Wilson v Minister for Immigration and Citizenship
[2012] FCA 1421
•14 December 2012
FEDERAL COURT OF AUSTRALIA
Wilson v Minister for Immigration and Citizenship [2012] FCA 1421
Citation: Wilson v Minister for Immigration and Citizenship [2012] FCA 1421 Parties: THOMAS HUDSON WILSON v MINISTER FOR IMMIGRATION AND CITIZENSHIP and ADMINISTRATIVE APPEALS TRIBUNAL File number: VID 585 of 2011 Judge: EDMONDS J Date of judgment: 14 December 2012 Catchwords: IMMIGRATION – decision to cancel visa made pursuant to s 501(2) of the Migration Act 1958 (Cth) – whether the Administrative Appeals Tribunal lacked jurisdiction to review the decision on the ground that the application for review was filed by the applicant’s authorised recipient out of the nine day period referred to in s 500(6B) – whether, as required by s 501G(1)(f)(ii), information was given in the notice in relation to the time in which an application for review could be made to the Tribunal – where inadequate or inaccurate information given: whether written notice duly given for the purposes of s 501G – whether the nine day period, referred to in s 500(6B), has commenced Legislation: Migration Act 1958 (Cth) ss 66, 476A(1)(b), 494B, 494G, 494D, 500, 501G
Migration Regulations 1994 (Cth) r 2.55Cases cited: Chan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 308 applied
Pomare v Minister for Immigration and Citizenship (2008) 167 FCR 494 applied
Zhan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 469 appliedDate of hearing: 5 November 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 35 Solicitor for the Applicant: KTG Lawyers Solicitor for the Respondents: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 585 of 2011
BETWEEN: THOMAS HUDSON WILSON
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
EDMONDS J
DATE OF ORDER:
14 DECEMBER 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application be allowed.
2.The decision of the second respondent be set aside.
3.The first respondent pay the applicant’s costs of the application, as agreed or taxed.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 585 of 2011
BETWEEN: THOMAS HUDSON WILSON
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
EDMONDS J
DATE:
14 DECEMBER 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
This is an application under s 476A(1)(b) of the Migration Act 1958 (Cth) (“the Act”) for review of a decision of the second respondent (“the Tribunal”) ([2011] AATA 325) that it did not have jurisdiction to review the decision of the first respondent (“the Minister”) to cancel the applicant’s visa (“the cancellation decision”).
The Minister was required to give the applicant notice of the cancellation decision pursuant to s 501G(1) of the Act. No issue arises in the present proceeding as to the way in which the Minister purported to give notice. Rather, the application requires an assessment of the adequacy and accuracy of the information given in the notice in relation to the time in which an application for review could be made to the Tribunal as required by s 501G(1)(f)(ii) of the Act. In the event of the information given being found to be inadequate or inaccurate, the ultimate issue is whether the Tribunal was correct to decide that, because the application to the Tribunal was lodged outside the nine day period referred to in s 500(6B) of the Act, the Tribunal lacked jurisdiction to review the cancellation decision.
FACTUAL BACKGROUND
The background facts are uncontroversial.
The applicant was born in New Zealand in 1963. He visited Australia for 17 days in 1982 and then returned on 29 March 1987. On 1 September 1994, by operation of law, he was granted a Class TY Subclass 444 Special Category (Temporary) visa, which entitled him to remain in Australia.
For the greater part of the period from 6 December 1994 until at least November 2011, the applicant was in prison in New South Wales.
On 4 March 2010 the applicant, pursuant to s 494D of the Act, gave the Minister written notice of the name and address of another person authorised by the applicant to receive documents in connection with matters arising under the Act or the Migration Regulations 1994 (Cth) (“the Regulations”) – (his “authorised recipient”). That person was Raymond Charles Turner of Turner Coulson Immigration Lawyers at 302–368 Sussex Street, Sydney (“the Sussex Street address”). The applicant had not withdrawn his notification at any time before 11 March 2011.
Mr Turner was at all material times a migration agent.
The applicant was issued with a Notice of Intention to Consider Cancellation on 12 August 2009, which was sent by registered post to him at Long Bay Correctional Centre, New South Wales.
On or about 2 March 2011, the Minister received a letter of that date from Mr Turner on letterhead bearing an address for Mr Turner of Turner Coulson Immigration Lawyers, that was not the Sussex Street address, namely, an address at 251–253 Elizabeth Street, Sydney (“the Elizabeth Street address”).
On 10 March 2011, a delegate of the Minister decided to make the cancellation decision, cancelling the applicant’s visa pursuant to s 501(2) of the Act.
On 11 March 2011, an officer of the Department on behalf of the Minister prepared and signed a letter of notification of the cancellation decision (“notification letter”) addressed it to Mr Turner at the Elizabeth Street address, dated it 11 March 2011 and dispatched it by prepaid post (Australia Post registered mail) within 3 working days.
The notification letter was dispatched to Mr Turner of Turner Coulson Immigration Lawyers at the Elizabeth Street address, but was not duly delivered to Mr Turner at that address.
On 17 March 2011, for reasons unknown to the Minister (or anyone else connected with this proceeding), the notification letter was delivered by Australia Post to the wrong address; to another law firm, Matouk Lawyers at 150–152 Elizabeth Street, Sydney.
On 14 April 2011, Mr Turner’s firm was advised by Matouk Lawyers that they were in possession of a package addressed to Mr Turner, which was then collected.
On 18 April 2011, Mr Turner lodged an application for review of the cancellation decision with the Tribunal.
On 17 May 2011, the Tribunal decided that it did not have jurisdiction to hear and determine the application as it was commenced out of time.
RELEVANT LEGISLATIVE BACKGROUND AND PRINCIPLES
The starting point is s 501G(1), which requires the Minister to give a person 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. Relevantly, s 501G(1)(f)(ii) requires the notice to state the time in which an application for review may be made.
Given the applicant had appointed Mr Turner as his authorised recipient, s 494D applied as follows:
(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.
The manner in which notification is to be given and the time of deemed receipt of the notification letter was dealt with by the Tribunal at [9]–[11] of its reasons:
[9][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](3) specifies the ways in which the Minister must give the document:
…
(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…
[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.
Subregulation 2.55(3)(c) “mirrors” s 494B(4) of the Act and subreg 2.55(7) “mirrors” s 494C(4). Subsection 501G(3) provides that a notice under subs 501G(1) must be given in the “prescribed manner”; clearly and consistently with the Tribunal’s reasons at [9], that is the manner prescribed in reg 2.55 of the Regulations. The applicant’s argument below at [25] was conditioned or conformed by reference to the “mirror” provisions of ss 494B(4) and 494C(4) in the Act but, as the applicant submitted, correctly in my view, its argument can be equally advanced, and the same result contended for, by reference to the “mirror” provisions in reg 2.55 of the Regulations.
Applications for review to the Tribunal are dealt with under s 500. Relevantly, s 500(6B) provides:
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).
(Emphasis added.)Finally, where any of the requirements of a written notice under s 501G(1)(c) to (f) are not complied with, there will be no “notification” with the result that time will not begin to run in respect of an application to the Tribunal under s 500(6B): Pomare v Minister for Immigration and Citizenship (2008) 167 FCR 494 at [31]; Chan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 308 at [46], [49], [54]; Zhan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 469 at [61–[64]. Zhan and Chan were both concerned with non-compliance with the requirements for notification of a decision to grant or refuse to grant a visa under s 66 of the Act. However, in Pomare, Lindgren J at [31] concluded, correctly in my view, that the same principles must apply to a non-compliance with s 501G and so much was accepted by the parties.
THE APPLICANT’S AMENDED ORIGINATING APPLICATION
The applicant’s amended originating application filed 29 October 2012 raised one ground of review. It read:
The decision of the Tribunal that it had no jurisdiction, because the application was out of time, was attended by jurisdictional error as notification of the delegate’s decision had not been given to the [a]pplicant in accordance with s.501G(1)(f)(ii) of the … Act … and, accordingly, the application for review by the Tribunal was not out of time.
At the forefront of the applicant’s case was the argument that s 501G(1)(f)(ii) requires that the notification letter “states the time in which the application for review may be made” and that the notification letter did not adequately or accurately do this.
THE APPLICANT’S SUBMISSIONS
In his written submissions, the applicant developed his argument as follows:
5.The Minister dispatched, by post, a Notice of Visa Cancellation (“the Notice”) addressed to the business address of the Applicant’s Authorised Representative (Ray Turner of Turner Coulson Immigration Lawyers). The letter was dispatched in accordance with s.494B(4) MA [sic] and was deemed received by the Applicant in accordance with s.494C(4) being 7 days after the date shown on it. Thereafter, the Applicant had 9 days (s.500(6B)) in which to seek review, by the AAT, of the Minister’s decision to cancel.
6.So much is agreed between the parties.
7.However, due notification, for the purposes of s.5012G(1)(f)(ii) [sic] requires that the Notice “states the time in which the application for review may be made”.
8.…
9.In its terms the letter categorically differentiates between Notices that are “delivered by post” and Notices that are “delivered by hand”.
10.In this matter, the Notice was delivered by hand from Latouk [sic] Lawyers on 14 April 2011 (see [15.11] of Minister’s submissions). The application was filed on 18 April 2011 and was filed within the 9 days allowed by s.500 (6B).
11.Clearly this outcome is invalid as being contrary to s.494B and s.494C as referred to above.
12.This analysis of the Notice simply serves to illustrate what is wrong about the Notice.
13.What is wrong about the Notice is that the time for seeking review is said to be predicated upon “delivery by post” or “delivered by hand” whereas the time for review is properly based upon date of “dispatch” as prescribed by s.494B(4) (in this matter) and is not concerned with actual delivery s.494C(4)).
14.In the event the Notice does not comply with sub-para 501G(1)(f)(ii) and time has not begun to run for the purposes of s.500(6B).
Relevantly, the notification letter provided as follows:
Review Rights
You are entitled to have this decision reviewed by the Administrative Appeals Tribunal (AAT). If you wish to have this decision reviewed, you must lodge your application for review within nine (9) days after the day on which you were notified of the decision to cancel your visa under subsection 501(2) of the Act. You are taken to have been notified of the decision when this notification letter and the attached information is delivered to you or your authorised representative (if applicable). If the letter is delivered by post, it is taken to have been received seven (7) working days after the date shown on it. If it is delivered by hand, fax or email, it is taken to be received on the day of actual delivery.
(Emphasis added.)In oral submissions, the applicant argued that, having regard to the immediately preceding sentence, the last two sentences of the Review Rights paragraph should be read as “delivered by post to you or your authorised representative” and “delivered by hand, fax or email to you or your authorised representative”, respectively. According to the applicant, so read, the time for seeking review is effectively aligned with the time of physical receipt of the notice contrary to the provisions of subreg 2.55(7)/subs 494C(4). If the notice is to be regarded as having been delivered by hand from Matouk Lawyers to Mr Turner, the time to lodge an application under s 500(6B) would effectively begin to run from the time of physical delivery. This is not the result under reg 2.55 of the Regulations. The inaccuracy of the information given in the notification letter means that it does not comply with s 501G(1)(f)(ii).
THE MINISTER’S SUBMISSION
The Minister refuted the applicant’s construction of the information given in the notification letter and submitted that the references to “delivered by post” or “delivered by hand, fax or email” are to the method of dispatch employed by the Minister in accordance with subreg 2.55(3); the immediately preceding sentence is “unnecessary” and “unhelpful”, but does not mean that the paragraph is “corrupted”. So read, the notification letter does comply with s 501G(1)(f)(ii).
CONSIDERATION
At the outset, it may be said, with confidence, that if the last three sentences of the Review Rights paragraph had read as indicated below, there would be no doubt that s 501G(1)(f)(ii) had been complied with:
You are taken to have been notified of the decision when the notification letter and the attached information [is taken to have been received by you or your authorised representative (if applicable)]. If the letter is [dispatched/sent] by post, it is taken to have been received seven (7) working days after the date shown on it. If it is [given] by hand, [or transmitted by] fax or email, it is taken to be received on the day [it is handed to the person or the day it is transmitted, as the case may be].
Relevantly, what this reconstruction of the paragraph does is disclose the problems with the Review Rights paragraph as it appears in the notification letter.
Neither the word “delivered”, nor the phrase “delivered by post”, is used in reg 2.55 of the Regulations or s 494C(4) of the Act. Both the word and the phrase imply actual delivery, when actual delivery is irrelevant where the method of giving the notice is by prepaid post. Indeed, the word “delivered” is not even used when the notice is given by hand; the phrase used is “handed to”. And the word is not used in the context of a giving of the notice by fax, email or other electronic means; the phrase used is “transmitted to”.
On any view, the last three sentences of the Review Rights paragraph in the notification letter, both individually, and read as a whole, are inadequate, but they are also inaccurate, in terms of whether they comply with the requirements of s 501G(1)(f)(ii) of the Act.
So much is exemplified by the facts of the present case. While the notification letter was undoubtedly dispatched by prepaid post (subreg 2.55(3)(c)/subs 494B(4)), it was not “delivered by post”; it was given by hand, the hand of Matouk lawyers, who had nothing to do with the postal service engaged by the Minister by way of dispatch. On the face of the Review Rights paragraph it was entirely reasonable for the applicant’s authorised recipient to believe that the time for applying for review ran from that point in time when, by virtue of the relevant provisions of the Regulations and the Act, that time had well and truly expired.
For these reasons, I am of the view that the notification letter does not comply with s 501G(1)(f)(ii); that no “notification” has been given with the result that time has not begun to run in respect of an application for review to the Tribunal under s 500(6B) of the Act.
The application must be allowed with costs, as agreed or taxed. It remains open to the Minister to give a fresh notice of cancellation, compliant with s 501G(1) of the Act.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate:
Dated: 14 December 2012
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