Song & Anor v Minister for Immigration

[2005] FMCA 685

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SONG & ANOR v MINISTER FOR IMMIGRATION [2005] FMCA 685

MIGRATION – MRT decision on jurisdiction – application to Tribunal outside prescribed period – posting of delegate’s decision to authorised recipient and not visa applicant – applicant requested communications to be sent to personal address – applicant deemed to have received decision – whether notification included address of Tribunal and date of document – adequate reasons given by Tribunal.

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.46(2)(b), 66, 66(1), 66(2)(d), 66(2)(d)(iv), 347, 347(1), 347(1)(b), 348(1), 368, 368(1), 474(1), 483A, 494B, 494B(4), 494C, 494C(4), 494C(4)(a), 494D, 494D(1), 494D(2)
Migration Regulations 1994 (Cth), regs.2.07, 2.07(4), 2.16(3), 4.10, 4.10(1)(a)

Attorney‑General of New South Wales v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729
Australian Postal Corporation v Forgie (2003) 130 FCR 279
Buck v Comcare (1996) 66 FCR 359
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135
Edwards v Giudice (1999) 94 FCR 561
Makhu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 221
Minister for Immigration & Ethnic Affairs v Naumovska (1983) 88 ALR 589
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Murphy v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 135 FCR 550
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Public Service Board of New South Wales v Osmond (1986) 159 CLR 656
Repatriation Commission v O’Brien (1985) 155 CLR 422
VEAN of 2002 v Minister for Immigration & Multicultural and Indigenous Affairs (2003) 133 FCR 570
VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407
Zhan v Minister for Immigration& Multicultural & Indigenous Affairs (2003) 128 FCR 469

First Applicant: MYUNG SOOK SONG

Second Applicant: SOO JI CHOI

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 2690 of 2004

Judgment of: Smith FM

Hearing date: 12 May 2005

Delivered at: Sydney

Delivered on: 16 June 2005

REPRESENTATION

Counsel for the Applicants: Mr J Patel

Solicitors for the Applicants: Davidson James & Associates

Counsel for the Respondent: Mr G Kennett

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. First applicant to pay the respondent’s costs in the amount of $1,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2690 of 2004

MYUNG SOOK SONG & SOO JI CHOI

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of the refusal by the Migration Review Tribunal (“the Tribunal”) to entertain an application for review of a decision of a delegate of the Minister.  The delegate on 4 May 2004 refused an application for a class TH (educational temporary) subclass 442 (occupational trainee) visa which had been lodged on 8 April 2004.  The application for review was lodged with the Tribunal by hand on 9 June 2004. 

2. On 27 July 2004, the Tribunal wrote to the applicant’s representative enclosing a “decision record” which said: 

   The Tribunal has made a decision that the application for review of a refusal of a Educational (Temporary) (Class TH) visa is ineligible for the following reasons: 

   Paragraph 347(1)(b) of the Migration Act 1958 requires that an application for review is given to the Tribunal within the prescribed period, being the period stated in Regulation 4.10.

   The prescribed period for applying for review was 21 calendar days from the date of notification of the Department’s decision.  You are taken to have been notified of the Department’s decision 13 May 2004.  The last date for lodgement of the application for review was 3 June 2004. 

   As the review application was lodged with the Tribunal on 9 June 2004, the review application was not lodged within the prescribed period for applying for review. 

3. An application to review this decision was made to this Court under s.483A of the Migration Act 1958 (Cth) (“the Act”) on 30 August 2004.  That provision gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. In the present case, the relevant jurisdiction of both courts is under s.39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”), to order the issue of a writ of mandamus to compel the Tribunal to exercise its jurisdiction. Necessarily, the applicant seeks to persuade me that the Tribunal’s refusal was attended by jurisdictional error, so that the limitations on the Court’s powers under s.474(1) would not prevent relief being given (see Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 at [76]).

4. The crux of the case is whether, applying the relevant legislative provisions to the relevant facts, the Tribunal was correct when it considered that the applicant was “taken to have been notified of the Department’s decision 13 May 2004” so as to fail to meet the 21 day time limit.  Counsel for the Minister accepted that I should decide this jurisdictional question for myself on the evidence now before the Court, and I am inclined to consider that this reflects a correct interpretation of the position of the Court when reviewing a decision of the Tribunal that an application to it was not “properly made under section 347” (see s.348(1), and c.f. Minister for Immigration & Ethnic Affairs v Naumovska (1983) 88 ALR 589 at 601, Buck v Comcare (1996) 66 FCR 359 at 362, and c.f. Australian Postal Corporation v Forgie (2003) 130 FCR 279 at [57], c.f. Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at [34] and [59] and cases there cited).

5. If this is wrong, it would be necessary for the applicant to establish that the Tribunal’s decision or its reasons for declining jurisdiction reveal legal error when addressing that question.  However, I do not consider that this would cause me to approach the matter differently nor to reach a different outcome.  This is because the three arguments presented by the applicant to overcome the time limitation turn on the legal effect of documents in the context of uncontested evidence which was before both the Tribunal and myself.  If accepted, the applicant’s arguments would not leave it legally open to the Tribunal to have reached any conclusion other than that it had jurisdiction.  If rejected, then the Tribunal reached the only decision which was legally open to it. 

The relevant facts

1. The factual basis on which the applicant applied for the visa, and the reasons on which the delegate refused it, are not relevant to the present case. It is sufficient for me to note that the delegate accepted that her visa application was made on the approved form (see s.46(2)(b) and reg.2.07 of the Migration Regulations 1994 (Cth) (“the Regulations”)). As required by the form and reg.2.07(4), the applicant provided her residential address at Strathfield. She also said that this was her postal address, and she also provided an “office hours” telephone number and facsimile number.

2. Parts J, K and L of the form can be sufficiently reproduced as follows (omitting how they were completed by the applicant): 

Part J – Options for receiving written communications
43	All written communications about this application should be sent to:  (Tick one box only)
Myself		►	All written communications will be sent to the address for communications that you have provided in this form.  Go to Part O
Migration agent		►	Go to Part M
Agents exempted from registration		►	You must complete form 956 Appointment of migration agent or exempted agent and attach it to this application form.  Go to Part O
Authorised recipient		►	This is a person authorised to receive written communications other than a migration agent.  All written communications that would otherwise have been sent to you in relation to this application will be sent to that person.
44	Do you want the authorised recipient to receive requests for medical investigation or information about your health, or the health of your spouse or dependants, that may arise or be revealed in the course of this application?
No
Yes

Part K – Authorised recipient details
Note:  Do NOT complete this section if you are a migration agent, go to Part M
45	Provide the details of the person who is authorised on your behalf to receive all written communications about this application.
Title:     Mr        Mrs        Miss        Ms						Other
Family name
Given names
Authorised recipient’s postal address
POSTCODE
Telephone number or daytime contact
Office hours			COUNTRY CODE (           )	AREA CODE (           )	NUMBER
Mobile phone
Part L  – Authorised recipient consent
46	As the authorised recipient named on this form, do you agree to DIMIA communicating with you by facsimile, e‑mail or other electronic means?
No
Yes	►	Give details

Facsimile	COUNTRY CODE (           )		AREA CODE (           )			NUMBER
E‑mail address
47	Signature of authorised recipient
Date	DAY /	MONTH /		YEAR
►►	Now go to Part O

1. In the present form, the applicant ticked “Myself” in response to question 43 under Part J, and also completed Part K by giving the name and a postal address of an authorised recipient, Miss Julia Choi, at Newington.  Under Part L, Miss Choi indicated her agreement to accepting this role, and inserted a facsimile number and her signature.  The form was dated and lodged on 8 April 2004. 

2. Documents on the Department of Immigration’s file, show the following in relation to the delegate’s notification of his adverse decision: 

   a)Folio 13 is a single page with Departmental letterhead and the heading “Notification of Decision on Visa Application”.  There is then a letter addressed to Miss Choi at her postal address, signed by the delegate.  Under his signature, there is typed his name, position, the date “4 May 2004” and “Parramatta Business Centre”. 

   b)The body of the letter refers to the application by the applicant, and says:  “Please find enclosed the notification of decision letter and decision record”. 

   c)Folios 12 and 11, are a letter addressed to the applicant, at Miss Choi’s postal address.  It is headed “Occupational Trainee (Subclass 442) Visa Application Refusal” and its body states: 

   I refer to your application for an Education (Temporary) (Class TH) visa lodged with this Department on 13 April 2004. 

   After assessing all the information provided and the merits of your application against the relevant Migration legislation, a decision has been taken to refuse your application.  This decision includes all family members in your application. 

   The requirements you did not satisfy and the reasons for the decision are set out in the attached decision record. 

   VISA APPLICANT’S REVIEW RIGHTS

   You can apply to the Migration Review Tribunal (MRT) for review of the decision to refuse your visa application.  If this letter is sent by registered post or by other prepaid means, you will be deemed to have received this letter in 7 working days, from the date of this letter.  Once the 7 working days have expired, you then have an additional 21 calendar days to lodge the application for review.  In any other instance, you have 21 calendar days, from the date of this letter, to lodge the application for review. 

   The enclosed leaflet provides information about review by the MRT, including addresses where the application can be lodged.  If you need further information about review by the MRT, you should contact one of the registries listed in the leaflet. 

   Lawful status

   You were granted a bridging visa when you applied for your Educational (Temporary) (Class TH) visa.  This visa will cease 7 calendar days after the last day you could apply for review as specified above.  This means that unless you hold another visa, your lawful status will cease at this time.  Unless you either apply for review by the MRT or have another valid visa application before the Department, you will need to make arrangements to depart Australia.  If you have not departed Australia by this time you will become an unlawful non‑citizen and liable for removal. 

   d)The letter concludes on folio 11 with the delegate’s signature and date “4 May 2004”, in the manner of the covering letter.  At the very end of the letter are the words “Enclosed MRT leaflet”. 

   e)Folios 10, 9 and 8 comprise a document headed “Record of Decision”, which at its conclusion is again signed by the delegate and dated “04 May 2004”. 

   f)Folio 14 is a document headed “NSW refusal checklist” which has what I find to be a hand written reference to a registered post number “RP16172946”.  It identifies the “notification letter” as reproducing folios 11‑13 and “the decision record” as folios 8‑10.  In relation to the notification letter, four boxes are ticked, indicating that a clerk has checked before posting the notification letter that the following matters were satisfied:  “Review rights explained; Review leaflet enclosed; Review period stated; Bridging visa validity explained”.  

   g)A Departmental postal log for registered post sent on 4 May 2004 has a date stamp impressed by Australia Post, which, as I find, confirms that postal item RP16172946 was an item addressed to Julia Choi at the correct suburb for her postal address, and that it was received by the Australia Post Mail Room at Parramatta on 4 May 2004. 

3. It is uncontested that the applicant’s application for review was lodged on 9 June 2004.  The application was accompanied by a statement by Miss Choi and a statutory declaration by her which said: 

   1.I did not receive any notification card regarding picking up the registered post sent from the Department of Immigration before 4th of June 2004. 

   2.On 4th of June 2004, I received an enveloped mail that contained notification slips to pick up registered mails.  The post office says that they were second notifications but I did not receive any first notification. 

   3.Due to late delivery of notification cards or delivery of first notification to wrong place.  I, as an authorised person who should communicate with department of Immigration on behalf of those applications: 

– Ms Hye Jong Kang (dob 11/02/1961)		– Mr Jae Sun Lee (dob 01/01/1968)
– Ms In Sook Kim (dob 21/01/1966)	– Mr Yong Kyoo Kim (dob 01/11/196x)
– Ms Koung Ae Lee (dob 26/12/1963)		– Ms Tong Pok Kim (dob 21/05/1961)
– Ms Myung Sook Song (dob 23/01/1964)			– Ms Inn Chae (dob 19/05/1959)

could not properly respond to the letters and notify those applicants to prepare either for leaving Australia or applying for a review to MRT. 

4.I wish to request Mr Raymond Chean the case officer to send the decision letters again to me with correcting the notification date.  

1. On 21 June 2004, the Tribunal wrote to the applicant and Miss Choi stating: 

   I am writing in relation to the application for a review of a migration decision which was received on 9 June 2004. 

   It appears that the application may have been lodged outside the relevant time limit.  The Department’s letter was dated 4 May 2004 , but the application for review was not received until the above date.  However, this is only a preliminary assessment, and a final decision cannot be made until all the relevant papers have been received from the Department of Immigration and Multicultural and Indigenous Affairs. 

   I have asked the Department for a copy of its documents and I would appreciate it if you could also forward any documents or written arguments you wish the Tribunal to consider, which you have not already given to the Tribunal or the Department. 

   In particular, you may wish to put forward your views as to whether the application for review was lodged in time.  The Tribunal has no power to extend or waive time limits but it is possible that an error may have been made in calculating the period, or that the Department did not properly notify the decision. 

   When the eligibility of the application for review has been considered further, we will contact you again.  Please quote the Tribunal file number provided above in all dealings with the Tribunal. 

2. There is no evidence of any response being made to this letter. 

3. On 27 July 2004, the Tribunal informed the applicant that her application “has been found to be ineligible” and enclosed its decision record which I have extracted above. 

The relevant legislation

1. Section 66(1) provides that “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. Other provisions in s.66 contain requirements as to the content of a notification. The only requirement relevant to the present case which was referred to by the applicant’s counsel is under s.66(2)(d) that it “state… (iv) where the application for review can be made”. 

3. The “prescribed way” of notification is found in reg.2.16(3), which provides that “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”. 

4. Section 494B(4) provides that one 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. 

5. Section 494C is headed, “When a person is taken to have received a document from the Minister”, and relevantly provides: 

   (1)This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A).

   …

   Dispatch by prepaid post or by other prepaid means

   (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. 

6. Section 347(1) requires that “an application for review of an MRT‑reviewable decision must … (b) be given to the Tribunal within the prescribed period … ”. 

7. In relation to the present type of decision, the period is prescribed by reg.4.10(1)(a), which describes a period which “starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received”. 

8. It is clear in the present case that no notification was ever sent under the above provisions addressed to the applicant at her residential address or postal address shown on the visa application form.  The Tribunal’s jurisdiction therefore depends upon whether the time for appeal ran under those provisions by reason of the letter sent to Miss Choi at her postal address. 

9. The respondent argues that authority to do this is found in s.494D, which I shall set out in full:

   (1)If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to do things on behalf of the first person that consist of, or include, receiving documents in connection with matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents that the Minister would otherwise have given to the first person. 

   Note:  If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method. 

   (2)If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person.  However, this does not prevent the Minister giving the first person a copy of the document. 

   (3)The first person may vary or withdraw the notice under subsection (1) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the first person’s authorised recipient. 

   (4)The Minister may communicate with the first person by means other than giving a document to the first person, provided the Minister gives the authorised recipient notice of the communication. 

The applicant’s contentions

1. The application to this Court did not identify any grounds showing that the Tribunal’s opinion that the appeal was out of time was incorrect or invalid.  An amended application filed on 27 January 2005 attempted to remedy this.  It made claims that: 

   i)the Tribunal failed to take relevant matters into account, being the factual matters raised by Miss Choi in her statutory declaration concerning her belated actual receipt of notice of the delegate’s decision; 

   ii)the Tribunal “failed to apply or interpret the deeming provisions of the Migration Regulations and Migration Act”, without indicating how the applicant alleged the legislation had been misapplied; and

   iii)“the Tribunal erred … in denying natural justice, or procedural fairness to the applicant” because it did not afford an opportunity for hearing to the applicant to explain her case.  

2. In relation to the first ground, in his oral submissions to me, counsel for the applicant conceded that the matters raised by Miss Choi were irrelevant to deciding whether the application was out of time, if the letter to her amounted to due notification of the applicant which the applicant was taken to have received on 13 May 2004. I consider that his concession was correctly made on current authorities. These have held that the time limit has mandatory effect, and that the deemed receipt provisions of the Act are exhaustive and conclusive of the issue, even if it can be proved that documents were never received (see, for example, Murphy v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 135 FCR 550 at [69‑72] and cases cited therein, and c.f. VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407 at [14‑16]). Since I have decided that the Tribunal correctly held that the time for appeal commenced upon the date of deemed receipt by Miss Choi, I do not need further to consider this ground nor the evidence upon which it relied.

3. In relation to the second ground, counsel’s written submissions which were filed and served the day before the hearing were obscure, but appeared to argue that the deemed notification provisions did not apply since notice had not been sent to the applicant at her own address in accordance with her instruction in Part J of the visa application form.  This contention was pressed at the hearing, and I shall deal with it below.  As I shall indicate, two other arguments were also raised as to why the notification sent to Miss Choi was ineffective. 

4. In relation to the third ground, counsel withdrew the allegation that there was procedural unfairness in the proceedings before the Tribunal. 

5. Counsel’s oral submissions were not confined to the grounds foreshadowed in the documents filed in Court, but made four arguments.  I understood them to be:

   i)Notification of the decision was not “given” to the applicant for the purposes of s.66(1) nor “received” by her for the purposes of reg.4.10(1)(a), since it had not been posted to her in accordance with her request in Part J of the visa application. Reliance could not be placed under s.494D on the giving of notice to the authorised recipient, since this would be inconsistent with that request. Alternatively, where there were inconsistent or unclear instructions in the visa application, notification to the authorised recipient could not validly be made without inquiries being made to the applicant to clarify her intentions.

   ii)The notification to Miss Choi did not comply with s.66(2)(d)(iv) because nowhere in the folios from the Department’s file which were claimed to be copies of what was posted to her was there a sufficient statement of “where the application for review can be made”. 

   iii)The prescribed time for appeal could not be calculated under reg.4.10(1)(a) to run from a deemed date of receipt of the notification to Miss Choi pursuant to s.494C(4), since it was impossible to identify the “date of the document” from which the 7 days referred to in that provision could be calculated. 

   iv)The Tribunal had failed to give adequate reasons for its decision that the application for review was “ineligible”. 

6. I shall address these arguments separately. 

The effect of Part J of the visa application

1. Neither counsel were able to refer me to authority which has addressed the effect of an applicant requesting that communications be sent to herself and also providing the name, address and consent of an authorised recipient, in circumstances where notification was sent to the authorised recipient but not to the applicant (the reverse scenario was addressed by Mansfield J in Makhu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 221).

2. Counsel for the applicant sought to gain support for his contentions from VEAN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 570 and other cases which have tended to require strict observance of the current notification and deemed receipt provisions of the Act. However, they all concerned different aspects of those provisions, and in my opinion do not provide a solution to the present situation. In my opinion, this can only be achieved by applying the statutory provisions according to their language and object under the usual principles of statutory construction.

3. In VEAN (supra) the Court held that a notification of decision was not duly given so as to be deemed to have been received by the visa applicant within the prescribed period after posting.  It had been sent to an applicant who had nominated his sister as his authorised recipient.  The letter was addressed to the applicant himself “c/o” the sister at her address, and was not addressed to the sister.  No notification had been sent to the applicant at his own residential or business address.  The Full Court held that notice had not been validly given, since the addressee of the letter was not the authorised recipient (supra at [42]).  They considered that this was “one of the two critical elements of the means of notification prescribed by ss 494B(1) and (4)(c) and 494D(1)”, and that this was a situation where compliance was mandatory under the principle discussed in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [91].

4. The VEAN situation does not arise in the present case, since it was conceded by counsel for the applicant that (subject to his alternative arguments which I shall deal with) the notification was “given to the authorised recipient, instead of the first person” in terms of s.494D(1) by sending the letter described above addressed to Miss Choi at her notified postal address.

5. Counsel for the applicant also accepted that s.494D(1) implicitly adopts the provisions of s.494B(4) as providing the posting “method” by which an authorised recipient is to be “given” documents instead of the applicant, where this is required under s.66. He also accepted that where a document is thus given, s.494D(2) should be read with s.494C(4)(a) so as to deem receipt by the applicant 7 working days after the date of the document sent to the authorised recipient. In short, he accepted that the notification and deemed receipt provisions of the Act and Regulations which I have set out above apply in relation to a decision notification given to an authorised recipient instead of the applicant. These concessions are consistent with assumptions made by the Court in VEAN (supra) at [45] and [46], and with the Note appearing in the Act under s.494D(1), and I accept them. I therefore do not need to explore how the words of these provisions may be construed so as to achieve this effect.

6. Once these matters are accepted, then prima facie the only way the applicant can avoid the effect of the time limitation arising from service of the notification on Miss Choi is to establish that her completion of Part K of her visa application in the manner described above was not, in fact, an authorisation falling within the language of s.494D(1). If it did so fall, then the delegate was at least authorised, and perhaps required, by s.494D(1) to give notice of the present decision to Miss Choi instead of the applicant herself. If there was such statutory authority, then I do not understand what legal principle would give relevance to a request or expectation by the applicant that she would receive notice herself – either additionally or instead of Miss Choi, even if this arose from the wording of the approved form.

7. The applicant’s present arguments cannot, therefore, succeed unless I conclude that Part K did not have the legal effect that its apparent language and completion appear to give it.  This requires me to construe her authorisation in the light of the remainder of the visa application and the surrounding circumstances so as to identify the relevant intentions of the visa applicant.  When I perform this task, I conclude that the applicant did intend to authorise Miss Choi “to receive all written communications about this application”. In my opinion, this was her apparent intention and is the literal and legal effect of how she has completed the form. She has led no evidence to contradict this interpretation of the form. Her authorisation therefore satisfies the language of s.494D(1), and was properly given effect in accordance with that section.

8. I am not persuaded to reach a contrary conclusion by reason of how the applicant completed Part J of the form.  It is true that the presence of the instruction of “tick one box only” and “go to Part O” causes some doubt whether the applicant appreciated that the author of the form invited an applicant to indicate whether she wanted communications to be sent either to herself or to her authorised recipient.  However, I consider that the present applicant has indicated that she would like them to be sent to both herself and to her authorised recipient.  I do not consider that by doing this, her authorisation under Part K is rendered devoid of legal effect.  I reject the contention to the contrary. 

9. I also reject the contention that, where the visa applicant has completed the form in the present manner, there was a duty on the Minister and her delegates to inquire further as to whether the applicant intended the authority given in Part K to take effect. Counsel for the applicant referred me to no provision of the Act or legal principle or authority which would require this. I do not consider that it should be found from any implied right of procedural fairness, in circumstances where – as I have held – the application as completed by the applicant revealed an intent to provide an authority which satisfied the provisions of s.494D(1).

10. Accordingly, I reject the applicant’s arguments concerning the effect of her request in Part J that communications should be sent to her own address.  In my opinion, the failure of the delegate to give effect to that request did not render ineffective his notification to Miss Choi, assuming that it was duly sent to her. 

11. This leads me to the applicant’s second and third arguments.  

Notification of address for review

1. Counsel for the applicant argued that the delegate’s notification failed to “state” with specificity an address where an application for review could be lodged, and that this omission rendered the notification ineffective for the purposes of the deemed receipt provisions.  He relied upon the opinion of Allsop J in Zhan v Minister for Immigration& Multicultural & Indigenous Affairs (2003) 128 FCR 469 at [64-66] in this respect, and counsel for the Minister accepted that this opinion should be followed in this Court.

2. The difficulty facing the argument is that, on the evidence recorded on the folios of the Department’s file which I have described above, I consider that it is more probable than not that the documents sent to Miss Choi included the “leaflet” referred to at folio 12, and that the leaflet sufficiently included “addresses where the application can be lodged”.  I am certainly not persuaded, as was submitted by counsel for the applicant, that the absence of evidence of the content of the leaflet and that a copy of the leaflet was kept on the applicant’s file should cause me to infer that it was not sent with the notification. 

   
   

   I cannot draw this inference from the contents of the Court Book or the absence of evidence from the respondent in reply, in circumstances where the applicant first raised this contention on the day of the hearing, and long after the solicitors for the Minister had compiled the documents which they thought were relevant to the issues raised by the applicant in her application. 

3. Upon being presented with this difficulty, counsel for the applicant sought an adjournment so that he could lead evidence from Miss Choi – whom he said was not in Australia – to establish that she had not received the leaflet.  I rejected this application.  The proceeding had been commenced in August 2004, and was set down for final hearing today at a directions hearing held by me in September 2004.  The applicant could have been under no misapprehension that I expected the matter to be ready to proceed today.  I considered that she had had ample time to allow her legal representatives to identify this issue and to prepare any evidentiary basis for it.  No reason for the late raising of the issue, including its absence from the amended application and from counsel’s written submissions, was given to me. 

The “date” of the notification

1. Counsel for the applicant sought to persuade me that the references to 4 May 2004 appearing in the letter to Miss Choi and the other documents in the manner which I have described above did not provide the “date of the document” for the purposes of calculating a deemed receipt date under s.494C(4)(a) and, consequently, the commencement of a “prescribed period” for appeal under reg.4.10(1)(a).  I consider that this submission manifestly has no substance, and I reject it. 

The absence of adequate reasons

1. There are several reasons why this argument fails to provide grounds for the relief sought in the amended application. First, I do not consider that the Tribunal was under any statutory or other obligation to provide a full statement of its reasons for concluding that the application for review was ineligible. Under the Act, the Tribunal is bound by s.368(1) only to give reasons when it “makes its decision on a review”, and s.348(1) suggests that the Tribunal does not embark on a review until after it has made a preliminary jurisdictional decision whether “an application is properly made under section 347”. The issue of whether the application is made within a prescribed period therefore, in my opinion, falls outside the Tribunal’s statutory duty. No authorities were cited to me establishing a duty arising outside s.368, and my understanding of the authorities is that there is no general duty in common law (c.f. Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 670, 676), and for a duty to be implied into a statutory scheme it is necessary to identify some statutory objective which requires that implication (c.f. Attorney‑General of New South Wales v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729, and Edwards v Giudice (1999) 94 FCR 561 at 573, 575). I doubt whether this can be found in the present Act in the present situation, particularly if I am correct in thinking that the Tribunal’s jurisdiction is a matter which can be directly considered and decided by a Court under s.39B of the Judiciary Act.

2. Secondly, I consider that in the present case the Tribunal has revealed its reasons for declining jurisdiction.  In my opinion, its reasons are found in its statements:  “you are taken to have been notified of the Department’s decision 13 May 2004.  The last date for lodgement of the application for review was 3 June 2004”.  This can only be understood as indicating that the Tribunal has applied the statutory provisions which I have set out above, to the uncontested facts which I have set out above, so as to arrive at the conclusion which I have arrived at.  It may have been better if the Tribunal could have spelled this out, but I consider that it is possible to discern its reason for deciding that the review application was not lodged within time.  

3. Thirdly, even if the Tribunal failed to observe a duty to show its reasoning, this would not entitle the applicant to an order setting aside its decision on jurisdiction nor ordering it to assume jurisdiction.  The absence of reasoning would not necessarily establish an error vitiating its decision in relation to its jurisdiction (c.f. Brennan J in Repatriation Commission v O’Brien (1985) 155 CLR 422 at 445‑6, and Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [69], [75]). This contention by the applicant therefore raises a point immaterial to the relief sought by the applicant.

Conclusion

1. I have found that the applicant’s authorisation of Miss Choi was legally effective for the purposes of s.494D, and that the delegate was obliged or permitted to give notification of his decision to her instead of the applicant. I have rejected the two arguments presented by the applicant seeking to establish that a requirement of the notification provisions was not met, so that time did not run in accordance with the deemed service provisions of the Act. I accordingly accept the submission of the Minister that the application made to the Tribunal on 9 June 2004 was not within the prescribed period, and that the Tribunal was not entitled to proceed with a review of the delegate’s decision. The Tribunal made no error by reaching this conclusion.

2. I must accordingly dismiss the application. 

3. In relation to costs, this application was listed simultaneously with five other cases in which the parties had the same representatives and the issues and submissions were identical.  The similarity was identified from the early stages of all proceedings, and the applicant’s representatives sensibly selected this case as the “test case” whose outcome would decide the outcome in all cases.  I am delivering short judgments in all of those cases simultaneously with this case, in which I adopt and apply my reasoning in this case.  In these circumstances, and as the parties have submitted to me, it is appropriate that I should award costs in an identical amount in each case and that I should discount the costs awarded to take into account efficiencies arising from the concurrent preparation and hearing of all matters.  I propose to award the Minister costs in the amount of $1,500 in each case.  By doing so, I should not be taken as suggesting that the legal representatives on either side should adopt a similar equality when billing their respective clients on a solicitor‑client basis.  Their approach in relation to that is a matter for them to arrive at in accordance with their instructions and their fees agreements with their clients. 

I certify that the preceding forty‑nine (49) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  16 June 2005