On v Minister for Immigration

[2016] FCCA 481

FEDERAL CIRCUIT COURT OF AUSTRALIA

ON v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 481

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision (Tribunal) – whether Tribunal erred in concluding it had no jurisdiction to determine the applicant’s application for a review of the delegate’s decision (Decision) not to grant the applicant a Partner (Migrant) (Class BC) visa because the applicant is taken to have received the document recording the Decision more than 21 days before the applicant applied to the Tribunal for review of the Decision – whether error in the address to which the delegate dispatched the Decision had the consequence of the delegate not dispatching the letter to the address notified by the applicant – error in the address had no such consequence – the Tribunal had no jurisdiction to determine application for review.

Legislation:

Migration Act 1958 (Cth), ss.66, 347(1)(b), 494B(4), 494B(4)(c)(i), 494C(4)

Migration Regulations 1994 (Cth), r. 4.10(1)(a)

Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172

Applicant: BURACK ON

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1104 of 2014

Judgment of: Judge Manousaridis

Hearing date: 4 February 2015

Delivered at: Sydney

Delivered on: 11 March 2016

REPRESENTATION

Solicitors for the Applicant: Mr R Turner of Turner Coulson Immigration Lawyers

Counsel for the First Respondents: Ms B Tronson

Solicitors for the First Respondents: DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1104 of 2014

BURACK ON

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant applies for judicial review of a decision of the second respondent (Tribunal) that it did not have jurisdiction to review a decision made by a delegate of the first respondent (Minister) not to grant the applicant a Partner (Migrant) (Class BC) visa (Partner visa).

Background

1. In 2010 the applicant applied for a Partner visa.  On 14 March 2012 the applicant provided to the Minister a completed “Checklist For Partner Visa Processing” form which recorded details of his residential and postal address, namely “xxx Rd Sydenham” (Provided Address).[1] It is common ground that the Provided Address was the “last address for service provided to the Minister by the recipient for the purpose of receiving documents” within the meaning of s.494B(4)(c)(i) of the Migration Act 1958 (Cth) (Act). The address for the applicant that the Department of Immigration and Border Protection (Department) (then known as the Department of Immigration and Citizenship) recorded in its computer system, however, was “xxx Rd SYDNEYHAM NSW 2044” (Recorded Address).[2]

   [1] CB69

   [2] CB94-95; 104-107

2. On 2 September 2013 the Department dispatched a letter dated 2 September 2013 by registered post addressed to the applicant at the Recorded Address, namely, “xxx Rd SYDNEYHAM NSW 2044” attaching the decision of a delegate of the Minister not to grant the applicant a Partner visa. By that time, the applicant had moved from the Provided Address, that is, “xxx Rd Sydenham”; and the applicant only became aware of the letter more than 21 days after the delegate made his decision. The significance of that fact is that the applicant could only have made an application to the Tribunal for review of the delegate’s decision within 21 days after the applicant was notified of the decision.[3] The delegate’s letter was returned to the Department on 27 September 2013.[4]

   [3] Migration Act 1958 (Cth) s.347(1)(b); Migration Regulations 1994 (Cth) r.4.10(1)(a)

   [4] Affidavit of K M Havas, 14.12.2014, annexure “A”

3. On 19 October 2013 the applicant sent to the Department an email in which he said that the Department had sent him a letter on 5 September 2013 which he did not receive because he was “no longer at that address”.[5] The applicant requested the Department send him a copy of the decision by email or to “resend” the letter to an address the applicant specified in his email. On 24 October 2013 the applicant sent another email to the Department in the same terms as his email of 19 October 2013.[6] By email sent on 25 October 2013, the delegate informed the applicant that on 2 September 2013 the delegate had sent an official notification letter “to the last notified address you had given the department to use”, and attached a copy of the letter the delegate had sent to the applicant.[7]

   [5] CB126

   [6] CB126

   [7] CB125

4. On 4 November 2013 the applicant applied to the Tribunal for a review of the delegate’s decision. With the application, the applicant’s legal representative provided a letter in which he claimed the delegate’s decision was not dispatched to the last known address the applicant provided to the Department. The basis of that assertion was that the last address for service the applicant had provided to the Department stated “Sydenham” as the suburb whereas in the delegate’s letter “Sydneyham” was specified as the suburb.[8]

   [8] CB148

5. The Tribunal found the delegate’s letter was dispatched to the applicant’s last address for service provided to the Minister by the applicant. It concluded the incorrect spelling of the suburb Sydenham did not invalidate the notification. The Tribunal found the difference in spelling had no practical consequence in the notification of the applicant of the Department’s decision, and the letter in any event was sent to the applicant’s correct address.

6. Given the submissions the applicant made at the hearing, it will be necessary to set out the evidence relating to the sending of the letter containing the delegate’s decision.

The sending of the delegate’s letter

1. As I have noted, the letter containing the delegate’s decision was sent by registered post. The evidence satisfies me that on 2 September 2013 the delegate caused the letter to be placed in an envelope that was addressed to the Recorded Address, that is, “xxx Rd SYDNEYHAM NSW 2044”; the letter was delivered by the Department to Australia Post; and, in exchange for the delivery of the envelope, Australia Post issued to the Department a tracking number.

2. The envelope was received at Australia Post’s Alexandria delivery facility on 4 September 2013.[9] At 12.52 pm on the same day an attempt was made to deliver the envelope to the Provided Address, that is, “xxx Rd Sydenham”.[10] That attempt was made by a postal delivery officer going to xxx Road, Sydenham, NSW 2044 and making enquiries whether any person was present at that address or whether any person at that address was able to sign for the letter.[11] The postal delivery officer left a card stating that the envelope would be held at St Peters Licensed Post Office (LPO) for collection. The envelope was then taken to St Peters LPO on 5 September 2013 to await collection by the addressee.[12] On 10 September 2013 a staff member at St Peters LPO posted a “Final Notice card” to the addressee of the envelope.[13] On 25 September 2013 the St Peters LPO arranged to send the envelope to the Department.[14] It was returned to the Department because the envelope was “unclaimed”.[15]

   [9] Affidavit of K M Havas, 14.10.2014, [7.1]

   [10] Affidavit of K M Havas, 14.10.2014, [7.1]

   [11] Affidavit of K M Havas, 14.10.2014, [7.2]

   [12] Affidavit of K M Havas, 14.10.2014, [7.2]

   [13] Affidavit of K M Havas, 14.10.2014, [10.2]

   [14] Affidavit of K M Havas, 14.10.2014, [10.5]

   [15] Affidavit of K M Havas, 14.10.2014, [10.5]

Grounds of review

1. The amended application raises one ground of review:

   The Tribunal applied the wrong test

   Particulars

   a.The Tribunal found at [20]

   “The tribunal finds that the incorrect spelling of Sydenham did not invalidate the notification letter by the department to the applicant date [sic] 2 September 2013. The difference in the spelling of Sydenham had no practical consequence in the notification of the applicant of the department’s decision. The tribunal finds that the letter and decision were sent to the applicant’s correct address and, therefore, he was required to file any application for review of the Tribunal’s decision with the tribunal on or before 2 October 2013.”

   b.The correct test is whether the Minister for Immigration & Border Protection complied with the Migration Act 1958 ss.66 and 494B and Regulations [sic] 2.16.

   c.The Tribunal, therefore did not apply the correct test.

2. Whether or not the Tribunal applied the wrong test is not determinative of whether the Tribunal had jurisdiction to entertain the applicant’s application for review. Whether or not the applicant had been notified of the delegate’s decision in the manner required by the Act and by regulations made under the Act is a jurisdictional fact which this Court must determine.[16] Thus, even if the Tribunal had applied an incorrect test, that does not mean it had jurisdiction. By the same token, the Tribunal’s applying the correct test does not necessarily mean it correctly found it had jurisdiction.

   [16] Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 at [19]: “The Tribunal’s finding that the application was out of time was a decision as to the existence of a condition precedent to its jurisdiction. It is therefore open to re-examination in appropriately constituted proceedings”.

Parties’ submissions

1. At the hearing before me, the applicant submitted s.66 of the Act required the Minister to notify the applicant of the delegate’s decision “in a prescribed way”. One prescribed way was that specified in s.494B(4) of the Act which permitted the Minister to give a document to a person by “dating” the document and, within three working days “dispatching” the document by “prepaid post or by other prepaid means” to, among other places, the last address for service provided to the Minister by the recipient for the purposes of receiving documents.  Mr Turner, solicitor, who appeared for the applicant, submitted that the letter was not dispatched to the Provided Address, that is, “xxx Rd Sydenham”, but to the St Peters LPO. This submission is based, at least in part, on the delegate having posted an earlier letter (dated 10 April 2012) by registered post to the Recorded Address, that is “xxx Rd SYDNEYHAM NSW 2044”,[17] and its having been returned to the Department as unclaimed.[18] Mr Turner submitted that, because the previous letter had been returned as unclaimed then, irrespective of the address stated on the face of the envelope that contained the delegate’s decision of 2 September 2013, the Minister constructively knew that the letter would have been dispatched to the St Peters LPO, not to xxx Road, Sydenham, NSW 2044.

   [17] CB87

   [18] CB97

2. Counsel for the Minister, on the other hand, submitted that the relevant question is whether the delegate’s decision was dispatched to the “last address for service provided to the Minister by the recipient for the purposes of receiving documents”, notwithstanding the suburb had been spelt “Sydneyham” rather than “Sydenham”. Counsel submitted that the concept of dispatching a letter to an address should be given a practical and common sense interpretation. Further, despite the typographical error, the evidence demonstrates that Australia Post read “Sydneyham” as “Sydenham”.

Was the delegate’s decisions sent to last address for service?

1. Whether or not the delegate’s letter dated 2 September 2013 was dispatched to “the last address for service” provided by the applicant turns, in the first instance, on the meaning of the word “dispatching” as that word appears in s.494B(4) of the Act. The Oxford English Dictionary defines “dispatch” as to “send off to a destination or for a purpose”. That, in my opinion, is the intended meaning of “dispatching” used in s.494B(4) of the Act. The dispatching of a document by the Minister means the Minister’s sending off a document.

2. The next words to consider is the expression immediately associated with “dispatching”. That expression is “by prepaid post or by other prepaid means”. That is a reference to the means by which the Minister may send off the document. The means are those provided by an organisation that offers postal services (Postal Service Provider). Subsection 494B(4) of the Act does not exhaustively specify the postal services that the Minister may use to dispatch a document, or the organisation or organisations that provide such services. There can be no doubt, however, that the postal services would at the very least include those provided by Australia Post that fall within the description “prepaid post” and any other service for the sending of documents for which Australia Post requires payment before it provides the service.

3. The next word to consider is “address”. According to the Oxford English Dictionary, “address” means “the place where someone lives or an organisation is situated”; and that is the intended meaning of “address” in s.494B(4) of the Act. The Act assumes there exists a well-understood system under which a person may specify in writing where that person lives or the place at which a document may be received; and that system is one predicated on specifying, at least in most cases, a street, a street number, a suburb, a State or Territory and the correlating postcode or, alternatively, a post box number situated at a place which is identified by a post office in a particular suburb in a particular State or Territory.

4. Next, the expression “the last address for service provided to the Minister by the recipient for the purposes of receiving documents” must be considered. That is the address a person has nominated to the Minister as the address at which the person will receive documents (Notified Address). In most cases it will be a street, street number, suburb, a State or Territory and the correlating postcode or, alternatively, a post box number situated at a place which is identified by a post office in a particular suburb in a particular State or Territory.

5. Finally, the word “to” must be considered. The Minister may dispatch a document by use of a prepaid postal service or other prepaid service provided by the postal service provider “to” the place denoted by the Notified Address. Some of the meanings of “to” given by the Oxford English Dictionary are “[i]ndicating aim, purpose, intention, or design: [f]or; for the purpose of; with the view or end of; in order to”, and “[i]ndicating destination, or an appointed or expected end or event”. Thus, in the context of s.494B(4) of the Act, “to” means the Minister’s dispatching the document with a view to its reaching the place denoted by the Notified Address. That requires the Minister to communicate the Notified Address to the Postal Service Provider.

6. Thus, in any given case, whether or not the Minister has complied with s.494B(4) of the Act requires the Court to compare the Notified Address with the address the Minister communicated to the Postal Service Provider as the address to which the document is to be dispatched (Communicated Address). If the addresses are identical, the Minister will have complied with s.494B(4) of the Act. Where, however, the addresses are not identical, whether or not the Minister will have complied with s.494B(4) of the Act may turn on a number of matters. One is the nature and extent of the differences between the Notified Address and the Communicated Address. Where the differences are so minor that it could not reasonably be supposed that the Postal Service Provider would have understood the Communicated Address to be different from the Nominated Address, the Minister will have complied with s.494B(4) of the Act. In my opinion, evidence is admissible to determine whether the Postal Service Provider in fact interpreted the Communicated Address to be the same as the Nominated Address. If the evidence establishes that the Postal Service Provider interpreted the Communicated Address to be the same as the Nominated Address, the Minister will have complied with s.494B(4) of the Act.

7. The discrepancy between the Provided Address, that is, the address the applicant provided to the Minister, and the Recorded Address, being the address the Minister provided to Australia Post as the address to which the delegate’s decision of 2 September 2013 was dispatched, was minor. The error was that “Sydenham” was spelt “Sydneyham”. It would have been plain to any officer of Australia Post who had some responsibility for the delivery of the letter that the intended suburb was “Sydenham”. The evidence I have already summarised satisfies me that the relevant officers of Australia Post did read “Sydneyham” as “Sydenham”.

Conclusion and disposition

1. The Minister dispatched the delegate’s decision of 2 September 2013 in the manner permitted by s.494B(4) of the Act. The consequence of that finding is that, because of s.494C(4) of the Act, the applicant is taken to have been notified of that decision seven working days after the date of the document, being 11 September 2013. That is more than 21 days before the applicant applied to the Tribunal for review of the Tribunal’s decision on 4 November 2013. The Tribunal was correct to conclude it did not have jurisdiction to consider the applicant’s application for review of the delegate’s decision.

2. I propose, therefore, to order that the application be dismissed. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as second respondent.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  11 March 2016