Vean v Minister for Immigration and Multicultural and Indigenous Affairs - [2003] FCA 280

FEDERAL COURT OF AUSTRALIA
VEAN v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 280
MIGRATION – Whether application for review of delegate’s decision lodged with Refugee Review Tribunal within prescribed period – application to be lodged within 28 days of notification of decision – applicant appointed authorised recipient to receive communications from respondent – delegate sent letter and attached decision to applicant care of authorised recipient – whether decision “give[n] to authorised recipient, instead of the [applicant]” – Form authorising communications to be sent to authorised recipient provides for consent to receive communications by e-mail – consent signed – whether respondent thereby precluded from using registered mail or other methods of communication pursuant to s 424B of the Migration Act 1958 (Cth)
Migration Act 1958 (Cth), ss 66, 412(1)(b), 494B, 494C, 494D
Migration Regulations 2.16(2), (3)
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-9 referred to
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 207–211 referred to
APPLICANT VEAN OF 2002, APPLICANT VEAO OF 2002, APPLICANT VEAP OF 2002 and APPLICANT VEAQ OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
V414 of 2002
WEINBERG J
3 APRIL 2003
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V414 OF 2002

BETWEEN:

APPLICANT VEAN OF 2002
FIRST APPLICANT

APPLICANT VEAO OF 2002
SECOND APPLICANT

APPLICANT VEAP OF 2002
THIRD APPLICANT

APPLICANT VEAQ OF 2002
FOURTH APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

WEINBERG J

DATE OF ORDER:

3 APRIL 2003

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicants pay the respondent’s costs of and incidental to this proceeding.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V414 OF 2002

BETWEEN:

APPLICANT VEAN OF 2002
FIRST APPLICANT

APPLICANT VEAO OF 2002
SECOND APPLICANT

APPLICANT VEAP OF 2002
THIRD APPLICANT

APPLICANT VEAQ OF 2002
FOURTH APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

WEINBERG J

DATE:

3 APRIL 2003

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

This is an application seeking review of a decision made by the Refugee Review Tribunal (“the Tribunal”) on 30 May 2002. By that decision, the Tribunal found that it did not have jurisdiction to review the decision of a delegate of the respondent refusing to grant the first applicant (hereafter “the applicant”), and the included members of his family, a protection visa.
The Tribunal’s decision was based upon a finding that the application for review had not been lodged within the period prescribed by s 412(1)(b) of the Migration Act 1958 (Cth) (“the Act”), namely 28 days after the notification of the delegate’s decision.
Factual Background
On 23 July 2001, the applicant applied to the then Department of Immigration and Multicultural Affairs (“the Department”) for a protection visa under the Act. The second, third and fourth applicants (“the included applicants”) are, respectively, his wife and children. They applied for protection visas as members of the same family unit of the applicant and did not forward any separate claims for refugee status.
On 17 August 2001, the applicants completed a “Form B”. The included applicants nominated the applicant to receive communications from the Department on their behalf. That form stated that:
“[the first applicant] should be the person you wish the Department to contact about this application (although you may have also used a migration agent or another form of assistance, see questions 15 and 17)”.
There had been an earlier version of “Form B” completed in July 2001, but that is of no significance to this proceeding.
On 17 August 2001, the same day that the second “Form B” was completed, the applicant also completed a “Form 956”. That form was entitled “Authorisation of person to act and receive communication”. It provided the following authorisation:
“ [I, the applicant of xxxx address] authorise the following person to act on my behalf in relation to my application/sponsorship in dealings with the Department of Immigration and Multicultural Affairs (DIMA). This includes authorising DIMA to send that person any communication, documents or notifications relating to my application/sponsorship that would otherwise have been sent to me.”
By completing the form, the applicant authorised his sister, Ms B D of a particular address in Cranbourne, Victoria, to act on his behalf in the terms provided above. Ms B D also signed the form. She also completed a separate section which was headed “Consent by authorised person”. That section of the form asked the following question:
“As the authorised person named on this form, do you agree to DIMA communicating with you by facsimile, e-mail, or other electronic means?”
Ms B D ticked the box marked “yes” in answer to that question, and provided an email address for any such communication. As will become clear later in this judgment, counsel for the applicants placed considerable significance on this aspect of the form.
On 9 November 2001, despite the instruction contained in the “Form 956”, the Department wrote to the applicant at an old address, at which he no longer resided. Nonetheless, he replied by letter dated 12 December 2001. There is no evidence that the Department also wrote to Ms B D, his authorised recipient.
On 3 January 2002, a delegate of the respondent rejected the application for a protection visa. Notification of that rejection was communicated by registered post on the same date. The letter was addressed to the applicant, care of Ms B D, at her address in Cranbourne.
On 3 February 2002, the applicant was told by his sister that a letter sent to him, care of his sister, was awaiting collection. He arranged for that letter to be collected on 6 February 2002. It should be noted that, as at that date, he could still have lodged with the Tribunal an application for review of the delegate’s decision. The period prescribed under s 412 did not expire until, at the earliest, 11 February 2002. However, the applicant believed that time ran from the date on which he physically received the letter, and that he had 28 days from 6 February 2002 within which to lodge his application. It was not until 26 February 2002 that the application was lodged.
The Tribunal formed the preliminary view that it had no jurisdiction to entertain the application because it was received outside the prescribed time limit. On 20 March 2002, the Tribunal wrote to the applicant inviting him to file submissions on this issue. His representatives did so on 12 April 2002.
On 30 May 2002 the Tribunal found that it did not have jurisdiction in relation to the application for review.
Legislative Context
Section 412(1) of the Act relevantly provides that an application for review of an “RRT – reviewable decision” must:
“(a) be made in an approved form; and
(b) be given to the Tribunal within the period prescribed, being a period ending not later that 28 days after the notification of the decision; and
(c) be accompanied by the prescribed fee (if any).”
The Act makes no provision for any extension to the period prescribed. That was common ground between the parties. Accordingly, if the application for review was not lodged with the Tribunal within 28 days of the applicant being notified of the delegate’s decision, the Tribunal had no jurisdiction to hear the application.
Section 66(1) of the Act provides that when the Minister grants or refuses to grant a visa, he is to “notify” the applicant of the decision “in the prescribed way”.
Regulation 2.16(2) of the Migration Regulations provides that the Minister must notify the applicant of the grant of the visa by the use of one of a number of designated methods. Those methods include telling the applicant orally that the visa has been granted. They also include notifying the applicant by one of the methods specified in s 494B of the Act.
Regulation 2.16(3) provides that the Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods in s 494B. Oral notification is not regarded as adequate.
Section 494B sets out the methods by which the Minister “gives” documents to a person. That section relevantly provides:
“…
(1)For the purposes of provisions of this Act or the regulations that:
(a)require or permit the Minister to give a document to a person (the recipient ); and
(b)state that the Minister must do so by one of the methods specified in this section;
the methods are as follows.
Giving by hand
(2)One method consists of the Minister (including by way of an authorised officer) handing the document to the recipient.
Handing to a person at last residential or business address
(3)Another method consists of the Minister (including by way of an authorised officer) handing the document to another person who:
(a)is at the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; and
(b) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(c) appears to be at least 16 years of age.
Dispatch by prepaid post or by other prepaid means
(4)Another 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.
Transmission by fax, e-mail or other electronic means
(5) Another method consists of the Minister transmitting the document by:
(a)fax; or
(b)e-mail; or
(c)other electronic means;
to the last fax number, e-mail address or other electronic address, as the case may be, provided to the Minister by the recipient for the purposes of receiving documents.
…”
Section 494C sets out the circumstances under which a person is taken to have received a document from the Minister. Section 494C(4) provides:
“(4)If the Minister gives a document to a person by the method in s 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.”
Finally, s 494D provides that, in certain circumstances, communications may be directed to authorised recipients instead of applicants. That section provides:
“(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.”
Did the Tribunal err in holding that it had no jurisdiction?
The Tribunal concluded that the notice of the delegate’s decision was dated 3 January 2002. It was satisfied that its contents complied with the statutory requirements.
It found that the Department’s file records indicated that the applicant had given the Minister written notice of the name and address of an authorised recipient under s 494D. It also found that the decision notice was sent by certified mail to the authorised recipient on 3 January 2002. It concluded that this method of notification complied with the requirements of s 494B(4). It therefore applied s 494C(4) and found that the applicant was taken to have “received the notice on 15 January 2002”, that being 7 working days after the notice was sent.
The Tribunal therefore determined that the 28 day period within which the application for review had to be lodged had ended on 11 February 2002. As the application was not received by the Tribunal until 26 February 2002, it found that it had no jurisdiction.
Mr Fernandez, counsel for the applicants, submitted that the Tribunal had erred in two narrow, but distinct, ways in arriving at that conclusion.
First, it was submitted that the respondent had not complied with the requirements of s 494D(1) regarding authorised recipients. It was contended that when the delegate purported to notify the applicants that their claims had been rejected, he erred by addressing the letter attaching the relevant decision to the first applicant (albeit care of his sister), and not to the authorised recipient. It was submitted that the relevant sub-section required the Minister to “give the authorised recipient, instead of the first [applicant] …, any documents that the Minister would otherwise have given to the first [applicant] …” (emphasis added).
It was submitted that the requirements of s 494D(1) were mandatory, and that any failure to comply strictly with those requirements invalidated the purported notification: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-9. Accordingly, the respondent was not entitled to rely upon s 494C(4), and the time within which to lodge the application for review did not expire until 28 days after the applicant had physically taken possession of the notice, which occurred on 6 February 2002.
Ms Moore, counsel for the respondent, submitted that the requirement in s 494D(1) that the Minister “give the authorised recipient instead of the first person” any documents that he would otherwise have given to the first person did not preclude the sending of those documents, by prepaid post, to the applicant care of his authorised recipient. It was submitted that the authorised recipient had relevantly been given notification of the delegate’s decision.
Ms Moore noted that the address for delivery of the letter and the attached decision was that of the authorised recipient. The letter was directed, by name, to the applicant, but care of the authorised recipient. That constituted giving the authorised recipient, instead of the applicant, the document in question.
Ms Moore did not say so in terms, but by implication submitted that even if there had been a failure strictly to comply with the requirements of s 494D(1), that failure did not result in the invalidity of the notification process. That argument was supported by a concession made by Mr Fernandez that, had the letter been sent not to the applicant care of his authorised recipient at her address in Cranbourne, but to her personally, though marked for the applicant’s attention, the notification would have been valid. It was submitted that the distinction sought to be drawn between these two situations was one of form, and not of substance. Nothing in Project Blue Sky suggested that the legislature intended to invalidate a notification on that basis.
In my opinion, Ms Moore’s submissions regarding this issue should be accepted. I can see no reason why the expression “give the authorised recipient, instead of the first person” should be construed so narrowly that a letter sent to the applicant, care of his authorised recipient at her address, does not constitute a “giving” of that letter to the authorised recipient. The word “give” is plainly a word of wide amplitude. It is not to be equated with physically handing over an object. Indeed, s 494B expressly distinguishes between giving by hand, and giving through dispatch by prepaid post. The word give in s 494D(1) must surely have a similarly broad meaning.
The Concise Oxford Dictionary defines “give”, inter alia, as “making another the recipient of something in the subject’s possession”. To cause something to be put in the possession of another is, relevantly, to give the object to that other. That is precisely what the delegate did with regard to the authorised recipient in this case.
If I am wrong, as a matter of construction, I would still say, conformably with Project Blue Sky, that a failure to name the authorised recipient as the person to whom the letter is addressed, rather than the applicant, care of that authorised recipient, does not of itself invalidate the notification process. The likelihood of the applicant being informed of the arrival of the letter is no different in either case. Considerations of substance, rather than form, should prevail.
The second submission put by Mr Fernandez was essentially that the respondent’s delegate had used the wrong method of communication when he sought to notify the applicants of his rejection of their claim. It was submitted that the delegate should first have endeavoured to e-mail the authorised recipient. Only if that attempt were unsuccessful would he have been entitled to use another method of notification, such as registered mail.
The basis for that submission was not satisfactorily explained. The Act clearly leaves open to the Minister, or his delegate, whichever of the methods provided for in s 494B that he regards as appropriate to notify the applicants. The choice is entirely a matter for him.
The suggestion, by Mr Fernandez, appeared to be that the express provision of notification via facsimile, e-mail or other electronic means in the “Form 956” was misleading in that it suggested that this was the method by which an authorised recipient would receive all communications. Why else would the authorised recipient be required to consent to receiving such communications in that form? By signing the requisite consent, the authorised recipient had entered into an “agreement” with the respondent that the only method of communication that would be adopted, at least in the first instance, was that which was subject of the consent.
In response to this submission, Ms Moore submitted that the Act left the question of the method of communication entirely in the hands of the Minister, as long as the method chosen was one of those listed in s 494B. The suggestion by Mr Fernandez that the language used in the form could fetter the power of the Minister was without foundation.
In my view there is no substance in this second submission. There is nothing in Form 956 which constitutes an “agreement” on the part of the respondent that all communications made with the authorised recipient will, at least in the first instance, be made by “facsimile, e- mail, or other electronic means”.

There are several obstacles standing in the way of this submission. The first is that Form 956, upon its proper construction, does not give rise to any such agreement. There is nothing in the form which suggests that the respondent is prepared to forego any of the other methods available to him in s 494B merely because the authorised recipient consents to receiving communications by e-mail. The second is that even if an agreement of that type could be implied, there would be no consequences of any legal relevance to this proceeding flowing from it. That is because, as a general rule, representations, undertakings or promises by public officials do not alter the extent of an official’s public power, nor affect the normal legal consequence attendant upon its excess: see generally M Aronson and B Dyer, Judicial Review of Administrative Action (2^nd edition, 2000) at 118–124 and Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 207–211 per Gummow J. The third is that any disconformity between the language of Form 956 and that of s 494B, must be obviously resolved in favour of the statutory provision, and not the form. The statutory provision is not to be read down by the terms in which the form happens to be expressed.
It follows, for the reasons set out above, that the application must be dismissed. The applicants must pay the respondent’s costs.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.
Associate:
Dated: 3 April 2003

Counsel for the Applicant: Mr T A Fernandez

Solicitor for the Applicant: Mr R Samarakoom

Counsel for the Respondent: Ms S E Moore

Solicitor for the Respondent: Clayton Utz

Date of Hearing: 17 March 2003

Date of Judgment: 3 April 2003

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V414 OF 2002

BETWEEN:	APPLICANT VEAN OF 2002 FIRST APPLICANT APPLICANT VEAO OF 2002 SECOND APPLICANT APPLICANT VEAP OF 2002 THIRD APPLICANT APPLICANT VEAQ OF 2002 FOURTH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WEINBERG J
DATE OF ORDER:	3 APRIL 2003
WHERE MADE:	MELBOURNE

JUDGE:	WEINBERG J
DATE:	3 APRIL 2003
PLACE:	MELBOURNE

Counsel for the Applicant:	Mr T A Fernandez
Solicitor for the Applicant:	Mr R Samarakoom
Counsel for the Respondent:	Ms S E Moore
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	17 March 2003
Date of Judgment:	3 April 2003