Zhang v Minister for Immigration
[2007] FMCA 594
•20 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ZHANG v MINISTER FOR IMMIGRATION | [2007]FMCA 594 |
| MIGRATION – time for filing application for review – date of receipt of decision |
| Judiciary Act 1901 (Cth), ss.39B Migration Act 1958, ss.127, 338, 347, 474, 476, 494 Migration Regulations1994; regulations 2.45, 2.55, 4.10 Australian Postal Corporation Act 1989, ss.27, 32 |
| H v MIMIA (2002) 118 FCR 153 Rahman v MIMIA [1998] FCA 705 Taylor v MIMIA [2005] FMCA 281 Hamad v MIMIA [2006] FMCA 1510 Bodruddaza v MIMIA [2007] HCA 14 |
| Applicant: | ZHE AN ZHANG |
| Respondent: | MINISTER FOR IMMIGRATION & MUTICULTURAL AFFAIRS |
| File number: | BRG 871 of 2006 |
| Judgment of: | Wilson FM |
| Hearing date: | 12 February 2007 |
| Date of last submission: | 12 February 2007 |
| Delivered at: | Brisbane |
| Delivered on: | 20 April 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr. L. Boccabella |
| Solicitors for the Applicant: | A J Torbey & Associates |
| Counsel for the Respondent: | Ms. A. Wheatley |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The name of the first respondent be amended to Minister for Immigration and Citizenship.
The application filed 14 November 2006 be dismissed.
The applicant pay the respondent’s costs to be taxed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 871 of 2006
| ZHE AN ZHANG |
Applicant
And
| MINISTER FOR IMMIGRATION & MUTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant applies, pursuant to s.39B Judiciary Act 1901 (Cth) and s.476 Migration Act 1958 (“the Act”), to review the decision of the Migration Review Tribunal made on 12 October 2006 that it did not have jurisdiction to entertain an application by the applicant to review a decision by a delegate of the Minister to cancel the applicant’s Student (Temporary) (Class TU) Subclass 571 Schools Sector visa. The Tribunal determined that the application was made out of time, and therefore it did not have jurisdiction to entertain it.
The present application turns upon the construction of a number of provisions in the Act and the Migration Regulations 1994 (“the Regulations”). It is necessary to work through the labyrinthine legislative scheme to put the competing arguments in context.
The Tribunal had jurisdiction if a valid application was made to it under s.347 of the Act. Section 347(1) of the Act provides:
“(1)An application for review of an MRT-reviewable decision must:
(a) be made in the approved form; and
(b)be given to the Tribunal within the prescribed period, being a period ending not later than:
(i) if the MRT-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A) – 28 days after the notification of the decision; or
(ii) if the MRT-reviewable decision is covered by subsection 338(5), (6), (7) or (8) – 70 days after the notification of the decision; or
(iii) if the MRT-reviewable decision is covered by subsection 338(9) – the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision; and
(c) be accompanied by the prescribed fee (if any).”
Both parties accept that the decision of the delegate was a “MRT-reviewable decision”, as that term is defined in s.338 of the Act. In particular it is mentioned in s.338(3) of the Act.
Regulation 4.10(1)(b) provides that the time for making an application for review:
“(b) if the MRT-reviewable decision is mentioned in subsection 338(3) or (3A) of the Act – starts when the applicant receives notice of the decision and ends at the end of 7 working days after the day on which the notice is received;”
The substantive argument in the present application concerns identifying the day on which the notice of the decision was received by the applicant. This is important because there is no provision in the legislation for an extension of time. If the application to the Tribunal was made out of time, the applicant is left without recourse. In this regard, since preparing these reasons, the High Court of Australia has handed down its decision in Bodruddaza v MIMIA [2007] HCA 14. However, as I read that decision, it does not apply to this case. Their Honours specifically noted, at foot note 5, that the case did not involve any attack on ss.476 and 476A of the Act.
Because the decision of the Minister’s delegate was to cancel a visa held by the applicant, s.127 of the Act became applicable. It provides:
“(1)When the Minister decides to cancel a visa, he or she is to notify the visa holder of the decision in the prescribed way.
(2) Notification of a decision to cancel a visa must:
(a) specify the ground for the cancellation; and
(b)state whether the decision is reviewable under Part 5 or 7; and
(c)if the former visa holder has a right to have the decision reviewed under Part 5 or 7 – state:
(i) that the decision can be reviewed; and
(ii) the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made.
(3)Failure to give notification of a decision does not affect the validity of the decision.”
Regulation 2.45 then provides:
“For the purposes of section 127 of the Act (which deals with notification of decisions to cancel a visa), the way of notifying the visa holder of a decision is in writing.”
Much of the argument in the present case then focused on Regulation 2.55 which provides:
“(1) This regulation applies to:
(a)the giving of a document to a holder or former holder of a visa relating to the proposed cancellation or the cancellation of a visa under the Act; and
(b)the giving of a document under subsection 501G(3) of the Act relating to a decision to cancel a visa under subsection 501(1) or (2) or 501A(2) or section 501B or 501F of the Act; and
(c)the giving of a document to a holder or former holder of a visa relating to the revocation of the cancellation of a visa under the Act.
(2) However, this regulation does not apply in relation to:
(a) a notice to which section 137J of the Act relates; and
(b) a person who is in immigration detention.
(3)For a document mentioned in paragraph (1)(a) or (c), the Minister must give the document in one of the following ways:
(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 the place of dispatch) of the date of the document; and
(ii) by prepaid post or by 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
(iii) other electronic means;
to the last fax number, e-mail address or other electronic address known to the Minister.
(4) For a document mentioned in paragraph (1)(b):
(a)if the person has held the visa for less than 1 year when the document is to be given, the Minister must give the document in one of the ways mentioned in sub-regulation (3); and
(b)if the person has held the visa for at least 1 year when the document is to be given:
(i) Immigration must try to find the person; and
(ii) the Minister must give the document in one of the ways mentioned in sub-regulation (3).
(5)If the Minister gives a document to a person by handing it to the person, the person is taken to have received the document when it is handed to the person.
(6)If the Minister gives a document to a person by handing it to another person at a residential or business address, the person is taken to have received the document when it is handed to the other person.
(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 case – 21 days after the date of the document.
(8)If the Minister gives a document to a person by transmitting it by fax, e-mail or other electronic means, the person is taken to have received the document at the end of the day on which the document is transmitted.”
The relevant chronology, which is not disputed, is as follows. By letter dated 8 December 2005, and addressed to the applicant at 6 Kitching Street, Chapel Hill, in Brisbane, the Department gave notice of its intention to consider cancellation of the applicant’s student visa. This letter was hand delivered to the applicant, who acknowledged receipt of it. It was not the first or only notification of this kind given to the applicant, but it is the relevant notice for the purpose of this application.
On the same day, the applicant completed a Form 929 Change of Address document. In this document the applicant recorded his residential address as 46 Delafield Street Sunnybank. He recorded his e-mail address as [email protected]. He recorded his “address for correspondence” in the section provided for that purpose as 6 Kitching Street, Chapel Hill. This was the same address as that referred to at paragraph 10 of these Reasons. It is relevant to observe at this point that the applicant was not obliged to complete that section of the document in which he recorded an address to which correspondence should be addressed. Indeed the document contemplates that the address may well be the same as the person’s residential address. However, the applicant filled in the document, providing a different address for correspondence to his residential address. The Department was not to know why the applicant did this. He may well have had perfectly legitimate reasons for having mail sent to a different address to where he was then living.
On 2 March 2006 the delegate made the decision to cancel the applicant’s visa. A letter advising the applicant of this, enclosing a copy of the decision, was prepared and dated 2 March 2006. It was addressed to the applicant at 6 Kitching Street, Chapel Hill. It recorded that the letter was to be sent by registered mail. It also recorded at the top of the first page of the letter an email address: [email protected]. It can be seen that the email address contained one incorrect letter that caused it to differ from that supplied by the applicant on 8 December 2005.
On a date which is uncertain from the Agreed Bundle of Documents, the Department also attempted to send to the applicant by email a copy of the letter and decision record. Because of the incorrect email address that email delivery failed because the recipient mailbox was unavailable.
On 5 April 2006 the applicant completed an application for review to the Tribunal. In this document, the applicant noted his new residential address, and left the box where provision was made for an email address blank. The applicant identified the Department’s letter of
2 March 2006 as being the document notifying him of its decision, but asserted that he was notified of this by email. As at 5 April 2006 that was, in fact, incorrect. No email copy of the letter or decision had been received by the applicant at that time. He left the boxes which provided for notification by post or by hand or facsimile unmarked (Agreed Bundle page 219). Further, the applicant purported to pay the application fee, required by s.347(1)(c) by credit card authorization. I will return to the significance of that in due course.
The applicant attached to his application a copy of the letter and decision dated 2 March 2006, which bore a facsimile imprint at the top of each page with the date 18 March 2006 and the description “Olin” (Agreed Bundle pp226ff).
On 5 April, 2006 the applicant’s migration agent (who was also his counsel who appeared before me) sent an email to the decision maker, in terms which included the following:
“An error has occurred in the transmission of the notification of cancellation of Mr Zhang’s visa. It was sent to the incorrect email address, namely [email protected], when it should have been sent to [email protected]. You will see that the “m” should have been an “n”.
Would you kindly now send the notice to the correct email address, and a copy to me.”
On 7 April 2006 the cancellation letter and decision record was sent by email to both the applicant and his migration agent.
The Tribunal formed the preliminary view that it did not have jurisdiction to consider the application for review dated 5 April 2006. It invited further submissions from the applicant and they were provided. The Tribunal found that the letter and decision notice were correctly posted to the applicant in accordance with Regulation 2.55(3)(c) on 2 March 2006. It noted that the attempted email transmission was merely by way of providing a copy of the decision notification correctly sent by post. Because the applicant did not apply for a review within 7 working days of the deemed receipt of the letter and decision record, his application was out of time. Accordingly, the Tribunal decided that it had no jurisdiction to review the delegate’s decision.
The applicant reiterated submissions made to the Tribunal before me, and raised two new arguments. In essence, the applicant’s submission was that the Tribunal erroneously denied itself jurisdiction because:
a)The letter of 2 March 2006 and the decision record ought to have been sent to the last residential address known to the Department. Because it was not, the deeming provision in Regulation 2.55(7) did not apply;
b)
By also attempting to send a copy of the letter and decision record to the applicant by email, the decision maker evinced an intention to utilize two methods of notification. Until both methods had been successfully achieved, time did not start to run. As the email notification of the letter and decision were not transmitted until
7 April 2006, the applicant was within time;
c)There was no evidence before the Tribunal that Regulation 2.55(3)(c)(i) was complied with and therefore the deeming provision in Regulation 2.55(7) did not apply.
Those arguments referred to in subparagraphs (a) and (c) were not addressed to the Tribunal. In addition, the respondents advanced a further argument in support of the conclusion that the application was made out of time, which relied on the date of payment of the prescribed fee. I will deal with that argument after dealing with the applicant’s arguments.
The first argument advanced by the applicant can be shortly disposed of. It is submitted that for the deeming provision in Regulation 2.55(7) to apply, the decision must be sent to the last residential address known to the Minister. However, that is not the language of Regulation 2.55(3)(c). It allows the Minister to dispatch a document to the person’s last residential address, business address or post box address known to the Minister. The applicant assumes that he does not have a business address or a post box address. In this case, the respondent does not contend that the documents were sent to the last known residential address of the applicant. Plainly they were not. Rather, the Minister argues that the documents were dispatched to the last known post box address of the applicant. If the Minister fails on that argument, then the deeming provision in Regulation 2.55(7) is not relied upon. Therefore the applicant’s first argument fails.
The third argument advanced by the applicant in his application was not further developed in written submissions or in oral argument. Because the issue was not argued before the Tribunal, the respondents put on evidence to answer the argument. The decision maker, Michael Dobbie, in an affidavit filed 2 February 2007 deposes to personally putting the letter and decision in an envelope on 2 March 2006 and then placing the letter in a basket for removal to the mail room. He entered the postage details on the Department’s computer system. The record of the entry in the computer system is annexed to Mr Dobbie’s affidavit. It records that he attempted to send the letter and decision to the applicant by two methods, registered post and email. It also records that the email failed.
Simone Boyd, in an affidavit filed 2 February 2007, deposes to personally receiving the envelope containing the letter and decision on 2 March in the Department’s mail room. She attached a Registered Post sticker to the envelope and recorded details in the Department’s computer system. Ms Boyd also signed a Registered Post Lodgment Document that records the registered post sticker number, the name of the addressee and the suburb and postcode on the mail article. The document annexed to Ms Boyd’s affidavit records that a mail article was dispatched by registered mail to the applicant on 2 March 2006. The registered mail was placed in a container for collection by Australia Post on a daily basis. Australia Post stamps the Registered Post Lodgment Document when the mail was processed. The annexure to Ms Boyd’s affidavit shows that the registered mail was processed by Australia Post on 2 March 2006.
In my view, this evidence adequately proves that the letter and decision were dispatched by the Department to the applicant by prepaid post within three working days of the date of the document. The requirements of Regulation 2.55(3)(c)(i) and (ii) were complied with. The applicant’s third argument fails.
The applicant’s second argument focuses on the unsuccessful attempt by the Department to send a copy of the letter and decision to the applicant by email. This argument derived support, it was submitted, from the decision of the Full Federal Court in H v MIMA (2002) 118 FCR 153.
In H the Full Federal Court was confronted with a factual situation where two notifications were in fact sent, to the applicant and to his migration agent. This resulted in there being two inconsistent timetables for the time within which an application for review had to be given to the Tribunal (in that case the Refugee Review Tribunal). The Full Court accepted (at [8]) that it was not necessary for the Department to notify the applicant personally, because it had notified his migration agent. This discharged the statutory obligation of notification. However, notification was also given to the applicant. The Full Court decided that the Tribunal erred in deciding that the application for review was commenced out of time because it ignored the notification to the migration agent, which if taken into account, meant that the application for review was within time. At [9] their Honours said:
“On the basis of this notification, there are two alternative bases for concluding that the application for review was within time. The first is that the notification to the migration agent was the only relevant notification of the decision, so that the application for review could be lodged at any time before 14 November. This approach assumes that once the Minister first notified the appellant of the decision, that exhausted the Minister’s obligation under s. 66. If that be correct, any further “notifications” (for example by personally serving the appellant with a copy of the decision), would not be notifications under the statute and would have no legal consequence. The second basis for holding the application to be within time assumes that the second notification cannot be ignored, and that it brought into operation a second timetable within which the appellant could file a notice of review. In that event the appellant has been given two inconsistent timetables within which to make an application for review and, in the absence of any statutory basis for giving one priority over the other, the appellant was entitled to choose the timetable that best suited him. That is what occurred in this case, albeit the appellant did not know he was making a choice.”
The Full Court did not endorse which of the alternative bases articulated ought be accepted. The case is factually distinguishable from the present because in H two means of notification were in fact used. Here, at best for the applicant, the Department intended to use two methods of notification but succeeded in using only one.
If the first alternative identified by the Full Court were applied in this case, the applicant would be out of time. It is accepted that the applicant received the letter posted to him, although the applicant says it was actually received by him on 28 March 2006. Putting aside for one moment the effect of Regulation 2.55(7), the applicant was notified by the posted letter. The applicant argues that the email notification occurred on 7 April. On the first alternative, this latter notification would have no legal consequence.
The second alternative identified by the Full Court assumes that there are in existence two alternative inconsistent timetables. The simple fact of this case is that, at the time he submitted his application for review, there were not. Only one means of notification was in fact used. The applicant sought to artificially manufacture a second timetable by asking that the letter and decision by sent to him by email.
In my view, the decision in H, however it be applied, does not assist the applicant.
In my view, H is not authority for the proposition argued by the applicant, which is that if the Department decides to send the notification by two alternate methods, it should be held to that decision, even if it fails in its attempt to do so (or even if it later decides not to notify twice) such that until the decision is notified by both methods there is no notification within the meaning of the Act and Regulations and time does not start to run. This would be so, it is argued, even if the method of notification actually used complied with the legislation.
In my view the applicant’s argument cannot be accepted. Regulation 2.55(3)(c) provides that the Minister “must give the document in one of the following ways” (my emphasis). If notification is given in one of the ways provided for, that is, in my view, sufficient compliance by the Minister with the legislation.
Further, the applicant accepts that the letter and decision were not actually sent by email on 2 March (T17.7). To that extent, the application for review was incorrect insofar as it stated that notification had been by email. By the time the application for review had been given, the applicant had advised the department, in that form, that he did not want to be notified by email. Therefore, it is difficult to see how a subsequent notification by email (as is relied upon by the applicant) can constitute notification in terms of the statute.
Further, the consequence of the applicant’s argument is that an applicant can start time running again by asking for the notification to be sent to him by an alternative means. That cannot have been the intention of the legislature, which has sought to impose strict (some may say draconian) limits on a person’s right to seek review of decisions of the Tribunal. It is, in my view, inconsistent with the plain terms of Regulation 2.55. I accept the respondents’ submission that asking for an additional copy of the decision, after a paper copy is admittedly received, cannot be a notification with the effect of starting time running again.
Interestingly, the applicant’s argument also throws up a further conundrum. As I understand it, the applicant argues that time did not start to run until he received the email of the letter and decision. That occurred on 7 April. Yet he filed his application for review on 5 April. As Regulation 4.10(1)(b), set out above, makes plain, the time for making an application “starts” when notification is received. Section 347(1)(b) of the Act is also in terms that sets outer limits “after the day” on which the notification is received. Here, if the applicant’s argument about the email notification is accepted, the consequence would be (subject to determination of the payment of the fee argument, addressed below) incompetent, and must be dismissed.
It is necessary to then consider the competing arguments as to whether the letter and decision were properly given to the applicant. The respondents argue that the documents were given in compliance with Regulation 2.55(3)(c) to the applicant’s last post box address known to the Minister. It was submitted that the post box address is to be read as the address to which correspondence is to be sent. As stated above, this was nominated by the applicant as 6 Kitching Street, Chapel Hill. This is the address to which the letter and decision were dispatched. As I have found, they were dispatched in the manner and within the time allowed for in the Regulation.
The respondent’s argument is supported by dictionary definitions of “post box” as a letterbox (Macquarie Dictionary, 3rd ed p 1673; Shorter Oxford English Dictionary) or a box to which mail is delivered. That accords with the usual meaning of the term. By providing an address for correspondence in his Change of Address Form, in my view the applicant was stating to the Department that he had a post box at this address.
Interestingly, s.494B(4)(c)(i) of the Act provides that the Minister may send documents to “the last address for service provided to the Minister by the recipient for the purpose of receiving documents”.
During argument, the applicant submitted that there was no evidence that the applicant in fact had a post box at the Kitching Street address. Apart from inferring that he did, by reference to the statement contained in the document signed by the applicant, it seems to be a statutory requirement that there be a post box at a street address for items of mail to be delivered to it. By section 27 Australian Postal Corporation Act 1989 Australia Post is statutorily obliged to supply a letter service. By section 32 of that Act Australia Post can determine conditions for the supply of a mail service by it. Those terms and conditions are found at and relevantly provide that Australia Post only delivers into mail boxes of an approved size at an approved location. The inescapable conclusion from the applicant providing an address for correspondence to be sent to him is that there was a letter box at that address into which Australia Post would place mail. This conclusion is reinforced by the judgment of Wilcox J in Rahman v MIMA [1998] 705 FCA, referred to by counsel for the Minister.
In those circumstances, I am satisfied that the Minister has complied with Regulation 2.55(3)(c). Therefore, by reason of Regulation 2.55(7) the applicant is taken to have received the document on 13 March 2006. See also s.494C(4) of the Act. Neither provision creates a rebuttable presumption. They simply fix the date on which the document is taken to have been received.
Because the applicant received the letter and decision on 13 March, his application for review of 5 April was out of time.
It is not strictly necessary to deal with the other arguments advanced by the Minister. However, in case this matter goes elsewhere, I ought state my views.
The applicant has sworn an affidavit, and a statutory declaration, in which he says he did not actually receive into his possession the letter and decision of 2 March until 28 March. The Minister refers to the application for review dated 5 April, to which was attached a copy of the decision and letter (Agreed Bundle pp226ff). It is observed that these documents were sent by facsimile by “Olin” on 18 March 2006. Enquiries have revealed that “Olin” is Australia Olin Pty Ltd, which is involved in the provision of migration advisory services through its general manager. The respondents seek to draw the inference that because the applicant had a copy of the documents with the facsimile imprint on them, he must have had them in his possession at a date earlier than 28 March. This, it was said, reinforced the conclusion of the Tribunal that the application for review was made out of time.
I would not be prepared to draw the inferences urged by the respondents. All that is known is that Olin had a copy of the documents on 18 March. There is no evidence as to how it got the documents. There is no evidence that it sent the documents to the applicant before 4 April. There is no evidence of who the documents were sent to. There is no evidence that “Olin” was authorized to receive documents on behalf of the applicant. In the circumstances, I reject the respondents’ arguments.
The respondents also argue that if actual receipt of the decision and accompanying letter by the applicant was required (contrary to my conclusion above) then the applicant’s evidence was that he received the documents on 28 March. The respondents then argue that no complying application for review was made until 11 April, and was therefore out of time. This argument relies upon the fact that in the application for review dated 5 April the applicant purports to pay the prescribed fee by credit card. The credit card number originally supplied was correct but the expiry date was not. This was not remedied until 11 April. Therefore, it is said that the application was not properly made, in terms of s.347, in particular 347(1)(c), until 11 April. Therefore, it would be out of time.
The obligation to pay the prescribed fee is a mandatory or essential requirement of a valid application: Taylor v MIMIA [2005] FMCA 281; Hamad v MIMA [2006] FMCA 1510.
In my view, the respondents’ argument, whilst unmeritorious, should be accepted. Although neither party submitted that payment of the prescribed fee could not be made by credit card, in my view for the application to be “accompanied by the prescribed fee” as required by s.347(1)(c) the credit card details must be correct at the time the application is given to the Department. That is, with the details provided, the recipient must be able to then obtain payment of the prescribed fee. A complying application would not be made until correct credit card details were supplied. In this case, they were not. The correct authorization was provided on 10 April, and processed on 11 April. It was not until then that the application was properly made. Unfortunately, that means that the applicant was out of time, if he received the requisite documents on 28 March.
One consequence of my acceptance of the respondents’ argument about payment of the prescribed fee is that if (contrary to my decision) the applicant’s argument about transmission of the email on 7 April is correct, the problems identified by me at paragraph 35 are answered. That would be because the decision would be notified on 7 April and the application made on either 10 or 11 April.
In my view the Tribunal did not make a jurisdictional error, and therefore as a consequence of s.474 of the Act, the application must be dismissed.
I note that the name of the first respondent should be amended. The orders I will make are as follows:
a)The name of the first respondent be amended to Minister for Immigration and Citizenship
b)The application filed 14 November 2006 be dismissed
c)The applicant pay the respondents’ costs to be taxed.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Wilson FM
Associate: Lynnette Chin
Date: 20 April 2007
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