FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration & Citizenship [2011] FCAFC 27

THE COURT ORDERS THAT:

1.    The first respondent’s application for an extension of time be dismissed.

2.    Both appeals be dismissed.

3.    The appellant pay the first respondent’s costs of the appeals save that the first respondent pay the appellant’s costs of and incidental to its notice of contention and its application for an extension of time.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

THE COURT ORDERS THAT:

1.    The first respondent’s application for an extension of time be dismissed.

2.    Both appeals be dismissed.

3.    The appellant pay the first respondent’s costs of the appeals save that the first respondent pay the appellant’s costs of and incidental to its notice of contention and its application for an extension of time.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

Introduction

1    The appellants are Indian nationals whose student visas were cancelled by the Minister’s delegate because they were found to be working more than 20 hours a week in breach of a condition of their visas. The appellants applied to the Migration Review Tribunal (the Tribunal) for a review of the delegate’s decision to cancel their visas.

2    The Tribunal held that it did not have jurisdiction to determine their applications for review because they were made out of time. The Tribunal’s decision was upheld by the Federal Magistrates Court. It is from the decision of Jarrett FM that the present appeal comes to this Court.

3    We propose to summarise the events leading up to the cancellation of the appellants’ visas and the reasons for the decisions of the Tribunal and Jarrett FM. We will then summarise the arguments advanced to this Court. Before anything else, however, it is necessary to set out the relevant legislative provisions.

THE LEGISLATION

The Migration Act 1958 (Cth)

4    Section 116 of the Migration Act 1958 (Cth) (the Act) sets out the grounds under which a visa may be cancelled by the Minister.

5    A decision by the Minister to cancel the visas in question was reviewable by the Tribunal by virtue of s 338(3) of the Act. Under s 347(1)(b)(iii) of the Act, an application for review by the Tribunal was required to be given to the Tribunal within the prescribed time after the notification of the decision. The time prescribed by reg 4.10 of the Migration Regulations Act 1994 (Cth) (the Regulations) is 7 working days.

6    Section 127 of the Act requires that when the Minster decides to cancel a visa, the visa holder be notified of that decision in the prescribed way. The section provides:

127 Notification of decision

        (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.

7    Section 494A(1) of the Act provides:

494A Giving documents by Minister where no requirement to do so by section 494B method

    (1)    If:

    (a)    a provision of this Act or the regulations requires or permits the Minister to give a document to a person; and

    (b)    the provision does not state that the document must be given:

    (i)    by one of the methods specified in section 494B; or

    (ii)    by a method prescribed for the purposes of giving documents to a person in immigration detention;

the Minister may give the document to the person by any method that he or she considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section).

Note:    Section 494D deals with giving documents to a person’s authorised recipient.

8    Neither s 127, nor any other provision of the Act requires the Minister to give a document relating to the cancellation of a visa by the methods set out in s 494B. Having said that, it should be noted that it was open to the Minister to employ the methods of giving documents set out in s 494B.

9    The relevant parts of section 494B of the Act are as follows:

494B Methods by which Minister gives documents to a person

Coverage of section

    (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.

        …

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; or

    (iii)    if the recipient is a minor—the last address for a carer of the minor that is known by the Minister.

10    Section 494C(7) of the Act provides:

494C When a person is taken to have received a document from the Minister

    …

Document not given effectively

    (7)    If:

    (a)    the Minister purports to give a document to a person in accordance with a method specified in section 494B (including in a case covered by section 494A) but makes an error in doing so; and

    (b)    the person nonetheless receives the document or a copy of it;

then the person is taken to have received the document at the times mentioned in this section as if the Minister had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.

11    Sections 494D(1) and (2) of the Act provide:

494D Authorised recipient

    (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.

The Migration Regulations 1994 (Cth)

12    Regulation 2.45 of the Regulations requires that a visa holder be notified of a cancellation of that visa in writing. It provides:

2.45    Notification of decision (Act, s 127)

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.

Note 1   Regulation 2.55 applies to the giving of a document relating to:

● the proposed cancellation of a visa under the Act; or

● the cancellation of a visa under the Act; or

● the revocation of the cancellation of a visa under the Act.

Note 2   A document given to a person in immigration detention is given in the manner specified in regulation 5.02.

13    Regulation 2.55 of the Regulations provides:

2.55    Giving of documents relating to proposed cancellation, cancellation or revocation of cancellation

(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

…

(3)     Subject to subregulation (3A), 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.

Note Subregulation (3A) deals with giving documents mentioned in paragraphs (1) (a) and (c) to minors.

…

(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.

FACTUAL BACKGROUND

14    Both appellants held subclass 573 Higher Education Sector Visas which were issued in June 2008. In January 2009 the appellants were notified that the Minister was considering cancelling their visas under s 116 of the Act due to a breach of the condition that the appellants not work more than 20 hours per week during their stay in Australia. Mr Young was appointed by the appellants to act as their agent in their opposition to the cancellation of their visas.

15    On 5 March 2009, the decision to cancel the appellants’ visas was made. On that date, two letters headed “NOTIFICATION OF CANCELLATION UNDER SECTION 116 OF THE MIGRATION ACT 1958” were sent by registered post to the appellants’ nominated migration agent, Mr Young.

16    The notifications were sent to Mr Young’s Post Office box address in Port Douglas (the post box address). This address appeared on the letterhead Mr Young had used in his communications, on behalf of the appellants, with the Department of Immigration. No notifications were sent to the other address which appeared on Mr Young’s letterhead, being a street address in Cairns (the street address). Each notification indicated close of business on 25 March 2009 as the time by which an application for review of the decision to cancel the appellants’ visas needed to be made. The relevant part of each notification was set out in the following terms:

6    Review rights

You are eligible to apply for review of this decision by the Migration Review Tribunal (MRT). Information on how to apply for review, and addresses and contact numbers of the MRT is on the reverse of this page. If you had a visa cancelled and you decide to make an application for review, you must apply within:

●    two (2) working days after the day on which you received this notice, if you had a bridging visa cancelled and you are in immigration detention because of that cancellation, ie. by close of business on…

●    seven (7) working days after the day on which you received this notice, if you had a visa cancelled (unless you are in immigration detention because of the cancellation of a bridging visa), ie. by close of business on…25-Mar-2009

●    one (1) working day before the expiry of the time period specified above, if you are detained and you choose to give the application to an immigration officer at a detention centre or at an office at an airport, ie. the application must be given to that officer by close of business on…

17    On 16 March 2009, Mr Young informed the Minister’s delegate that he had received the notification letters, but that because they had gone to his post box address, rather than his street address, an error had been made by the department and the appellants should be informed of the decision “correctly” (primary judgment, [19]).

18    An affidavit sworn by Mr Young suggests that Mr Young preferred to receive business correspondence at his street address in Cairns. Mr Young’s preference in this regard was, of course, quite irrelevant to the operation of the legislation and regulations. Of greater relevance for present purposes was the circumstance that in the forms which accompanied Mr Young’s letter to the Department, advising that he had been appointed by the appellants as their migration agent, Mr Young specified that his “postal address” was his street address. The letters, under cover of which these forms of appointment were sent to the Department, displayed on their letterhead both Mr Young’s street address and his postal address. It is on this basis that Mr Young argued that the Minister’s cancellation notices were sent to the wrong address. That argument is the basis for the principal argument advanced in this Court.

19    The relevant officer within the Department seems to have been disposed to concede that Mr Young’s point was a good one. On 17 March 2009, the Department sent new notifications by email to Mr Young. These notifications were substantially identical in terms to those of 5 March, save that they specified the close of business on 26 March 2009 as the time by which any review application needed to be made.

20    The appellants lodged their applications for review on 26 March 2009. The Tribunal rejected the applications on the basis that they had been made out of time (that is, after the close of business on 25 March 2009). Because the applications for review were lodged on 26 March 2009, the time for doing so had expired. Therefore the Tribunal had no authority to determine the applications under the Act.

THE DECISION OF THE TRIBUNAL

21    The Tribunal reasoned that neither s 494B of the Act, nor reg 2.55(3) of the Regulations requires that notification of cancellation be posted to an address specifically provided to the Minister by the recipient for the purposes of receiving documents. The Tribunal held that the notifications of 5 March 2009 were effectively “given” to the appellants under reg 2.55 of the Regulations, in that they were sent by registered post to the appellants’ representative’s post box address.

22    The Tribunal also held, by operation of reg 2.55(9), even if the delegate had made an error in the address to which he had sent the notification letters, that error was immaterial because Mr Young received the notification letters on 16 March 2009. Thereafter, the appellants had seven working days to apply for a review of the decision. That period expired at the close of business on 25 March 2009.

23    As to the second notifications given on 17 March 2009, the Tribunal held that the second notification did not operate to extend the prescribed period which applied, by reason of the valid notification by the 5 March letters.

THE DECISION OF the Federal Magistrate

24    Jarrett FM summarised the terms of the Act that related to the Minister’s obligations to advise visa-holders of a decision to cancel their visas.  He said (at [29]-[30]):

When the Minister decides to cancel a visa, he or she is to notify the visa holder of the decision in the prescribed way: s.127 of the Act. That prescribed way is in writing: r.2.45 of the Migration Regulations 1994. In combination, s.127 and rr.2.45 and 2.54 require that the Minister give to a former holder of a visa a “document” notifying of the cancellation of that person’s visa: Zhang v Minister for Immigration and Citizenship (2007) 161 FCR 419 at 421. Such a written notification is also a document for the purposes of the Act: s.25 Acts Interpretation Act 1901.

The applicants gave the Minister notice of the name and address of another person authorised by them to receive documents under the Act or the regulations on their behalf, as they were entitled to do: s.494D(1) of the Act. It was not submitted by the Minister that the appointment of Mr Young as the applicants’ authorised agent was not effective. Indeed, it was the Minister’s case that the appointment was effective to nominate Mr Young as the applicants’ authorised recipient.

25    Jarrett FM (at [33]-[34]) referred to the Tribunal’s view that reg 2.55 authorised the way in which the notification was given to Mr Young, on behalf of the appellants, and concluded that the Tribunal was in error in this regard. His Honour attributed to the parties agreement both “on this point”, and on the point “that the relevant notification provisions were ss 494A, 494B, 494C and 494D of the Act and not reg 2.55.”

26    His Honour went on to say (at [35]-[36]):

Section 494B of the Act prescribes certain methods by which the Minister may give a document to a person for the purposes of the Act or the regulations. In some cases the use of a method set out in s.494B is prescribed. Where the Minister is permitted or required to give a document to a person under the Act or regulations and no method for doing so is prescribed, the Minister may give the document to the person by any method considered appropriate: s.494A(1). The method adopted might be one of the methods specified in s.494B: 494A(1) of the Act.

In the present case, the use of a method set out in s.494B was not prescribed, but the Minister’s delegate chose to adopt one of those methods for giving the relevant notifications to Mr Young. He did so by dating the document and then dispatching it within 3 working days of the date of the document by prepaid post to Mr Young: s.494B(4). To be effective delivery, however, the document must have been dispatched to:

a)    the last address for service provided to the Minister by Mr Young (the recipient) for the purposes of receiving documents; or

b)    the last residential or business address provided to the Minister by Mr Young for the purposes of receiving documents.

See s.494B(4)(c).

27    Jarrett FM noted that the phrase “last address for service” is not defined in the Act. His Honour went on to hold however, that either address specified on Mr Young’s letterhead would suffice as the “last business address provided” by Mr Young for the purpose of receiving documents (at [40]-[43]):

I doubt that there is scope for argument that the purpose of having such details on letterhead used by a person in business is so that others wishing to make contact with the business may do so using those details. It is difficult to imagine what other purpose might be served by having them present. The specification of a postal address provides either a business address or a means of access to the business or to that place of business. Moreover, the specification of a postal address is to invite postal communication using that address. If that is not the case, what other purpose would be served by the address?

In my view, two postal addresses have been specified by Mr Young – the first (127 Lake Street, Cairns) in the form 956 and the second (PO Box 15, Port Douglas, QLD 4877) in his letterhead.

Moreover, there are two business addresses provided to the Minister by Mr Young for the purposes of receiving documents – his Cairns street address and his Port Douglas post office box. Both were provided at the same time (by Mr Young’s letterhead) and both were provided after the form 956 was given to the Department. They could both equally be described as the last business address provided to the Minister by Mr Young for the purposes of receiving documents. The specification of those addresses on his letterhead was an invitation to use the addresses for the purposes of communication with him: e.g., Macrae v St Margaret's Hospital [1999] NSWCA 381.

The Minister’s delegate was entitled, in my view, to send the relevant notices to the post office box address, it being one of the last business addresses provided to the Minister by Mr Young for the purposes of receiving documents. If Mr Young did not want business mail sent to his postal address as set out on his letterhead, no doubt he would not have included it on his business stationery.

28    His Honour went on to hold that, in any event, s 494C(7) of the Act had the effect that the date of notification was the date of receipt of the first notification, which was clearly 16 March 2009. His Honour said (at [44]-[45]):

In any event, even if my view is wrong and the delegate was obliged to send the notifications to Mr Young at his Cairns street address, Mr Young nonetheless received the document on 16 March, 2009. Notwithstanding the error in the address, both he and the applicants are thereby taken to have received the document on that day: s.494C(7).

The outcome of an application of s.494C(4) (if the first notices were sent to the right address) or s.494C(7) (if an error was made in the address) is, on the facts of these cases the same. Each applicant is taken to have received the notification document on 16 March, 2009 and time for the institution of review proceedings commences from that day.

29    Jarrett FM then addressed an argument that the second notification, sent by the department on 17 March 2009, effectively “re-set” the timeframe in which a review application could be made. In this regard, his Honour discussed the decision of the Full Court of the Federal Court in H v MIMA (2002) 118 FCR 153 and Zhang v Minister for Immigration and Citizenship [2007] FCAFC 151. Jarrett FM referred to, and followed, the more recent decision of Sundberg J in Minister for Immigration & Citizenship v Abdul Manaf [2009] FCA 963. Jarrett FM said at [58] and [61]:

In Minister for Immigration & Citizenship v Abdul Manaf [2009] FCA 963 Sundberg J (sitting as the Full Court of the Federal Court of Australia) dealt with an application to extend time within which to commence an appeal and the appeal itself. His Honour determined during the course of his reasons that:

a)    Consistent with previous authority, s.494C of the Act does not create a rebuttable presumption of fact as to receipt of a notification sent using a method prescribed by s.494B of the Act.

b)    The first notification was sent using a method prescribed by s.494B of the Act and the visa applicant was taken to have received the document in accordance with s.494C.

c)    The defect (ie., sending the letter to the wrong address) in the second notification letter could not affect the validity of a notification that had already been “taken” or “deemed” to have occurred prior to the second notification letter being sent.

d)    Section 347(1) of the Act requires an application for review to be made in the approved form and be given to the Tribunal within the prescribed period (21 days after the notification of the decision by the first notification letter). The application was not made within the prescribed period, and accordingly was not competent. No subsequent letter could confer on the Tribunal jurisdiction it did not have.

…

In my view, Sundberg J’s decision in Manaf binds me to hold that there cannot be two timetables for the commencement of a review application.

30    Accordingly, Jarrett FM held that, since there could not be “two timetables for the commencement of a review application”, and because the first letter received by Mr Young on 16 March was effective to provide the appellants notice of the Minister’s decision, the Tribunal was correct to hold that it did not have jurisdiction to hear the appellants’ review application.

31    His Honour then addressed the argument that by virtue of the terms of the notification sent on 17 March 2009, the Minister was estopped from denying that 26 March 2009 was the correct deadline for lodging an application for review with the Tribunal.

32    After referring to authority on this point, Jarrett FM concluded that jurisdiction could not be conferred on the Tribunal by estoppel. To accept that a new time frame had arisen for the making of the review application would be contrary to the statute which, in terms, operated upon the giving of the valid 5 March notification on 16 March to fix 25 March as the last date for the review application to be made. His Honour said at [76]-[78]):

In the context of an estoppel by representation, it is difficult to identify any representation by the tribunal that the applicants have relied upon. The representation was made by the Minister (via the delegate), someone not a party to the review.

As to the second proposition – that the estoppel operates in this court against the Minister, it is clear that neither agreement between parties, nor any estoppel can operate so as to confer on a court or a tribunal of limited statutory jurisdiction, a jurisdiction that it does not possess: Essex County Council v Essex Incorporated Congregational Church Union [1963] AC 808 at 820 and Sundberg J in Manaf at [28]. To permit the operation of the estoppel as the applicants suggest would be to permit the conferral of jurisdiction upon a tribunal where it does not otherwise exist. It would leave the conferral of jurisdiction upon a tribunal in any particular case to the discretion of the Minister (or his or her delegate) who could exercise that discretion by giving another notification (that would not otherwise be efficacious). That discretion would seemingly be unfettered by any constraints set out in the Migration Act.

Ultimately the applicants’ estoppel point must fail for no other reason than this. If time for the applicants’ reviews commenced to run on 16 March, 2009 (in accordance with the first notification) and the Act and regulations on their proper construction do not permit of another period within which to bring a review application, an estoppel could not operate to confer on the tribunal a jurisdiction that it does not possess.

33    Finally, his Honour addressed the argument that the Minister was obliged to exercise power under the Act in good faith, and that failing to give effect to the deadline identified in the second notification would breach this obligation.

34    In this regard, the appellants relied upon the following passage by French J (as his Honour then was) in WAFV of 2002 v Refugee Review Tribunal [2003] FCA 16 at [52], set out by the primary judge at [79]:

The authorities referred to above and the propositions set out by the Full Court in SBBS make it clear that absence of good faith, for the purposes of the Hickman provisos, is not limited to cases of dishonesty or malice or personal interest. It may be found in a reckless or capricious approach to the exercise of the power in question. Consistently with the language of Dixon J in Hickman and Proctor and in Little, the term “good faith” is not to be considered in isolation from the process to which it is applied. An authority exercising a statutory power is required to act in good faith in the sense that the authority is required to make an honest attempt to exercise the power entrusted to it. An honest attempt to exercise the power is not demonstrated merely by the absence of dishonesty or malice or personal interest. And with respect to the contrary view expressed by Heerey J in SBAP it seems to me on the authorities that bad faith is not necessarily the obverse of good faith. Good faith requires more than the absence of bad faith. It requires a conscientious approach to the exercise of power.

35    Jarrett FM went on to quote the rest of this passage at [80]:

Neither unreasonableness nor irrationality nor error of law or fact nor failure of procedural fairness is sufficient of itself to establish want of good faith. But a substantial departure from minimal standards of decision-making may be such as to indicate that a decision-maker has failed to adopt a conscientious approach to the task before it. It may be indicative of dishonesty or malice or actual bias or recklessness or capriciousness in the exercise of the power. The concept of “good faith” is evaluative. The threshold for finding its absence is high. It may in practice vary according to the nature and subject matter of the power being exercised as well as according to the circumstances of the particular case. In this sense it may be analogous to the variable standard imposed by the requirements of procedural fairness.

36    His Honour concluded that he was obliged to reject the appellants’ submissions on the failure to exercise executive power in good faith. In this Court, the appellants eschewed any suggestion that there had been bad faith on the part of the officers of the Department.

THE Arguments in this Court

37    In this court, the appellants seek to advance the following arguments:

1.    The address to which the first notification was sent could not be described as the “last business address” for the purpose of s 494B of the Act. The terms of the Act specify that there must be one address, “the last business address”, and the learned primary judge fell into error by holding that either of Mr Young’s addresses stated in his letterhead satisfied this description. The last business address provided to the Minister by Mr Young for the purpose of accessing documents was Mr Young’s street address in Cairns.

2.    Section 494C(7) of the Act does not have the effect of curing a defective notification when it is sent to the wrong address. It is merely intended to deem receipt in cases where a document contains a minor or insignificant error. So much was made clear, it is argued, by Sundberg J in Manaf at [31]-[34]. In consequence, the second notification was the correct notification and accordingly, the appellants lodged their applications within time.

3.    In the present case, all the elements of an estoppel are satisfied. The appellants acted upon the representation in the delegate’s second letter to their detriment. The argument advanced by the appellants does not attempt to compel a grant of a visa or substantive entitlement, nor does it attempt to control the statutory powers of the Minister. The estoppel does not extend the authority of the decision-maker beyond that given by statute but rather extends the jurisdiction of the Tribunal to enable the exercise of that authority. The focus is upon the procedural extension of time.

4.    Finally, the appellants seek leave to raise a new ground of appeal. That is, that the second notification “frustrated or negated” the appellants’ entitlement to apply to the Tribunal for review. This argument is grounded in the decision of Merkel J in Chun Wang v Minister for Immigration & Multicultural Affairs (1997) 151 ALR 717 at 722-7. This contention was not addressed to the Tribunal or to Jarrett FM.

38    The Minister joins issue with the appellants’ arguments. The Minister also seeks to support the decision of the Tribunal on the basis that the provisions in reg 2.55 were indeed applicable in this case, contrary to the view of Jarrett FM. To that end, the Minister applied, shortly before the hearing of the appeals, for an extension of time within which to file a notice of contention raising this point. It was common ground that the Minister had not conceded before Jarrett FM that reg 2.55 had no bearing on the issues. The Court reserved its decision on the Minister’s application for an extension of time and heard argument on the merits of the point.

Consideration

39    The comprehensive reasons provided by Jarrett FM mean that it is possible to deal with the appellants’ arguments directly without further introductory discussion.

The appellants’ arguments

40    As to the first of the appellants’ arguments, one may say at the outset that, generally speaking, there is no reason to suppose that the singular reference to “the last business address” in s 494 B(4)(c)(ii) of the Act does not include the plural, “the last business addresses”. That interpretation would be in conformity with s 23(b) of the Acts Interpretation Act 1901 (Cth). We doubt whether a contrary intention can be discerned from the language of the Act: it is perfectly possible, as a matter of language, logic and business, for a person to have several addresses, including several business addresses, at any one time. A person who invites the sending of correspondence to any one of a number of addresses can sensibly be taken to have assumed responsibility for checking his or her mail.

41    In the course of oral argument, ably presented by Mr Gilbert of Counsel for the appellants, emphasis was placed on the references in s 494B(4)(c)(ii) to the words “for the purposes of receiving documents”. It was argued that in the documents whereby Mr Young gave notice to the Department of his appointments as the appellants’ migration agent, Mr Young’s street address was expressly and exclusively specified as his “postal address”. Accordingly, only the address so specified, that is, his street address, could be said to be Mr Young’s “last…business address provided to the Minister…for the purposes of receiving documents”.

42    There might have been force in this argument if it were the case that s 494B provided an exhaustive list of the methods by which notifications of cancellation may be given. But as Mr Bickford of Counsel for the Minister rightly pointed out, s 494A of the Act makes it clear that, in cases of visa cancellation, s 494B is not an exhaustive statement of the methods by which notification of cancellation of a visa may be given by the Minister. Mr Bickford pointed out that, whatever means had been used to notify Mr Young of the cancellation of the appellants’ visas, he in fact received that notification on 16 March 2009. And as a result, by virtue of s 494D(2), the appellants received the notification of the cancellation of their visas on that date.

43    In our respectful opinion, Mr Bickford’s argument must be accepted and the appellants’ first argument must be rejected. It is common ground that Mr Young was authorised to receive documents on behalf of the appellants in conformity with s 494D(1) of the Act. It is also common ground that the 5 March 2009 notifications were given to Mr Young on 16 March 2009. Time began to run on that day for the appellants to make their review applications for the Tribunal and expired on 25 March 2009.

44    As to the second argument, the question of whether a defective notice might be cured under s 494C(7) arises in this case only if the notifications of 5 March were in fact defective. Because we have concluded that the notification given by the letters of 5 March 2009 was not defective, there is no reason to seek to come to a firm view of the scope of s 494C(7).

45    As to the appellants’ third argument, there are two assumptions on which this argument depends. Neither is correct. First, there is the assumption that there can be an estoppel against the Tribunal which precludes it from declining jurisdiction. In our view, the Tribunal did not conduct itself in any way which might estop it from declining to entertain an application received out of time. It was suggested that the Tribunal might be estopped by reason of the terms of one of the Tribunal’s brochures which was included with the notification. The brochure stated relevantly:

Time limits for making your application

There are strict time limits for lodging your application form and paying the application fee (or lodging an application for fee waiver).

The Tribunal cannot extend time limits or accept applications made outside a time limit. You should therefore lodge your application without delay.

The decision letter sent by the Department should state the time limit that applies to you. You may also refer to Table 2 at the end of this factsheet for a general guide.

If you are in any doubt as to the time limit that applies to you, please contact the Tribunal.

46    It is difficult to read the statement that “the decision letter sent by the Department should state the time limit that applies to you” (emphasis added) as a representation that the Tribunal is willing and able to accept an application out of time so long as it is made consistently within the terms of the Department’s decision letter. However this may lie, the absence of evidence that Mr Young or the appellants relied upon the statement in the brochure, which accompanied the 16 March notification, to refrain from making their review applications until 26 March 2009 is fatal to the estoppel argument based on the Tribunal’s brochure.

47    The second assumption underlying the third argument put on behalf of the appellants is that the officers of the Department (or the Tribunal) might be taken by Mr Young to have power to alter the timeframe for objection laid down by the legislature. That assumption is contrary to the fundamental principle of the separation of powers: that officers of the executive government have no power to alter the state of affairs ordained by the legislature. It is this principle that underlies the proposition that there can be no estoppel against a statute: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 17; Minister for Immigration & Ethnic Affairs v Polat (1995) 57 FCR 98 at 105. A contrary proposition was once countenanced by F T Brennan J in Egan v Commissioner of Taxes (Qld) (1934) 3 ATD 53 at 55. In a passage which was clearly obiter, his Honour countenanced the possibility that an appeal against the disallowance of an income tax deduction might be allowed on the basis of an estoppel, notwithstanding that the claim did not fall within the terms of statute, in circumstances where the taxpayer had continued to incur the expenditure on the strength of the Commissioner’s mistaken allowance of earlier claims for such a deduction. While such reasoning arguably anticipated an approach taken by Denning J (as His Lordship then was) in Robertson v Minister of Pensions [1949] 1 KB 227 at 232, it is contrary to the Australian authorities mentioned. Further, that approach was expressly and unanimously disapproved by the House of Lords shortly thereafter: Howell v Falmouth Boat Construction Co Ltd [1951] AC 837 at 845, 848, 849, 850. Subsequent developments in England whereby substantive relief is afforded to those in whom a “legitimate expectation” has been engendered by the action of a public official, q.v. R v North and East Devon Health Authority; Ex parte Coughlan [2001] QB 213 have not found favour in Australia: Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1 at [65]-[69] and [48]. To countenance the creation of a substantive right, contrary to express statutory provision, on the basis of a representation made by an officer of the Executive would be a considerable retrograde step in terms of principle and all the more so in under a constitution which expressly provides for a separation of powers. It must be recalled that Article 1 of the Bill of Rights 1688 (Eng) provides, “That the pretended power of suspending of laws or the execution of laws by regal authority without consent of Parliament is illegal”.

48    In this regard, those who seek the benefits of the Act and officers of the executive government are equally bound by the provisions of the Act. Neither the officers of the Department nor the Tribunal have any legal authority to vary the prescriptions of the Act and Regulations. They could not, by express agreement with the appellants, alter the timetable applicable under the Act and Regulations: a fortiori, their conduct could not give rise to an estoppel having the same effect.

49    To the extent that the rejection of the appellants’ third argument might be thought to be harsh or unjust, it must be appreciated that the appellants had the benefit of advice from Mr Young, who decided to take a point, which was either right or wrong. A concession by the Department could not make Mr Young’s point right if it was wrong. Next, it is necessary to understand that the rights enjoyed by the appellants as visa holders were created by the Act, and the Act determined the extent of those rights and the conditions on which they might continue to be enjoyed. Parliament has made it quite clear that the rights of review conferred on the appellants were to be exercised within a short time frame. This time frame may not be extended by officers of the executive government, the Tribunal or the courts. It is a matter for the legislature to fix the time limits for the exercise of the rights conferred by the Act; neither officers of the executive government, nor the Tribunal, nor the courts, have authority to set aside or vary the provisions made by Parliament. That having been said, it should also be noted that in this case there does not appear to have been any reason why the appellants could not have made their application for review to the Tribunal within the time fixed by the notification of 5 March.

50    The appellants’ fourth argument must also be rejected. The appellants were entitled to apply to the Tribunal for review; they were late in doing so because of Mr Young’s failure to appreciate that the notifications of 5 March 2009 were valid. An error on Mr Young’s part as to the efficacy of the notifications of 5 March does not mean that the appellants’ entitlement to apply for review was frustrated or negated: it simply means that by reason of an error on the part of their agent, the appellants’ rights were not exercised in accordance with the requirements of the law.

51    The appellants’ reliance upon the decision of Merkel J in Chun Wang is misplaced. In Chun Wang, the applicant, a Chinese student, applied for a review of a decision by the Immigration Review Tribunal (the IRT) which affirmed the Minister’s decision to refuse a class 816 visa. On 21 December 1995, the IRT posted a statement of the decision to the applicant’s address. The addressee’s name on the envelope was not the name of the applicant. It was however, received at the applicant’s address. The applicant did not open the envelope. On the 5 February 1996, an IRT officer provided the applicant with a copy of the decision and told him that the decision could no longer be appealed as 28 days had already passed since it had initially been made. The applicant therefore believed he had lost his right to appeal the IRT decision; the applicant therefore lodged an application for review in the Federal Court but subsequently, on 5 May 1996, the Minister contended that under s 478 of the Act the Court had no jurisdiction to review the decision because the application was lodged more than 28 days after notification on 5 February 1996. In addressing the issue whether the notification on 5 February 1996 constituted a notification for the purposes of s 478, Merkel J held that for the purposes of s 478(1) of the Act, notification occurred when the substance, or outcome, of the decision was actually communicated to the person adversely affected. Merkel J said at 720 that:

…it would be an extraordinary result under the Act if a person’s right to review a decision, that can affect that person’s life and well-being, can expire before the person becomes aware of the decision.

52    Merkel J considered that the primary purpose of notification by the IRT under s 478 was to enable the person notified to consider the decision and to apply for review within 28 days of notification. Merkel J considered that s 478 was to be construed purposively, so that a notification which includes, or is accompanied by, incorrect information about review rights and which substantially frustrates or negates that purpose is not a notification within s 478 of the Act. Merkel J said at 726:

The application of these principles and authorities in the present case results in it being legitimate and necessary to imply a condition in respect of a notification by the IRT, for the purposes of s478. The notification must not be carried out in a manner which frustrates or negates the entitlement of the person notified to lodge an application for review of the decision within 28 days of the notification. Another way of putting the implication is that, as the sole or primary statutory function of a notification for the purposes of s478 is the commencement of the 28 day period for review, it is an implied condition of the valid exercise of the power of notification that it not be exercised in a manner which frustrates or negates that function.

53    Merkel J concluded that the inadequate notification of 21 December 1995 and the erroneous advice of 5 February 1996 had the effect of frustrating or negating the applicant’s entitlement to review. Accordingly, time only commenced to run under s 478 on 10 April 1996, when the applicant became aware that the advice that he had no right of review or appeal was not correct. Merkel J explained at 727:

At that time the “notification” of 5 February 1996 became unburdened by the incorrect advice and thereby became a “notification” for the purposes of s 478. Accordingly, the application was lodged within time and the court has jurisdiction to review the decision of the IRT.

54    The decision in Chun Wang is readily distinguishable on the facts. In the present case, no question of non-receipt of the notification arises. Mr Young actually received the notifications in due time and the only reason the appellants’ rights were not exercised was because of the imperfect understanding of the law by the appellants’ own agent.

THE MINISTER’S CONTENTION

55    There was no substance in the point which the Minister sought to raise by notice of contention. Regulation 2.55 is concerned with the giving of documents to a person who actually holds, or held, a visa. It is not possible to read the provisions of s 494B and reg 2.55 as supplementing each other. In this regard we respectfully agree with Jarrett FM.

56    The Minister sought to rely on reg 2.55(9) as curing any defect in the notice arising from the circumstance that it was not given to Mr Young at his “business address”. However, reg 2.55(9) has no operation for the reason that reg 2.55(1) makes it clear that no part of reg 2.55 applies to the giving of notification to a person other than an actual holder or former holder of a visa.

CONCLusion AND ORDERS

57    The arguments of the appellants have been rejected.

58    The first respondent’s application for an extension of time should be dismissed.

59    Both appeals should be dismissed with costs, save that the first respondent should pay the appellants’ costs of and incidental to its notice of contention and its application for an extension of time.

Associate:

Dated:    4 March 2011