Wilson and Minister for Immigration and Citizenship
[2011] AATA 325
•17 May 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 325
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/1441
GENERAL ADMINISTRATIVE DIVISION ) Re Thomas WILSON Applicant
And
Minister for Immigration and Citizenship
Respondent
DECISION
Tribunal Mr R P Handley, Deputy President Date17 May 2011
PlaceSydney
Decision The Tribunal has no jurisdiction to hear and determine Mr Wilson’s application.
..................[sgd]........................
Mr R P Handley
Deputy President
CATCHWORDS
IMMIGRATION – visa cancellation - character grounds – notification – delay - jurisdiction to review decision – nine-day time limit - applicant notified in the prescribed manner – no jurisdiction to hear and determine application for review
RELEVANT LEGISLATION
Migration Act 1958 (Cth) ss 494C, 494D, 501, 501G
Migration Regulations 1994 (Cth) reg 2.55
CITATIONS
Re Tran and Minister for Immigration and Citizenship [2011] AATA 21
Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 77; (2000) 60 ALD 667; (2000) 171 ALR 53; [2000] FCA 377
Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172
Tay v Minister for Immigration and Citizenship (2010) 183 FCR 163; [2010] FCAFC 23REASONS FOR DECISION
17 May 2011 Mr R P Handley, Deputy President 1. Mr Wilson has applied to the Tribunal for the review of a decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to cancel his visa on the ground that he does not pass the character test because of his substantial criminal record.
2. This statement of reasons is about the preliminary issue of whether the Tribunal has jurisdiction to hear and determine the application for review.
BACKGROUND
3. Mr Wilson was born in New Zealand in 1963 and is a New Zealand citizen. He first arrived in Australia on 29 March 1987, aged 23. He has been overseas since on four occasions, re-entering most recently on 4 October 1991. He is the holder of a Class TY Subclass 444 Special Category (Temporary) visa which entitles him to remain in Australia indefinitely.
4. On 3 July 1996, Mr Wilson was sentenced to 18 years and six months imprisonment with a non-parole period of 14 years for the offence of ‘Maliciously Inflict Grievous Bodily Harm’, a sentence confirmed on appeal on 18 December 1997. He is expected to be released from prison on 7 July 2011.
5. By letter dated 11 March 2011, the Department of Immigration and Citizenship (the Department) sought to notify Mr Wilson that his visa had been cancelled. This letter was addressed to Mr Wilson’s authorised representative, Ray Turner, of Turner Coulson Immigration Lawyers. According to an affidavit from Stewart Coulson of Turner Coulson Immigration Lawyers dated 18 April 2011, at approximately 10.00 am on Thursday 14 April 2011, his colleague Tanya Drake received a telephone call from ‘Jessica’ of Matouk Lawyers of Level 2, 150-152 Elizabeth Street, Sydney saying that they had a package at their office addressed to Mr Turner. Mr Coulson said that he went immediately to Matouk Lawyers’ office and asked for Jessica and the package. He was given a package and when he asked “Who signed for this?”, he was told “I don’t know”. Mr Coulson took the package back to his office and, when he opened it, found that it contained a Notice of Visa Cancellation addressed to Mr Wilson.
6. On Friday 15 April 2011, Mr Turner, as Mr Wilson’s representative, signed an application to the Tribunal for the review of the decision to cancel Mr Wilson’s visa. This was received by the Tribunal on Monday 18 April 2011.
7. The Minister contends that the Tribunal does not have jurisdiction to entertain Mr Wilson’s application because the application was made out of time.
Relevant Law and Policy
8. Section 501(2) of the Migration Act 1958 (the Act) provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test” and “the person does not satisfy the Minister that the person passes the character test”. Section 501(6) provides that a person does not pass the character test if the person has a substantial criminal record. ‘Substantial criminal record’ is defined in s 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more.
9. Section 501G(1) requires the Minister to give written notice of a decision to cancel a visa setting out the decision, reasons for the decision and the person’s right to have the decision reviewed by the Tribunal. Section 501G(2) requires that the notice must be accompanied by two copies of every relevant document in the delegate’s possession or under the delegate’s control. Such a notice “must be given in the prescribed manner” (s 501G(3)). The prescribed manner is set out in the Migration Regulations 1958 (the Regulations). Subregulation 2.55(4)(b) provides relevantly that where a person has held a visa for at least one year when the document is given, the Department “must try to find the person” and “the Minister must give the document in one of the ways mentioned in subregulation (3)”. Subregulation (3) specifies the ways in which the Minister must give the document:
(a) by handing it to the person personally,
(b) by handing it to another person who:
(i) is at the person’s last residential or business address known to the Minister; and
(ii) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(iii) appears to be at least 16 years of age;
(c) by dating it, and then dispatching it:
(i)within 3 working days (in place of dispatch) of the date of the document; and
(ii) by prepaid post or other prepaid means;
to the person’s last residential address, business address or post box address known to the Minister;
(d) by transmitting the document by:
(i) fax; or
(ii) e-mail; or
(ii) other electronic means;
to the last fax number, e-mail address or other electronic address known to the Minister.
10. In the case of a document given to a person pursuant to subregulation (3)(c), subregulation 2.55(7) states:
(7)If the Minister gives a document to a person by dispatching it 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.
11. Subregulation 2.55(9) states:
(9) If:
(a)the Minister purports to give a document to a person by a method specified in this regulation but makes an error in doing so; and
(b)the person nonetheless receives the document or a copy of the document;
the Minister is taken to have given the document to the person and the person is taken to have received the document:
(c) at the time specified by this regulation for that method; or
(d)if the person can show that he or she received the document at a later time - at that later time.
12. Section 500(1) provides for applications to be made to the Tribunal for the review of decisions such as a decision to cancel a visa made under s 501. Relevantly, s 500(6B) states:
(6B)If a decision under section 501 of this Act relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1). Accordingly, paragraph 29(1)(d) and subsections 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 do not apply to the application.
13. Subsections 29(7) to (10) of the Administrative Appeals Tribunal Act 1975 provide for the Tribunal to extend the time for lodging applications for review. However, section 500(6B) of the Act precludes these subsections from applying in the case of relevant decisions under s 501, with the result that the Tribunal has no power to grant an extension of time for the lodging of such an application.
14. Section 494D of the Act provides for the appointment of an authorised recipient for a person:
(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: ...
(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)…
(5)…
The Applicant’s Submissions
15. Mr Turner, for Mr Wilson, submitted that it is the person whose visa has been cancelled who must be given the notice, otherwise there would be no point to subregulation 2.55(4)(b)(i) requiring that the Department “must try to find the person”. He noted that subregulation 2.55(9) addresses departmental errors in the giving of a document and provides that where there is such an error, the person is taken to have received the document at a later time if he or she can show that it was received at a later time.
16. Mr Turner submitted that the word ‘dispatch’ means ‘sent to’, in accordance with the definition in the Concise Oxford Dictionary. Here the notice was sent to the wrong address because it was received at the wrong address. The presumption that the notice was sent to the address on the letter is rebutted by evidence that it was dispatched to an unrelated person.
17. Mr Turner said regulation 2.55 makes no provision for the notice to be given to an authorised representative but, if this were the case, the notice must be sent to the address specified in the notice of authorisation given to the Minister. Here the address given in the notice of authorisation (Form 956), dated 4 March 2010, for Turner Coulson Immigration Lawyers was 362/368 Sussex St, Sydney and not the address stated on the notice of cancellation (251-252 Elizabeth Street, Sydney). The address given in the notice of authorisation had not been varied as permitted by s 494D(3).
18. Mr Turner submitted that where there are doubts as to the meaning of relevant legislative provisions and statutory rights of sufficient significance to the individual are at stake, the courts should favour an interpretation that safeguards the individual: ReTran and Minister for Immigration and Citizenship [2011] AATA 21, at [43].
19. Mr Turner said the consequences for Mr Wilson of the cancellation of his visa are dire and the Minister’s contention would have the effect that his right of review would be lost through no fault of Mr Wilson’s. Mr Wilson has a spouse, two children and a business in Australia and strong arguments can be made for the exercise of the discretion in s 501(2) of the Act. Mr Turner said if the Minister chooses outside contractors to serve cancellation notices, the Minister must accept responsibility for the outcome.
20. Mr Turner noted that the three Federal Court decisions relied on by the Minister, referred to below, all concern applications for visas and not, as in this case, the cancellation of a visa which has very different consequences for the person.
The Respondent’s Submissions
21. Mr Markus, for the Minister, submitted that even though the notice of cancellation was not delivered to the correct address stated on the package, this does not mean the Minister bears any responsibility for this, which he denies. The ‘giving’ of the document occurred at the time of its dispatch. This was achieved by sending it to the last address known to the Minister (subregulation 2.55(3)(c)). The deeming provisions in subregulation 2.55(7) operate to deem receipt whether or not the notice has actually been received. Subregulation 2.55(9) deals with circumstances where there is a failure to comply with legislative requirements. This is not a unique provision: s 494C(7) is similar.
22. Mr Markus noted that s 494D(1) of the Act requires that if a person gives the Minister written notice of an authorised person receiving documents in connection with such matters, 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”. He said that the requirements of subregulation 2.55 must be read subject to the provisions of the Act. Thus, reference to notice being given to a person must be read as including an authorised representative. In this instance, Mr Wilson’s authorised representative was Mr Turner and the notice was dispatched to his last known business address, namely that stated on Mr Turner’s letter to the Department concerning Mr Wilson dated 2 March 2011, being 251-253 Elizabeth Street, Sydney.
23. Mr Markus referred to the decision of the Full Federal Court in Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 77; [2000] FCA 377 (Singh) where it was not in issue that registered post is a form of prepaid post. The Court said the purpose of the then relevant regulations was to provide administrative certainty including “as to the expiry date for any application to review such decisions”, and “that objective should override the injustice” that may affect a particular visa applicant who, through no fault of their own, has not received the notice (at 86). This decision was followed by the Full Federal Court in Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 (Xie), and Tay v Minister for Immigration and Citizenship and Another (2010) 183 FCR 163; [2010] FCAFC 23 (Tay). In the latter decision, the Court said although these deemed notification provisions may produce harsh results, this is a consequence of considered legislative intention.
24. Mr Markus said the fact that the document was not received by Mr Wilson within the relevant time frame does not undermine the authority of the Full Federal Court decisions.
Discussion
25. The issue in these preliminary proceedings is whether the Tribunal has jurisdiction to hear and determine Mr Wilson’s application for review. This turns upon whether his application was lodged within nine days of notification in accordance with s 500(6B) of the Act. There is no dispute that the notification of the cancellation decision was delivered to the wrong address and that Mr Turner, Mr Wilson’s authorised representative, did not actually receive the notice until 14 April 2011.
26. The notification was dated 11 March 2011 and bears a registered post number listed on an Australia Post schedule for their Lonsdale Street, Melbourne, facility of 15 March 2011 (a Tuesday and, therefore, dispatched within three ‘working’ days: subregulation 2.55(3)(c)(i)). An Australia Post tracking summary records that the package was accepted at the Sydney parcel facility on 16 March 2011 and delivered to “J Fahmy” via the Alexandria PDC (Postal Delivery Centre) on 17 March 2011. The Minister contends that subregulation 2.55(7)(a) applies so that the package is deemed to have been received seven working days after the date of the document, that is on 22 March 2011. Thus, the Minister submits, the nine days for an application for review to be lodged (pursuant to s 500(6B)), expired on 31 March 2011 and, therefore, Mr Wilson’s application for review, lodged on 18 April 2011, was out of time.
27. While Mr Turner submitted that it is the person whose visa has been cancelled who must be given the notice of cancellation, in my view it is clear that s 494D allows for such documents to be given to an authorised recipient. Section 494D applies in respect of “receiving documents in connection with matters arising under this Act or the regulations” (s 494(1)). Thus, Mr Wilson having given the Minister a written notice of the appointment of Mr Turner as his authorised representative dated 4 March 2010, the Minister was required to give the notice of cancellation to Mr Turner.
28. Subregulation 2.55(3)(c) requires that such a document must be dispatched to the person’s “last residential address, business address or post office box known to the Minister”. In the case of Mr Turner, while the notice of his appointment as Mr Wilson’s authorised recipient gives Mr Turner’s address as 362/368 Sussex Street, Sydney, Mr Turner’s letter to the Department dated 2 March 2011 gave his address as 251-253 Elizabeth Street, Sydney, and it was to this address that the notice of cancellation addressed to Mr Wilson was dispatched under cover of a letter to Mr Turner as Mr Wilson’s authorised representative. In my view, it was not necessary for Mr Wilson to have sent the Department a formal variation of the notice of appointment of Mr Turner as his authorised representative (pursuant to s 494D(3)) notifying the Department of Mr Turner’s change of business of address. It was clear enough what Mr Turner’s last business address was from the letterhead on his letter to the Department dated 2 March 2011.
29. With regard to Mr Turner’s submission as to the meaning of the word “dispatching” in subregulation 2.55(3)(c), I note the Concise Oxford English Dictionary definition to which he referred, states as the first part of the meaning of the word ‘dispatch’ to “send off to a destination”. Similarly, the first meaning of the word ‘dispatch’ in the Macquarie Concise Dictionary is “to send off; put under way”. Thus, in my view, the ordinary meaning of the word ‘dispatching’ in the context of subregulation 2.55(3)(c) is ‘sending’ as distinct from ‘receiving’. The sending here was by registered post, which, as the Full Federal Court recognised in Singh at [33], is a form of prepaid post, and the document was sent to Mr Wilson’s authorised representative’s last business address known to the Minister.
30. The Full Federal Court has made it clear in Singh, Xie and Tay, that the objective of the legislature in providing “a scheme to achieve administrative certainty in the manner and time of giving notice of decisions made with respect to visa applications, and as to the expiry date for any application to review such decisions … should override the injustice which may occur because a particular visa applicant, sometimes without fault on the person’s part, does not in fact receive that notice in a timely way” (Singh, at 86).
31. Mr Turner submitted that Mr Wilson’s case should be distinguished from the decisions in Singh, Xie and Tay on its facts because the relevant decision in his case is the cancellation of his visa and not, as in the Federal Court decisions, the refusal of an application for a visa. Mr Turner is correct in saying that the Federal Court decisions concern the refusal of applications for visas. However, I note that in Tay the visa applicant was on-shore and refusal of her application would, presumably, have had a significant effect in so far as she was no longer entitled to remain in Australia.
32. In Tay, the Full Federal Court , reviewing the operation of s 494C(4) of the Act, the wording of which is very similar to that of subregulation 2.55(7), followed the Full Court decision in Xie, and found there was nothing in the wording of s 494C(4) to suggest it created a rebuttable presumption as to the time of receipt. The Court said, at [19]:
For reasons given below, we have concluded that the decision in Xie is not wrong nor does it produce unintended or irrational consequences. The construction of s 494C(4) in Xie and the consequent rigidity of time limits imposed on applications for review may seem harsh but, as the explanatory material referred to below indicates, they result from the considered decision of the legislature as to an appropriate way to facilitate visa applications and to clarify when documents are received.
In my view, the reasoning in this line of three Federal Court cases is equally applicable to the construction of subregulation 2.55(7).
33. The Minister accepts that the documents were delivered to the wrong address and that it was as a result of this that the Applicant did not lodge an application for review within the nine‑day period from the time of deemed notification. It is not the Tribunal’s role to assign responsibility for the documents being delivered to the wrong address, but it would appear that this happened as a result of Australia Post delivering the documents to another firm of solicitors at a different address in Elizabeth Street, and a person at that firm’s offices signing for delivery of a registered post article without checking the addressee.
34. Thus, although it was through no fault of Mr Wilson’s that he (through his authorised representative) did not receive the notice of the cancellation of his visa until 14 April 2011 and did not therefore lodge an application for review of the decision within the time permitted, there is no relief available to him pursuant to the statutory framework operating in respect of such decisions. While I recognise that the decision to cancel Mr Wilson’s visa is one of great significance for him, unfortunately for him, the operation of the statutory framework means that his application lodged with the Tribunal on 18 April 2011 was out of time and the Tribunal therefore has no jurisdiction to entertain the application.
Decision
35. The Tribunal has no jurisdiction to hear and determine Mr Wilson’s application.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President.
Signed: ........[sgd]......................................................................
A. Veness, AssociateDate of Hearing 9 May 2011
Date of Decision 17 May 2011
Solicitor for the Applicant Turner Coulson Immigration Lawyers
Solicitor for the Respondent Australian Government Solicitor
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