Singh v Minister for Immigration

[2010] FMCA 305

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 305

MIGRATION – Visa cancellation by Minister’s delegate – applicant’s authorised recipient validly notified of decision by registered mail –further notification to authorised recipient – whether second notification gives rise to new period in which review application can be commenced.

ESTOPPEL – Applicant’s authorised recipient validly notified of decision by registered mail –further notification to authorised recipient – whether estoppel arises from second notification which prevents Minister from asserting that review application commenced out of time.

Acts Interpretation Act 1901, s.25
Migration Act 1958 (Cth), ss.116, 127, 338(3), 347(1)(b), 494B(4)(C), 494A, 494B, 494C and 494D r.2.55(1)(a). ss.494D(2) 494D(1)
Migration Regulations 1994, rr.2.45, 2.54, 4.10(1)(b), form 956

Essex County Council v Essex Incorporated Congregational Church Union [1963] AC 808
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193
Macrae v St Margaret's Hospital (1999) 19 NSWCCR 1; [1999] NSWCA 381
Pillai v Minister for Immigration & Multicultural Affairs [2001] FCA 1756
H v MIMA (2002) 118 FCR 153
Zhang v Minister for Immigration and Citizenship (2007) 161 FCR 419
Manaf  & Anor v Minister for Immigration & Anor [2009] FMCA 139
Minister for Immigration & Citizenship v Abdul Manaf [2009] FCA 963; (2009) 111 ALD 437

Applicant: SUKHWANT SINGH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 463 of 2009

Judgment of: Jarrett FM

Hearing date: 3 November 2009

Date of Last Submission: 3 November 2009

Delivered at: Brisbane

Delivered on: 6 May 2010

REPRESENTATION

Counsel for the Applicant: Mr Boccabella

Solicitors for the Applicant: A.J. Torbey & Associates

Counsel for the Respondents: Mr Brady

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application filed on 13 July, 2009 is dismissed.

2. No Order as to costs.

SINGH v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 305

MIGRATION – Visa cancellation by Minister’s delegate – applicant’s authorised recipient validly notified of decision by registered mail –further notification to authorised recipient – whether second notification gives rise to new period in which review application can be commenced.

ESTOPPEL  – Applicant’s authorised recipient validly notified of decision by registered mail –further notification to authorised recipient – whether estoppel arises from second notification which prevents Minister from asserting that review application commenced out of time.

Acts Interpretation Act 1901, s.25
Migration Act 1958 (Cth), ss.116, 127, 338(3), 347(1)(b), 494B(4)(C), 494A, 494B, 494C and 494D, r.2.55(1)(a), ss.494D(2), 494D(1)
Migration Regulations 1994, rr.2.45, 2.54, 4.10(1)(b), form 956

Essex County Council v Essex Incorporated Congregational Church Union [1963] AC 808
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193
Macrae v St Margaret's Hospital (1999) 19 NSWCCR 1; [1999] NSWCA 381
Pillai v Minister for Immigration & Multicultural Affairs [2001] FCA 1756
H v MIMA (2002) 118 FCR 153
Zhang v Minister for Immigration and Citizenship (2007) 161 FCR 419
Manaf  & Anor v Minister for Immigration & Anor [2009] FMCA 139
Minister for Immigration & Citizenship v Abdul Manaf [2009] FCA 963; (2009) 111 ALD 437

Applicant: PARGAT SINGH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 464 of 2009

Judgment of: Jarrett FM

Hearing date: 3 November 2009

Date of Last Submission: 3 November 2009

Delivered at: Brisbane

Delivered on: 6 May, 2010

REPRESENTATION

Counsel for the Applicant: Mr Boccabella

Solicitors for the Applicant: A.J. Torbey & Associates

Counsel for the Respondents: Mr Brady

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application filed on 13 July, 2009 is dismissed.

2. No Order as to Costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 463 of 2009

SUKHWANT SINGH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

BRG 464 of 2009

PARGAT SINGH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These applications for relief to set aside two decisions made by migration review tribunals (constituted by the same person) were heard together.  The terms of the decisions that are challenged are in all material respects the same.

2. The same legal representative appeared for each applicant before me.  The applicants each relied upon written submissions, but the terms of those submissions were the same in both applications.

3. Similarly, the first respondent was represented in each application by the same legal representatives and one set of written submissions was relied upon in both applications.  The second respondent did not appear in either application.

4. The points at issue in each application are the same and the minor factual variations between each application have no bearing upon the resolution of those issues.  These reasons deal with both applications.

5. As set out in my findings below, the Minister (by a delegate) gave two notifications to each applicant that their student visas had been cancelled.  The notifications were given some days apart and they were inconsistent in that they each nominated a different day as the day by which any application for review of the decision to cancel needed to be lodged.  The applicants both lodged applications for review within the time specified in the second notices, but the tribunal in each case decided that it had no jurisdiction because the applications for review ought to have been lodged within the time specified in the first notices.

6. In my view, having regard to the facts there is one critical issue common to both cases. Assuming that there have been two notifications of a decision to cancel a visa given pursuant to s.127 of the Migration Act that give inconsistent dates by which an application for review of that decision must be commenced, what, if any, is the legal effect of the specification of a second date for the institution of an application for review?

7. For the reasons that follow, I conclude that in these cases the specification of a second date for the institution of an application for review has no legal effect whatsoever.

Background

1. Both applicants were the holders of a Subclass 573 Higher Education Sector Visa granted in June, 2008. 

2. In January, 2009 both applicants were notified that the Minister was considering cancelling of their visas. The reasons for that are not important to the resolution of the issues before me. The proposed cancellations were to be made under s.116 the Migration Act 1958 (Cth).

3. On 5 February, 2009 both applicants caused a form 956 (“Appointment of a migration agent or exempt agent or other authorised person”) to be lodged with the Department of Immigration and Citizenship.  By that form, they appointed Mr John Young of 147 Lake Street, Cairns Queensland as their migration agent, authorised him to act on their behalf and receive written communications “for my application” (see part F of the form).  At the time the form was lodged, however, no visa applications were on foot.  Both applicants were visa holders rather than visa applicants.

4. The form 956 also contained Mr Young’s consent to his appointment and to the use of electronic communication (fax, email or other electronic means) between him and the Department.

5. The Department must have accepted the notification of Mr Young as the applicants’ authorised recipient because the delegate commenced to correspond with Mr Young at the address notified in the form (147 Lake Street Cairns). 

6. The delegate proposed an interview with each applicant in February, 2009 and Mr Young wrote on 16 February, 2009 expressing his intention to attend the interview.  This letter is important, not because of the content, but because the letterhead was set out thus:

   IMMIGRATION AGENTS

   Postal Address  Office Address
   PO Box 15.  147 Lake St Cairns.
   Port Douglas  Queensland, 4870
   QLD 4877
   Phone – FAX [phone]

   Mobile [phone]
   Email [email protected]
   Web Address; type="1">

7. On 24 February, 2009 the delegate gave the applicants a letter setting out some information and inviting comment.  The letters were addressed to Mr Young at his Lake Street address in Cairns.  The letters bear the notation “[Hand Delivered]”.

8. Using the same form of letterhead that he had used previously, Mr Young replied on behalf of the applicants by a letter which appears undated.  The content is not otherwise relevant.

9. On 5 March 2009, the Minister (by a delegate) decided to cancel both visas. Two letters headed “NOTIFICATION OF CANCELLATION UNDER SECTION 116 OF THE MIGRATION ACT 1958”, each dated 5 March, 2009 were sent by registered post addressed to Mr Young. There was one letter for each applicant. According to the applicants’ case this is where the trouble began. The letters were addressed and dispatched to Mr Young’s post office box address in Port Douglas as set out on his letterhead, not his street address in Cairns.

10. The letters enclosed a copy of the decision record.  The decision record appears to comprise 4 pages printed on both sides of the page.  Additionally, the decision record had three attachments – “A”, “B” and “C”.  Pages 5 and 6 of the decision record is headed “Notification of Decision”.  There is a second heading in the following terms: “Part C – notification of decision to cancel visa under s116 of the Migration Act 1958”.  In both cases, that part of the decision record headed “Notification of Decision” was incomplete – in the case of Sukhwant Singh item 8 of the pre-printed form was incomplete because the time of signing was missing and in the case of Pargat Singh items 2 and 8 were incompletely filled in.  Both notices, however, nominated the close of business on 25 March, 2009 as the time by which a review application needed to be made.  The applicants did not suggest that those minor deficiencies (if that be what they are) invalidated the notices.

11. The Minister’s decisions to cancel the applicants’ visas were MRT-reviewable decisions within the meaning of s. 338(3) of the Act.

12. On 16 March, 2009 Mr Young wrote to the Minister’s delegate noting that he had that day received the notification letters.  He noted that the letters were sent to his post office box rather than the Lake Street address in Cairns.  It was asserted that an error had therefore been made by the Department and that the Department may wish to notify the applicants “correctly”.

13. The following day the delegate sent to Mr Young, by email, a separate letter in respect of each applicant.  The letters were dated 17 March, 2009 and they were in the same terms as those sent to Mr Young on 5 March, 2009 with a couple of exceptions.

14. The first departure from the letters of 5 March, 2009 was that each new letter nominated the close of business on 26 March, 2009 as the time by which any application for review of the cancellation decision needed to be made.  The letters of 5 March, 2009 specified the deadline as the close of business on 25 March, 2009.

15. The second departure concerns the decision record included with each letter.  That part of the decision record headed “Part C – notification of decision to cancel visa under s116 of the Migration Act 1958” was different.  It too, nominated the close of business on 26 March, 2009 as the time by which any application for review of the cancellation decision needed to be made (see item 6 of the form).  There are other differences.  Part C purports to have been signed on 5 March, 2009, but it is clear enough from comparison with the naked eye that the signatures on the Part C documents delivered on 17 March, 2009 are different to the signatures on the Part C documents delivered with the letters of 5 March, 2009.  Item 2 of Part C of the form in respect of Pargat Singh is also complete whereas it was not in the document delivered on 5 March, 2009.

16. This time each letter was addressed to Mr Young using his street address in Cairns.  They were sent, however, by email.

17. The applicants both lodged their applications for review by a migration review tribunal before the close of business on 26 March, 2009 as they were invited to do by the delegate’s second notification.

18. The tribunal, however, dismissed the applications for review on the basis that each had been made after the time limited for such applications had expired – namely the close of business on 25 March, 2009 which was the time specified in the letters of 5 March, 2009.

The Tribunals’ Reasoning

1. There is no material difference in the reasoning of the tribunal in each case. It is therefore convenient to refer to both decisions compendiously as “the decision” or similarly.

2. The Tribunal found that:

   a)the applicants were seeking review of an MRT-reviewable decision covered by s.338(3) of the Act;

   b)the applicable prescribed period within which to commence a review application was 7 working days starting when the applicants were notified of the decision;

   c)the notification letters dated 5 March, 2009 were dispatched within 3 working days of the date on which they were dated;

   d)the contents of the delegate’s decision notices, dated 5 March 2009, complied with the requirements of s.127(2) of the Act;

   e)the notifications of 5 March, 2009 were effectively “given” to the applicant under r.2.55 of the Migration Regulations 1994;

   f)the notification letters of 5 March, 2009 were sent by registered post to the applicants’ representative’s post box address;

   g)the post box address was not nominated on the form 956, but was on the representative’s letterhead;

   h)notwithstanding that Mr Young suggested that he did not intend that he (or the applicants) receive the documents from the Department at the post box address, the notification was sent to the last post box address of the representative known to the Minister, and that was all that was required by r.2.55(3) of the regulations;

   i)unlike s.494B of the Act, which prescribes the methods of notification for a visa refusal, r.2.55(3) of the Regulations did not require that notification be posted to an address provided to the Minister by the recipient for the purposes of receiving documents, only that it be posted to the person’s last “residential address, business address or post box address known to the Minister” and that is what had been done;

   j)in any event, by operation of r.2.55(9), even if the delegate had made an error in the address to which he had sent the notification letters, that error was immaterial because Mr Young received the notification letters on 16 March, 2009;

   k)therefore the notifications of 5 March, 2009 were valid and time within which to commence review applications started on 16 March, 2009 and expired at the close of business on 25 March, 2009;

   l)the applications for review were commenced on 26 March, 2009 after time for doing so had expired and the tribunal therefore had no jurisdiction to hear and determine the applications.

3. As to the second notifications given on 17 March, 2009 the tribunal said:

   29.    The Tribunal notes there is authority to support the argument that a second notification supersedes an earlier valid notification in Manaf v MIAC [2009] FMCA 139 (O'Dwyer FM, 6 March 2009). However, that judgement seems to depart from the Federal Court authority in Zhang v MIAC [2007] FCFCA 15I (Finn, Kenny and Greenwood JJ, 17 September 2007) which held that a second notification has no effect on the prescribed period in which an applicant may apply for review, if an earlier valid notification has been given to the applicant in respect of the same decision. In the circumstances, the Tribunal considers it should follow the Federal Court decision in Zhang.

   30. As the initial notification was valid and effectively given to the applicant, the prescribed period in which a review application may be made commenced from the day it was taken to have been received, that is, 16 March 2009.

Consideration

1. When the Minister decides to cancel a visa, he or she is to notify the visa holder of the decision in the prescribed way: s.127 of the Act. That prescribed way is in writing: r.2.45 of the Migration Regulations 1994. In combination, s.127 and rr.2.45 and 2.54 require that the Minister give to a former holder of a visa a “document” notifying of the cancellation of that person’s visa: Zhang v Minister for Immigration and Citizenship (2007) 161 FCR 419 at 421. Such a written notification is also a document for the purposes of the Act: s.25 Acts Interpretation Act 1901.

2. The applicants gave the Minister notice of the name and address of another person authorised by them to receive documents under the Act or the regulations on their behalf, as they were entitled to do: s.494D(1) of the Act. It was not submitted by the Minister that the appointment of Mr Young as the applicants’ authorised agent was not effective. Indeed, it was the Minister’s case that the appointment was effective to nominate Mr Young as the applicants’ authorised recipient.

3. Notice of the appointment having been given, the Minister was obliged to “give” to Mr Young, as the applicants’ authorised recipient, any documents that the Minister would otherwise have given to them: s494D(1) of the Act. If the Minister gives a document to Mr Young, the Minister is taken to have given the documents to the applicants: s. 494D(2) of the Act.

4. In circumstances where the applicants had authorised another person to receive documents on their behalf, the Minister was obliged to give the documents to that authorised recipient in accordance with s.494A of the Act.  That section provides for how a person is to be given a document by the Minister where the Minister is not obliged to use a method prescribed by s.494B of the Act.  It applies to the giving of a document to a “person”.  The applicants’ authorised recipient, Mr Young, is a “person” within s.494A of the Act and so when giving him a document for the purposes of the Act, s.494A applies.

5. In my view, r.2.55 did not apply to direct how Mr Young was to be given the requisite notices. Regulation 2.55 only applies to the giving of a document to “a holder or former holder of a visa relating to… the cancellation of a visa under the Act”: r.2.55(1)(a). Mr Young was not a visa holder or former visa holder for the purposes of reg. 2.55 and that regulation says nothing of giving a document to person who is validly notified as the authorised recipient for the visa holder or former visa holder. In such a case notification is carried out in accordance with s.494A of the Act.

6. To the extent that the tribunal decided that r.2.55 governed the way in which the relevant notifications should be given to Mr Young as authorised recipient for the applicants, it was, with respect, in error. The parties before me agreed on this point and both submitted, perhaps for different reasons, that the relevant notification provisions were ss.494A, 494B, 494C and 494D of the Act and not r.2.55.

7. Section 494B of the Act prescribes certain methods by which the Minister may give a document to a person for the purposes of the Act or the regulations.  In some cases the use of a method set out in s.494B is prescribed.  Where the Minister is permitted or required to give a document to a person under the Act or regulations and no method for doing so is prescribed, the Minister may give the document to the person by any method considered appropriate: s. 494A(1).  The method adopted might be one of the methods specified in s.494B: 494A(1) of the Act.

1. In the present case, the use of a method set out in s.494B was not prescribed, but the Minister’s delegate chose to adopt one of those methods for giving the relevant notifications to Mr Young.  He did so by dating the document and then dispatching it within 3 working days of the date of the document by prepaid post to Mr Young: s.494B(4).  To be effective delivery, however, the document must have been dispatched to:

   a)the last address for service provided to the Minister by Mr Young (the recipient) for the purposes of receiving documents; or

   b)the last residential or business address provided to the Minister by Mr Young for the purposes of receiving documents.

   See s.494B(4)(c).

2. The phrase “address for service” is not defined in the Act.  Nor is it used in the form 956.  I do not think that I could safely conclude that the form acts as a notice of an “address for service” which would bind either the Minister or the applicants.  An address for service is usually a necessary requirement for a party to proceedings in a court.  The specification of such an address provides a place at which documents in the proceedings may be left or to which they may be sent for the other party to the litigation.  If the rules of the relevant court as to service at the address for service are complied with, certain consequences, such as deemed service, flow.

3. The form 956 in these cases required the specification of a postal address for the authorised recipient in part 9 of the forms, but beyond that there is nothing in the form that suggests that the address so given is the “address for service”.

4. Mr Young is, apparently, an immigration agent (so described in the form 956).  He has a migration agent registration number and has a business name – “Immigration Agents”.  As set out above, he has a postal address and an office address, the details of which appear on his letterhead.  Other contact details, such as telephone numbers, a facsimile number, an email address and a website address also appear on the letterhead.

5. I doubt that there is scope for argument that the purpose of having such details on letterhead used by a person in business is so that others wishing to make contact with the business may do so using those details.  It is difficult to imagine what other purpose might be served by having them present.  The specification of a postal address provides either a business address or a means of access to the business or to that place of business.  Moreover, the specification of a postal address is to invite postal communication using that address.  If that is not the case, what other purpose would be served by the address?

6. In my view, two postal addresses have been specified by Mr Young – the first (127 Lake Street, Cairns) in the form 956 and the second (PO Box 15, Port Douglas, QLD 4877) in his letterhead.

7. Moreover, there are two business addresses provided to the Minister by Mr Young for the purposes of receiving documents – his Cairns street address and his Port Douglas post office box. Both were provided at the same time (by Mr Young’s letterhead) and both were provided after the form 956 was given to the Department.  They could both equally be described as the last business address provided to the Minister by Mr Young for the purposes of receiving documents.  The specification of those addresses on his letterhead was an invitation to use the addresses for the purposes of communication with him: e.g., Macrae v St Margaret's Hospital [1999] NSWCA 381.

8. The Minister’s delegate was entitled, in my view, to send the relevant notices to the post office box address, it being one of the last business addresses provided to the Minister by Mr Young for the purposes of receiving documents.  If Mr Young did not want business mail sent to his postal address as set out on his letterhead, no doubt he would not have included it on his business stationery.

9. In any event, even if my view is wrong and the delegate was obliged to send the notifications to Mr Young at his Cairns street address, Mr Young nonetheless received the document on 16 March, 2009.  Notwithstanding the error in the address, both he and the applicants are thereby taken to have received the document on that day: s.494C(7). 

10. The outcome of an application of s.494C(4) (if the first notices were sent to the right address) or s.494C(7) (if an error was made in the address) is, on the facts of these cases the same.  Each applicant is taken to have received the notification document on 16 March, 2009 and time for the institution of review proceedings commences from that day. 

11. If the applicants are taken to have received the document on 16 March, 2009, they had until the close of business on 25 March, 2009 to lodge their review applications.   So much was clear – until the receipt of the second notification on 17 March, 2009.

12. In my view, the notification letters of 17 March, 2009 were not merely an attempt by the delegate to give the applicants a copy of what he had sent on 5 March, 2009.  Those letters were fresh notifications of the decision to cancel their visas.  I come to that conclusion because:

    a)The notification letters are dated 17 March, 2009;

    b)The letters are materially different to those sent on 5 March, 2009 in that they specify a different date as the date by which an application for review is to be lodged;

    c)The enclosures with the letters are also materially different in that:

    i)They specify a different date as the date by which an application for review is to be lodged;

    ii)The Part C document is re-signed, although it purports to be dated 5 March, 2009.

13. In my view, the legal effect of the fresh notifications was not, however, to recommence or enlarge the period during which an application for review might be made.  The issue is not answered by considering whether more than one notification of the relevant decisions is authorised by the Migration Act.  The issue is answered by a consideration of the provisions that prescribe the time within which to commence a review application. 

14. Before I do that, however, I will consider the applicants’ case based upon the decision of the Full Federal Court in H v MIMA (2002) 118 FCR 153. In that case, two relevant notifications were sent: one to the applicant and the other to his migration agent. The effect was to create two different periods, commencing and expiring at different times, within which the applicant might have commenced a review application with a refugee review tribunal.

15. The tribunal held that it was without jurisdiction because the application before it had not been commenced in time.  It calculated the time having regard to the notice given to the applicant personally.  It did not consider the notice given to his agent.  The Full Court decided that the tribunal should have had regard to both notifications and that the tribunal erred when it ignored the notification sent to the applicant’s migration agent.  If that notification was taken into account, the application for review was within time because the time limited for bringing a review application was longer than the period allowed if the applicant was personally served. 

16. At para [9] their Honours said:

    “When the case came on for hearing before the Tribunal, it decided that it could not determine the application, taking the view that it had been commenced out of time. The Tribunal acted on the assumption that the only relevant dates were, first, the day on which the appellant was personally handed notification of the delegate’s decision (26 or 27 October) and, second, the date on which the application for review was lodged (8 November). If these were the relevant dates, the Tribunal correctly declined jurisdiction. But the Tribunal fell into error because it paid no regard to the notification sent to the migration agent. On the basis of this notification, there are two alternative bases for concluding that the application for review was within time. The first is that the notification to the migration agent was the only relevant notification of the decision, so that the application for review could be lodged at any time before 14 November.  This approach assumes that once the Minister first notified the appellant of the decision, that exhausted the Minister’s obligation under s. 66.  If that be correct, any further “notifications” (for example by personally serving the appellant with a copy of the decision), would not be notifications under the statute and would have no legal consequence.  The second basis for holding the application to be within time assumes that the second notification cannot be ignored, and that it brought into operation a second timetable within which the appellant could file a notice of review. In that event the appellant has been given two inconsistent timetables within which to make an application for review and, in the absence of any statutory basis for giving one priority over the other, the appellant was entitled to choose the timetable that best suited him.  That is what occurred in this case, albeit the appellant did not know he was making a choice.”

17. Counsel for the applicant submits that both alternatives identified above were endorsed by the Full Court and he presses that the present case comes within the second of the alternatives identified above.

18. The above passage was considered by a later Full Court in Zhang v Minister for Immigration and Citizenship [2007] FCAFC 151. Of the above passage, the Court determined that it was unnecessary to express any view “on the correctness or otherwise of the second of the two bases mentioned in H and in particular whether there can be two operative and effective notifications made” (at [25]).

19. In Manaf & Anor v Minister for Immigration & Anor [2009] FMCA 139 the applicant and her family had entered Australia on a temporary business visa (and related visas). Subsequently, she lodged an application for a further visa and in doing so she gave her address to which correspondence could be sent (the first address). The Minister’s delegate refused the further visa application. The notification of the visa refusal was sent to the applicant by registered post to the first address. The registered post, however, was not received by the applicant and was returned to the Department soon after its dispatch. Between the date of the dispatch of the registered post and its return two things happened:

    a)First, by operation of s.494C(4) of the Migration Act the applicant was taken to have received the notification letter; and

    b)Second, and after the first had happened, she advised the Department of a change of address (the second address).

20. The Department sent another registered letter to the applicant (before the return of the first letter) informing her of the refusal of her visa application. This second letter was not sent to the second address, but sent to a wrong address. That letter was also returned to the Department.  The applicant did not become aware of the refusal of her visa application until her son was detained at the Melbourne Airport when attempting to leave the country.  The applicant asked to be re-notified of the decision, but that was refused by the Department.  On the advice of the Department the visa applicant sought to test the validity of the first notification given by the Department by way of an application for review before a MRT.  The Tribunal decided that the first notification was effective (applying s. 494B(4) of the Act) and that the application for review was incompetent because it was not commenced within the requisite time.

21. Upon application for orders in the Federal Magistrates Court, the applicant raised three grounds upon which she contended that the tribunal had made an error.  The second of those grounds is relevant for present purposes.  In that ground the applicant contended that the second notification letter sent to the wrong address was in effect a re-notification and that the re-notification superseded the earlier notification (which was found by the tribunal to be a valid).  Accordingly, on her case the correct inquiry was whether that second notification was properly given and attracted the operation of s.494B in part or at all.  Because, the Department had chosen to re-notify, but had done so incorrectly, there was in fact, no valid notification.

22. The Federal Magistrate found that the Department had elected to re-notify the applicant of the visa decision at her second address.  Accordingly, his Honour concluded that “the first notification is redundant and cannot form the basis, in my view, for the calculation of prescribed time limits”.  His Honour went on to hold that the attempted re-notification failed because it was clearly sent to the wrong address.  Accordingly, his Honour found that the tribunal’s determination that there was a valid notification (the first letter) was erroneous.

23. His Honour’s decision was set aside on appeal.  In Minister for Immigration & Citizenship v Abdul Manaf [2009] FCA 963 Sundberg J (sitting as the Full Court of the Federal Court of Australia) dealt with an application to extend time within which to commence an appeal and the appeal itself. His Honour determined during the course of his reasons that:

    a)Consistent with previous authority, s.494C of the Act does not create a rebuttable presumption of fact as to receipt of a notification sent using a method prescribed by s. 494B of the Act. 

    b)The first notification was sent using a method prescribed by s.494B of the Act and the visa applicant was taken to have received the document in accordance with s.494C.

    c)The defect (ie., sending the letter to the wrong address) in the second notification letter could not affect the validity of a notification that had already been “taken” or “deemed” to have occurred prior to the second notification letter being sent.

    d)Section 347(1) of the Act requires an application for review to be made in the approved form and be given to the Tribunal within the prescribed period (21 days after the notification of the decision by the first notification letter). The application was not made within the prescribed period, and accordingly was not competent. No subsequent letter could confer on the Tribunal jurisdiction it did not have.

24. In opposition to the extension application and the appeal, the visa applicant submitted that the Act did not prevent the Minister notifying a decision on more than one occasion.  After discounting arguments based upon Minister for Immigration and Multicultural Affairs v Bahwadj (2002) 209 CLR 597 and s.33(1) of the Acts Interpretation Act 1901, his Honour turned to the her argument that the decision in H recognised that more than one notification might be given pursuant to the Migration Act.

25. After setting out the passage from H I have set out above, his Honour said:

    50.    In Zhang v Minister for Immigration and Citizenship (2007) 161 FCR 419 the appellant relied on the second basis in H, which the Full Court described at [23] as an “ambitious claim”. At [25] their Honours said it was unnecessary to express any view on the correctness or otherwise of the second basis in H and in particular “whether there can be two operative and effective notifications made”. They were of the opinion that in the case before them two methods of notification were not utilised giving rise to inconsistent timetables.

    51.  In my view the Full Court in H was not endorsing both alternative bases. Only one can be the correct approach. An assumption is part of each of them. I understand the Court to have said that on whichever of the two bases argued was the correct one, the application for review was within time. It was thus unnecessary to decide which was the true view. For the reasons I have given, the first basis is to be preferred. That would appear to have been the opinion of the Court in Zhang.

26. In my view, Sundberg J’s decision in Manaf binds me to hold that there cannot be two timetables for the commencement of a review application.  His Honour took the clear view that the first of the alternative bases identified in the above passage from H was the correct and preferred view.  His Honour rejected the second.  That must be so, because his Honour’s reasons reveal that after the Federal Magistrate’s decision the Department sent another notification letter to the applicant (the third letter).  On the basis of that notification, the applicant instituted a review before a MRT within a period calculated from the receipt by her of the third letter.  That review was pending at the time of the appeal before Sundberg J.  Of that third letter his Honour said:

    27     The respondent advanced three matters she said should lead to the refusal of an extension of time. The first was that an appeal is of academic interest only, and will not determine any question now at issue between the parties. The respondent has a review proceeding on foot in the Tribunal in respect of the delegate’s decision. That review will determine whether she is entitled to the visa. It was submitted that if an extension of time were granted and the appeal upheld, that would not affect the conduct of the review or the validity of the Tribunal’s decision on the review. The position would be the same if the appeal were to be dismissed.

    28     The contention that the respondent’s application for review will determine her right to a visa is in my view much weaker than the Minister’s strong case described at [26]. On that case, the third notification letter was incapable of having any effect because the first notification letter was effective. Accordingly the Tribunal would have no jurisdiction to entertain the application. Section 347(1) requires an application for review to be made in the approved form and be given to the Tribunal within the prescribed period. The prescribed period in reg 4(10)(1)(a) is 21 days after the notification of the decision. Notification took place on 16 August 2007. The current application was not made within the prescribed period, and accordingly is not competent. The Tribunal has no jurisdiction to entertain it. The Department’s letter of 24 March 2009 cannot confer on the Tribunal jurisdiction it does not have. The respondent’s discretionary consideration depends on the Minister’s contention, just described, being erroneous. All I need say at this stage is that in view of the strength of the Minister’s case, I do not regard this discretionary consideration, which is at odds with that strong case, to be sufficiently persuasive to cause me to refuse an extension of time.

27. His Honour relied upon paragraph [28] in particular to dispose of the appeal.

28. Before passing from H and Manaf, I note that neither decision dealt with a notification under s.127 of the Act – both dealt with notifications under s.66(1) of the Act. The parties before me did not suggest that affected their arguments on this point.

29. I earlier said that I thought that the issue was resolved by reference to the provisions dealing with the commencement of review applications.

30. Section 347 of the Act provides:

    347 Application for review by Migration Review Tribunal

    (1) An application for review of an MRT-reviewable decision  must:

    (a) be made in the approved form; and

    (b) be given to the Tribunal within the prescribed period, being a period ending not later than:

    (i) if the MRT-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—28 days after the notification of the decision; or

    (ii) if the MRT-reviewable decision is covered by subsection 338(5), (6), (7) or (8)—70 days after the notification of the decision; or

    (iii) if the MRT-reviewable decision is covered by subsection 338(9)—the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision; and

    (c) be accompanied by the prescribed fee (if any).

1. The decisions in the present applications are MRT reviewable decisions within s. 338(3) of the Act (as it stood at the relevant time).

2. Regulation 4.10 provides:

   4.10 Time for lodgement of applications with Tribunal

   (Act, s 347)

   (1) For paragraph 347 (1) (b) of the Act, the period in which an application for review of an MRT-reviewable decision must be given to the Tribunal:

   (a) …; or

   (b) if the MRT-reviewable decision is mentioned in subsection 338 (3) or (3A) of the Act — 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; or

   …

3. Both s.347(1)(b) and r.4.10(1)(b) are clear that the relevant time period is calculated by reference to “notice” “or notification”. The text of the legislation does not permit of a construction that would accommodate multiple notifications so that the time limit might be calculated from the latest notification. If that was intended, the Act and Regulations would so provide. Moreover, if the time within which to commence a review application could be reset or be recommenced, by the issue of a further notification letter, that would repose in the Minister (or a delegate) a discretion that is not expressly provided for in the legislation and about which there are no stated limits. That such a position exists under the Act was expressly rejected by Sundberg J in Manaf where, in the course of dealing with an argument that s.33(1) of the Acts Interpretation Act permitted the power to notify in the Migration Act to be exercised from time to time,  his Honour said:

   48 If, contrary to my view, s 33(1) could in an appropriate statutory context operate in the manner sought by the respondent, it could not do so in the present case because the notification scheme of the Act, especially s 494C, discloses a contrary intention. The prescriptive timing regime that runs through the Act is inconsistent with the notion that, as the Minister put it, “you can reset the clock as often as you like by just sending a new letter”.

   (my emphasis)

Estoppel

1. The applicants argue, in the alternative, that the Minister is estopped from denying the efficacy of the notice of visa cancellation issued by the delegate on 17 March, 2009 which identified 26 March, 2009 as the deadline for lodging an application for review to the MRT.  The applicants submit that although it is very rare for estoppel to play any role in administrative law, this is one such case where it does have a role to play.  The applicants written submissions argue:

   39.    … The estoppel sought is of very narrow compass and is defined in Mr Singh's case as that (sic.) Minister is estopped from denying the efficacy of the notice of visa cancellation issued by the delegate in a letter dated 17 March 2009, which identified 26 March 2009 as the deadline for lodging an application for review to the MRT (see pages 59 and 72 of the bundle).

   40. Thus the estoppel here is not to deny the legality of any executive act but seeks an estoppel to deny the executive from denying the efficacy of its own executive act.

   41. There is no need to characterise what was the legal effect (if any) of the first notice of visa cancellation issued on 5 March 2009.

   42. What is simply sought is an estoppel preventing the executive from denying the efficacy of its own act, namely that the notice of visa cancellation issued by the delegate in a letter dated 17 March 2009, which identified 26 March 2009 as the deadline for lodging an application for review to the MRT (see pages 59 and 72 of the bundle) has full force and effect.

2. Although there are obiter statements to the effect that the principles of estoppel my have a place to play in administrative law in Australia (e.g., Emmett J in Pillai v Minister for Immigration & Multicultural Affairs [2001] FCA 1756 at 23), I was taken to no authoritative decision to that effect. There are statements to the contrary (e.g., Gummow J in Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 213).

3. The applicants relied upon the following passage from the judgment of Mason CJ Attorney-General (NSW) v  Quin (1990) 170 CLR 1 at 18:

   What I have just said does not deny the availability of estoppel against the Executive, arising from conduct amounting to a representation, when holding the Executive to its representation does not significantly hinder the exercise of the relevant discretion in the public interest. And, as the public interest necessarily comprehends an element of justice to the individual, one cannot exclude the possibility that the courts might in some situations grant relief on the basis that a refusal to hold the Executive to a representation by means of estoppel will occasion greater harm to the public interest by causing grave injustice to the individual who acted on the representation than any detriment to that interest that will arise from holding the Executive to its representation and thus narrowing the exercise of the discretion: see the observations of Lord Denning M.R. in Laker Airways v. Department of Trade (1977) QB 643, at p 707; but see also the criticism of this approach by Gummow J. in Kurtovic, at pp 121-122.

4. It is necessary, however to record his Honour’s earlier reasoning to place that paragraph in context.  Earlier, his Honour said at p.17:

   …The Executive cannot by representation or promise disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion to be performed or exercised in the public interest, by binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or exercise of the power: see Watson's Bay and South Shore Ferry Co. Ltd. v. Whitfeld (1919) 27 CLR 268, at p 277; Ansett Transport Industries (Operations) Pty. Ltd. v. The Commonwealth (1977) 139 CLR 54, at pp 74-76; Malvaso v. The Queen (1989) 64 ALJR 44, at p 47; Birkdale District Electric Supply Co. v. Southport Corporation (1926) AC 355, at p 364; Cudgen Rutile (No. 2) Ltd. v. Chalk (1975) AC 520, at pp 533-534; Southend-on-Sea Corporation v. Hodgson (Wickford) Ltd. (1962) 1 QB 416, at pp 423-425; Western Fish Products Ltd. v. Penwith District Council [1978] EWCA Civ 6; (1981) 2 All ER 204. Accordingly, it has been said that "a public authority ... cannot be estopped from doing its public duty", to use the words of Lord Denning M.R. in Lever Finance v. Westminster London Borough Council (1971) 1 QB 222, at p 230. See also Rootkin v. Kent County Council (1981) 1 WLR 1186; (1981) 2 All ER 227. As Gummow J. observed in Minister for Immigration v. Kurtovic (1990) 92 ALR 93, at p 111, the principle has been explained on the footing that:

   "in a case of a discretion, there is a duty under the     statute to exercise a free and unhindered discretion and an     estoppel cannot be raised (any more than a contract might     be relied upon) to prevent or hinder the exercise of the     discretion; the point is that the legislature intends the discretion to be exercised on the basis of a proper     understanding of what is required by the statute, and that     the repository of the discretion is not to be held to a     decision which mistakes or forecloses that understanding".

   cf. Attorney-General of Hong Kong v. Ng Yuen Shiu [1983] UKPC 2; (1983) 2 AC 629, at p 638.

   No doubt the principle gains some of its force from the circumstance that the discretion has a legislative foundation and it is not readily to be supposed that the legislature intended that a proper exercise of the discretion in the public interest was to be frustrated, hindered or circumvented by executive action. Nonetheless there is no reason why the same principle should not apply to common law powers and functions of the Crown or the Executive when they involve the making of decisions in the public interest.

5. There is a significant distinction between the facts in Quin and the applications before me.  In Quin it was suggested that the propounded estoppel operated against the exercise in a particular way of a statutory discretion.  In the present applications, no question of discretion is involved. 

6. The applicants submit that the estoppel operates either:

   a)so as to prevent the MRT from denying itself jurisdiction to hear the applicants’ review applications.  That is to say, in practical terms the estoppel will operate so as to confer upon the MRT jurisdiction where it does not otherwise exist; or

   b)the Minister is estopped from denying before this Court that the applicants had until the close of business on 26 March, 2009 to lodge their applications for review.  That is to say, the estoppel operates against the Minister in this Court.

7. As to the first proposition above, there are some other facts that set these applications apart from Quin. Before the tribunal, the Department, the Minister and the Minister’s delegate are not parties.  The applicants apply for a review and the process is an inquisitorial one regulated by the Migration Act.  The applicant’s entitlement to, and the tribunal’s power to conduct a review, are regulated by the Migration Act and the regulations made pursuant thereto. 

8. In the context of an estoppel by representation, it is difficult to identify  any representation by the tribunal that the applicants have relied upon.  The representation was made by the Minister (via the delegate), someone not a party to the review. 

9. As to the second proposition – that the estoppel operates in this court against the Minister, it is clear that neither agreement between parties, nor any estoppel can operate so as to confer on a court or a tribunal of limited statutory jurisdiction, a jurisdiction that it does not possess: Essex County Council v Essex Incorporated Congregational Church Union [1963] AC 808 at 820 and Sundberg J in Manaf at [28]. To permit the operation of the estoppel as the applicants suggest would be to permit the conferral of jurisdiction upon a tribunal where it does not otherwise exist. It would leave the conferral of jurisdiction upon a tribunal in any particular case to the discretion of the Minister (or his or her delegate) who could exercise that discretion by giving another notification (that would not otherwise be efficacious). That discretion would seemingly be unfettered by any constraints set out in the Migration Act.

10. Ultimately the applicants’ estoppel point must fail for no other reason than this.  If time for the applicants’ reviews commenced to run on 16 March, 2009 (in accordance with the first notification) and the Act and regulations on their proper construction do not permit of another period within which to bring a review application, an estoppel could not operate to confer on the tribunal a jurisdiction that it does not possess. 

Good Faith

1. The applicants argue:

   50.    Further and/or in the alternative, there would be an absence of good faith if the second notification was not given legal efficacy.

   51.    An exposition of the law on good faith is found in the judgment of French J (as he then was) in WAFV of 2002 v Refugee Review Tribunal [2003} FCA 16 (17 January 2003) where French J observed:

   52 The authorities referred to above and the propositions set out by the Full Court in SBBS make it clear that absence of good faith, for the purposes of the Hickman provisos, is not limited to cases of dishonesty or malice or personal interest. It may be found in a reckless or capricious approach to the exercise of the power in question.  Consistently with the language of Dixon J in Hickman and Proctor and in Little, the term" good faith "is not to be considered in isolation from the process to which it is applied. An authority exercising a statutory power is required to act in good faith in the sense that the authority is required to make an honest attempt to exercise the power entrusted to it. An honest attempt to exercise the power is not demonstrated merely by the absence of dishonesty or malice or personal interest. And with respect to the contrary view expressed by Heerey J in SBAP it seems to me on the authorities that bad faith is not necessarily the obverse of good faith. Good faith requires more than the absence of bad faith. It requires a conscientious approach to the exercise of power.

   [Emphasis added]

   52. What is an absence of good faith in relation to Mr Singh, is not any immoral conduct on the part of the particular delegate. Here the delegate is acting impeccably. What creates the absence of good faith is the assertion by the Minister that the former visa holder can not rely on a notice from a delegate setting out the deadline for review to the MRT.

   53. In other words if the second notice dated 17 March 2009 is to have no effect then the issue of the two notices taken together amounts to an administrative act done in absence of good faith.

   54. What plainer absence of good faith is necessary than to issue a notice of visa cancellation identifying a deadline within which the former visa has to appeal, where if the person acts in reliance on that deadline, he will be out of time to appeal.

   55. The two notices read together sabotage the former visa holder's appeal rights.

   56. An act of sabotage of that kind is an act not done in good faith. The delegate may not have realised it at the time but the process of issuing the second notice would be capricious if the second notice is regarded as invalid.

   57. The only way that the second notice can not act as an act of sabotage is for that second notice dated 17 March 2009 to have full force and effect.

   58. It is submitted therefore that this Court find that the second notice dated 17 March 2009 was done in good faith. It follows that the notice of visa cancellation dated 17 March 2009 sent by email to Mr Singh's migration agent set the deadline for lodging an application for review of the visa cancellation to the MRT as 26 March 2009. The application for review was lodged on that day. The MRT therefore has jurisdiction to hear and determine the application.

2. In a passage immediately following that relied upon by the applicants (set out above), French J ( as his Honour then was) went on to say:

   53 Neither unreasonableness nor irrationality nor error of law or fact nor failure of procedural fairness is sufficient of itself to establish want of good faith. But a substantial departure from minimal standards of decision-making may be such as to indicate that a decision-maker has failed to adopt a conscientious approach to the task before it. It may be indicative of dishonesty or malice or actual bias or recklessness or capriciousness in the exercise of the power. The concept of "good faith" is evaluative. The threshold for finding its absence is high. It may in practice vary according to the nature and subject matter of the power being exercised as well as according to the circumstances of the particular case. In this sense it may be analogous to the variable standard imposed by the requirements of procedural fairness.

3. In submissions in reply, the applicants make it clear that they submit that any assertion by either respondent that the notice second in time has no effect gives the whole notice process in this case “the colour of an absence of good faith”.  It follows, it is said, that any assertion by the MRT to that effect “is part of that absence of good faith”.

4. The applicants further submit that the Minister’s assertion in these proceedings that the notice second in time has no legal effect is an assertion which would give the notice process “an absence of good faith because such an assertion would give the notice process a capricious colour”.

5. In my view, I must reject the applicants’ submissions.  Having given good and valid notices which commenced the time period in which to bring review applications, nothing that happened thereafter gives that “notice process” a capricious colour.

6. To succeed on this application, the applicants must demonstrate jurisdictional error on the part of the tribunal.  The task of the tribunal was to determine, first of all, that it had jurisdiction to decide the review applications before it.  The tribunal genuinely attempted to undertake that task.  Having regard to the conclusions that I have come to concerning the legal efficacy of the second notice in this case, the tribunal could come to no other conclusion than that at which it arrived.  Even if the second notice was given capriciously as the applicants argue, that does not give rise to jurisdiction where it does not otherwise exist.  Jurisdiction is not a matter of discretion and just as estoppel cannot create jurisdiction in a statutory tribunal where it is not otherwise conferred, nor can a finding of an absence of good faith.

Conclusion

1. The applicants have not demonstrated that the decision of the tribunal is attended by jurisdictional error.   The applications to this court must be dismissed.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Associate: Lauryn French

Date:6 May 2010