The Commonwealth of Australia v Endresz

The Commonwealth of Australia (the appellant) appealed to the Federal Court of Australia against a decision of the Administrative Appeals Tribunal (the Tribunal) concerning the validity of a notice issued under section 169 of the *Migration Act 1958* (Cth) (the Act). The respondent, Mr Endresz, had been granted a Protection Visa. The dispute centred on whether the notice, which purported to cancel Mr Endresz's visa, was validly served.

The primary legal issue before the Federal Court was whether the Tribunal had erred in law by finding that the notice of intention to cancel Mr Endresz's visa was not served in accordance with section 169(2) of the Act. This required the Court to consider the proper interpretation of the service provisions within the *Migration Act* and the *Acts Interpretation Act 1901* (Cth), particularly in circumstances where the respondent was not personally present at the address nominated for service.

The Federal Court, in allowing the appeal, reasoned that the Tribunal had misconstrued the relevant service provisions. The Court held that section 169(2) of the *Migration Act* requires service by post to the last known address of the person. The Court further found that the *Acts Interpretation Act* provides that service by post is deemed to be effected at the time when the letter would be delivered in the ordinary course of post, unless the contrary is proved. The Tribunal had incorrectly placed the onus on the Commonwealth to prove actual receipt of the notice, rather than requiring Mr Endresz to prove non-delivery.

The Federal Court set aside the decision of the Tribunal and remitted the matter to the Tribunal to be heard and determined according to law.