acts Interpretation Act 1901 (Cth) (“the Acts Interpretation Act”) and a long line of cases in respect of that section, and its equivalent in other jurisdictions, for the contention that the purported notification by posting of letters to an address, which letters were undelivered and returned to the sender, was invalid.Factual Background The applicant, a citizen of the United States of America, entered Australia on a Business Visitor class V11 visa on 20 July 1990, which visa was valid until 25 July 1996. On 25 July 1996 he was granted a Temporary Business Entry (Class UC) visa, subclass 456 (Short Stay). On 3 September 1996 he was granted a Temporary Business Entry (Class UC) visa, subclass 457 (Long Stay). This visa was again granted on 2 August 2000 and is valid until 2 August 2004. On 15 March 1999, the applicant made application to the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) for a Business Skills (Residence) (Class BH) visa, subclass 840 (Business Owner). This was a class of permanent visa provided for in Schedule 1, Part 1, Clause 1104A of the Migration Regulations. In support of that application, the applicant completed Form 1029. In that application form he gave his home address in Australia as “20/22 Concorde Pl Caboolture 4510”, and his address for correspondence about his application as “Box 3213 Clontarf 4019”. In answer to the question ‘Do you want all correspondence about this application to be sent to a person (such as an agent or lawyer) other than you?’, he entered a cross in the ‘No’ box. In a letter dated 21 September 1999 to an officer of DIMIA, referring to information which had been requested by DIMIA, Mr Murphy notified the Department:‘I have opened a new Post Office Box that is checked daily at:Patrick M. MurphyPO Box 627Morayfield 4506QueenslandPlease update your file to reflect this change.’ On 4 October 1999, under a letterhead which showed his Morayfield Post Office Box number, Mr Murphy wrote to the Department enclosing a Police Certificate and a medical examination for an Australian visa in Form 26, which also showed his address as “P.O. Box 627 Morayfield, Qld 4506”. On 14 October 1999 the application for a Business Skills (Residence) (Class BH) visa, subclass 840 (Business Owner) was refused by DIMIAon the grounds that the criteria in Clauses 840.213 and 840.214 of Schedule 2 of the Migration Regulations were not complied with. The applicant lodged an application for review with the MRT which heard his application on 25 October 2002. Mr Murphy asserts that in the course of this hearing he told the MRT his new address at Helidon.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

SPENDER J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: SPENDER J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 4 OF 2004

BETWEEN:	PATRICK MICHAEL MURPHY APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SPENDER J
DATE OF ORDER:	25 MAY 2004
WHERE MADE:	BRISBANE