FEDERAL COURT OF AUSTRALIA

SZJDS v Minister for Immigration and Citizenship [2012] FCAFC 27

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Magistrates Court on 31 August 2011 be set aside and in lieu thereof it be ordered that:

(1)    the decision of the second respondent dated 15 June 2010 be quashed;

(2)    the second respondent hear and determine the application for review according to law;

(3)    the first respondent pay the applicant’s costs.

3.    The first respondent pay the appellant’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

RARES AND COWDROY JJ

1    On 20 November 2009 the appellant made an application to the Migration Review Tribunal to review a decision of a delegate of the Minister to cancel his subclass 426 (Domestic Worker (Temporary) – Diplomatic or Consular) Visa under s 116 of the Migration Act 1958 (Cth). It is common ground that the delegate’s decision to cancel the appellant’s visa was an MRT-reviewable decision (s 338(3)) for the purposes of Pt 5 of the Act.

2    The sole issue in this appeal is whether the Tribunal failed to give the appellant notice, in accordance with s 360A(2)(a) of the Act, inviting him to a hearing . It is also common ground that on 17 March 2010 the Tribunal sent a notice of the hearing on 12 May 2010 to the appellant’s representative, his solicitor, Ms Lynette Payne. The appellant did not appear at the time and place of that hearing. As a result the Tribunal dismissed his application for review.

3    The dispute is about whether the appellant authorised Ms Payne to be recipient of his correspondence from the Tribunal in accordance with s 379G of the Act. It arises in the following way.

Background

4    On 20 November 2009 Ms Payne assisted the appellant in preparing a form M2 entitled “Application for Review to the Migration Review Tribunal (for applicants in immigration detention)” (AB 105). However, that form was not the appropriate one for the appellant to use because he was not in immigration detention. Moreover, it made no provision for the applicant for review to give his or her own address. The completed form M2 nominated Ms Payne as both the appellant’s representative as well as his authorised recipient of correspondence. But, because it was designed for persons in immigration detention, it also stated that copies of all correspondence would be sent to the detainee as well as anyone authorised by him or her to be the recipient. Ms Payne wrote a covering letter with the form M2 that informed the Tribunal of his home address and sought a fee waiver because of his impecuniosity.

5    As the trial judge found, the appellant or someone on his behalf delivered the covering letter and form M2 to the Tribunal later on 20 November 2009. At that time, an officer of the Tribunal noticed the obvious fact that the form M2 was inappropriate. The officer assisted the appellant to complete and lodge then and there the correct form M1, entitled “Application for Review to the Migration Review Tribunal (for applicants not in immigration detention)”. Her Honour found that in doing this, the appellant, or a person assisting him, removed the completed section B of the form M2 appointing Ms Payne to be his representative, that she had signed, and substituted it as section E of the form M1. The two sections in forms M2 and M1 respectively were identical apart from one being designated “section B” and the other “section E”. The section B of the appellant’s form M2 was simply reintituled and placed in the form M1 by crossing out “B” and substituting “E”. The Tribunal kept the remainder of the form M2 on its file with the notations of “Incorrect Form” and a crossing out of its “received” stamp.

6    Section F of the form M1 was headed: “Where do you want us to send correspondence about this application?”. Below this question section F continued with a number of paragraphs and then stated:

“Please send all correspondence in connection with this review: (tick one box only).

If you do not nominate an authorised recipient, all correspondence in your case will be sent to you.”

Instead of ticking the box for his representative (i.e. Ms Payne) to be his authorised recipient, the appellant ticked the next box specifying “to another person whom I nominate as my authorised recipient”. However, the appellant did not identify anyone as the person whom he authorised to be the recipient in the space provided below that box in section F of his form M1.

7    Thus, the question on this appeal is whether the failure of the appellant to identify anyone as his authorised recipient in the form M1, required the Tribunal to do what section F said it would do, namely send all correspondence to him. The appellant contends for that result. The trial judge held that the appellant’s nomination of Ms Payne as his authorised recipient of correspondence in the form M2 remained effective and was not displaced by the way in which he later completed section F of the form M1.

The legislative scheme

8    Part 5 of the Act applies to MRT-reviewable decisions. An application for review of an MRT-reviewable decision must be made in the approved form (s 347(1)(a)). The Minister may approve a form for the purposes of a provision of the Act in which the expression “approved form” is used (s 495; see too s 5(1)). Except in certain circumstances that are not relevant here, the Tribunal must invite an applicant for review to appear before it to give evidence and present arguments relating to the issues arising in relation to the review (s 360(1)). The critical provisions for present purposes were found in ss 360A, 379A and 379G. Relevantly, s 360A provided:

“360A    Notice of invitation to appear

(1)    If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.

(2)    The notice must be given to the applicant:

(a)    except where paragraph (b) applies—by one of the methods specified in section 379A; or

(b)    if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.” (emphasis added)

9    Section 379A provided for a number of methods by which the Tribunal could give documents to a person for the purposes of, inter alia, s 360A(2)(a), including relevantly by, mail at the last residential or business address that the person had provided to the Tribunal in connection with the review (s 379A(3)). However, s 379G allowed an applicant for a review to nominate an authorised recipient to receive correspondence, instead of it being given to him or her, in the following terms:

“379G    Authorised recipient

(1)    If:

(a)    a person (the applicant) applies for review of an MRT‑reviewable decision; and

(b)    the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review;

the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.

Note:    If the Tribunal gives a person a document by a method specified in section 379A, the person is taken to have received the document at the time specified in section 379C in respect of that method.

(2)    If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.

(3)    The applicant may vary or withdraw the notice under paragraph (1)(b) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the applicant’s authorised recipient.

(4)    The Tribunal may communicate with the applicant by means other than giving a document to the applicant, provided the Tribunal gives the authorised recipient notice of the communication. ...” (emphasis added)

10    For the purposes of s 360A(2)(b), reg 5.02 of the Migration Regulations 1994 (Cth) provided that a document to be served on a person in immigration detention could be served by giving it to him or her personally or to another person “authorised by him or her to receive documents on his or her behalf”. By force of reg 4.10(4)(a), an application for review had to set out the name and address of the applicant for review. Additionally, reg 4.39 provided that an applicant for review could lodge an address for service with the Tribunal and, at any time thereafter, could lodge a new address for service in that review.

The trial judge’s decision

11    The trial judge drew the inferences set out above concerning the circumstances in which the forms M2 and M1 were included in the file of the Tribunal. There was no reliable testimony before her Honour as to how the form M1 came to be filed in the Tribunal on 20 November 2009 when the mistake with the use of the inappropriate form M2 was discovered. The appellant gave, what her Honour found to be, an inaccurate reconstruction of events of that occasion and she did not accept his evidence on this issue. The trial judge said that the appellant’s evidence was at times inconsistent, confused, non-responsive or lacking in clarity.

12    The appellant denied that he had received the copy of the Tribunal’s invitation to the hearing on 12 May 2010 that her Honour found Ms Payne had sent to him by post. Despite her reservations about his evidence, her Honour found that she was not satisfied that the appellant actually received a copy of the invitation to the hearing. In addition, her Honour accepted Ms Payne’s evidence that she had no recollection of discussing the Tribunal hearing scheduled for 12 May 2010 with the appellant. Accordingly, her Honour was not satisfied that the appellant had actual notice of the hearing in the Tribunal.

13    Her Honour found that s 379G did not require the written notice of the appointment of an authorised recipient to be made or given in any particular manner. The trial judge found that, by nominating Ms Payne as his authorised recipient in the form M2 that he lodged with the Tribunal on 20 November 2009, the appellant had given an effective notice to the Tribunal of her appointment to that role for the purposes of s 379G(1)(b). Her Honour held that the way in which the form M1 had been completed had not been effective to vary or withdraw the notice, in the form M2, of Ms Payne’s appointment as the appellant’s authorised recipient of correspondence in connection with the review saying:

“I am not satisfied that an incomplete nomination as an authorised recipient of an unspecified “another person” whose name and contact details were not provided could be said to “plainly and unequivocally” overtake and supersede the nomination in Form M2 of Ms Payne as the applicant’s authorised recipient in the sense considered in Lo [v Minister for Immigration (2007) 159 FCR 160 at 179] at [49]. It was ineffective to vary or withdraw the notice. Section 379G(3) was not satisfied.” (original emphasis)

14    Her Honour held that the way in which section F of the form M1 was completed did not amount to an implicit indication to the Tribunal that correspondence should be sent to the appellant in place of Ms Payne. Her Honour held that the Tribunal had given the appellant notice of the hearing in accordance with the requirements of s 360A(2)(a) by sending the notice of 17 March 2010 to Ms Payne as his authorised recipient. Accordingly, she dismissed the application for constitutional writ relief.

The further evidence on the appeal

15    Although there was no issue below that the forms M1 and M2 were “approved forms”, her Honour noted that proof of this had not been the subject of evidence. During the hearing of the appeal the parties were given leave to make further written submissions on a matter that arose in the course of oral argument. The Minister had contended that, although both forms M1 and M2 were approved forms, it was open to an applicant for review to use either to make a valid application, regardless of whether the form he or she used was appropriate to his or her situation with respect to being, or not being, in immigration detention. In substance, the Minister argued that by lodging the form M2 with the Tribunal, the appellant had, first, made a valid application for review even though he was not in immigration detention, and, secondly, a valid, and never revoked, nomination of Ms Payne as his authorised recipient.

16    The parties tendered evidence in the appeal by consent concerning the process by which forms M1 and M2 had become approved forms. The Court admitted this material as evidence pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth). The discretion to admit fresh evidence on appeal under s 27 is at large, but must be exercised judicially having regard to the range of considerations explained by McHugh, Gummow and Callinan JJ in CDJ v VAJ (1998) 197 CLR 172 at 201-204 [108]-[116]; see too Wills v Australian Broadcasting Corporation (2009) 173 FCR 284 at 294-295 [52]-[55] per Rares J, North J and Emmett J agreeing on this point at 287 [8] and [15].

17    The significance of the status of forms M1 and M2 was touched on by her Honour and came to assume considerable importance in the course of argument of the appeal. There is no dispute about the evidence being admitted and the Full Court has had the benefit of full submissions as to its effect. Moreover, the reproduction of the two forms in the appeal book did not include the cover pages of the forms. The further evidence enables the parties’ arguments, as to whether or not a valid application for review must be on one or other form, and the purpose of prescribing each of them to be considered. Since these arguments involve issues that may affect proceedings in the Tribunal generally and may demonstrate that the decision below was erroneous, the evidence should be admitted.

18    On 25 February 2005, pursuant to the power of delegation in s 496, the then Minister delegated her powers to approve forms under s 495 of the Act to the principal member of the Tribunal. On 30 March 2005, the then principal member, as the Minister’s delegate, approved new application forms substantially to the effect of the two forms M1 and M2 used by the appellant. On 4 November 2008, the then principal member, acting on the delegation of 25 February 2005, approved the actual forms M1 and M2 used by the appellant which had slight amendments to those approved in 2005. The 2008 version incorporated changes to the name of the Department together with some varied telephone numbers and addresses for the Tribunal. The introductory page of form M2 contained a box in bold that stated (original emphasis):

In contrast, the introductory page of form M1 contained in bold a box that stated (original emphasis):

The parties’ submissions

19    The appellant argued that by lodging the form M1 he withdrew the notice appointing Ms Payne as his authorised recipient in his original form M2. He contended that the form M1 was created later than the earlier appointment of Ms Payne in his form M2, and the form M1 was completed inconsistently with the continuance of her authorisation to receive correspondence. It followed, so the appellant contended, that Ms Payne’s appointment had been withdrawn by the form M1 under s 379G(3). The appellant submitted that the trial judge had erred by adding a requirement that the withdrawal “plainly and unequivocally overtake and supersede the nomination in form M2”. He argued that, in contrast to his using section B of the form M2 as section E of his form M1, he had not done anything to that effect such as using section C of the form M2 (that had nominated Ms Payne as his authorised recipient) to replace section F of the form M1. The appellant contended that, in these circumstances, the Tribunal had committed a jurisdictional error because it had not sent the notice of the hearing to him.

20    The Minister argued that the appellant’s form M2 was an approved form and, even though he was not in immigration detention, by lodging it with the Tribunal he had instituted a valid application for review in accordance with s 347(1)(a). He argued that the subsequent completion of the form M1 was a step in an already instituted application. He also argued that s 347(1)(a) did not require any particular approved form to be used. He submitted that the use in s 347(1)(a) of the definite article in the expression “the approved form” did not preclude use of any other approved form by reason of the presumption that the singular includes the plural in s 23(b) of the Acts Interpretation Act 1901 (Cth). The Minister argued that when the appellant lodged the form M2, he had satisfied all of the statutory preconditions in s 347 necessary to make a valid application for review.

21    The Minister said that it could not have been the legislative intention that the use of one of a number of approved forms for applying for a review in the Tribunal would defeat the rights of an applicant for review because he or she should have used a different approved form to institute that application. The Minister contended that the appellant’s lodgement of the form M1 did not withdraw his earlier nomination of Ms Payne as his authorised recipient. He also submitted that because section F the form M1 did not identify anyone as the person to whom the appellant wished correspondence to be sent, it had no effect to vary or withdraw Ms Payne’s nomination as that person in his form M2. The Minister argued that the trial judge had made a finding, and not applied as a test, that the appellant had not plainly and unequivocally withdrawn Ms Payne’s nomination. The Minister argued that the appellant had not intended, and the forms lodged had not disclosed to the Tribunal, that someone other than Ms Payne be his authorised recipient.

22    The Minister drew the Court’s attention to reg 4.10(4)(a) and argued that the appellant had complied with the requirement of setting out his address in the form M2 by giving Ms Payne’s address in it or, alternatively, he did so by lodging his form M1 on the same day and so cured any defect in the form M2. The Minister argued that an applicant for review could nominate an authorised recipient before the application was lodged with the Tribunal. He also contended that the nomination could be made, in any event, at any earlier time during the day on which the application for review was lodged since parts of a day should be disregarded.

Consideration

23    The Minister’s power under s 495 to approve a form for the purposes of making an application for review of an MRT-reviewable decision under s 347(1) was not confined. The Minister, or a delegate, could approve more than one form for the purposes of s 347(1). Part 5 of the Act, and in particular s 360A(2) contemplated at least two classes of applicants for review, those in, and those not in, immigration detention. Thus, Pt 5 proceeded on the footing that an application for review under s 347(1) may involve some difference in the procedures to be followed, such as giving notice of an invitation to appear before the Tribunal, depending on whether or not the applicant for review was in immigration detention. Additionally, there were many kinds of MRT-reviewable decisions that were contemplated in s 338, including decisions concerning different classes of visa and different powers of cancellation.

24    The power to approve a form or forms can be used to create a number of particular forms each of which is only apposite to be used by a particular class of applicant for review and will contain information that is required by the Tribunal for the purposes of that class, but not other classes, of MRT-reviewable decisions.

25    There is a distinction between a requirement to make an application for a visa under s 45 of the Act on a specific form and an obligation to complete that form in respect of stated directions: Wu v Minister for Immigration (1996) 64 FCR 245 at 261 per Carr J, 278-279 per RD Nicholson J, with whom Jenkinson J agreed; Pradabsuk v Minister for Immigration (2006) 150 FCR 584 at 595 [46] per French, Stone and Siopis JJ.

26    Two different scenarios can arise where legislation requires a specific form to be used to make an application. The first arises where a specific form is required to be used to make an application. In this instance, it is essential that the specified form be used. Here, there is no scope for partial or substantial compliance with the requirement to use the particular form. Either an applicant uses the correct form, or the applicant does not. If the applicant does not use the correct form, the attempt to make an application using the wrong form will be invalid.

27    The second scenario arises where an applicant uses the prescribed form, but fails in some respect to complete it accurately or fully. In this instance, the failure does not necessarily result in an invalid application. That is because of the operation of s 25C of the Acts Interpretation Act 1901 (Cth) which provides that where “… an Act prescribes a form, then unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient”.

28    The distinction between the first and second scenarios is that a person cannot partially or substantially comply with the requirement to use the specific form; the application will be valid only if he or she uses the specific form, otherwise the application is invalid. On the other hand, if the person substantially complies with the directions on that specific form, depending on the circumstances, a partial failure to complete it in accordance with its stated directions may not affect its validity

29    Sections 347 and 348 of the Act are not precise analogues of sections 45-47, which another Full Court considered in Wu 64 FCR 245. The chapeau to s 46(1) provides that, subject to certain specific exceptions “an application for a visa is valid, if and only if, certain conditions are fulfilled including the use of a specific form to make such an application. Similarly, s 347(1)(a) provides:

“(1)    An application for review of an MRT-reviewable decision must:

(a)    be made in the approved form; and …”

30    In Wu 64 FCR at 278-279 RD Nicholson J explained that ss 45-47 required a specific application form as a necessary precondition to the validity of an application for a visa under s 45 saying, in a passage cited with approval in Pradabsuk 150 FCR at 594 [44]:

“Particular features of ss 45-47 of the Migration Act relevant to a proper construction of them are: s 45(1) asserts that a non-citizen "must" apply for a visa of a particular class. Section 46 introduces the notion of validity as attaching to an application only in certain circumstances, indeed "if, and only if" certain requirements are met. One such condition is that the application is made in the way required by ss 45(2) and (3), that is as provided for in r 207. Section 47(1) confines the Minister to only considering a valid application for a visa. Section 47(3), "to avoid doubt", enacts, that the Minister is not to consider an application that is not a valid application. How much plainer could Parliament have made its intention that an application in the required manner is an essential precondition to the Minister, as the relevant decision-maker, exercising the power to consider and grant a visa? By linking the concept of validity to the use of Form 866, Parliament has spelt out that the use of that Form is of such importance to the general object of the legislation in this respect that it is incapable of partial compliance; to disregard it is to imperil validity of a ministerial Act ...”

His Honour concluded that:

“There is no room left by the statute for the concept of a constructive application or substantial compliance with the provisions of a form by conduct falling short of use of the form.”

The Full Court held there that the requirement to use the specified form was substantive and not procedural.

31    We are of opinion that the Parliament intended a similar result in enacting ss 347 and 348. Those sections require that an application for review of an MRT-Reviewable decision will only be made validly by use of the approved form. The purpose of each of forms M1 and M2 was clear. The box on the cover page of each of them required an applicant for review to use the particular one of those two forms that was appropriate having regard to whether or not he or she was in immigration detention. The information that each of the forms required and their structure were different. Thus, unsurprisingly, form M2 did not require more information under reg 4.10(4)(a) about the address of an applicant for review than that he or she was in immigration detention. In contrast, form M1 required the applicant for review to include his or her residential address in Australia.

32    The appellant was not in immigration detention. For the purposes of s 347(1)(a) of the Act, form M1 was the approved form by which an application for review could be made by a person not in immigration detention. That is what both forms M1 and M2 stated emphatically on their face. It follows that the form M2 that Ms Payne prepared for him was not capable of being used by the appellant, as a person not in immigration detention, as an approved form to make an application for review. It was only when the appellant lodged the form M1 later on 20 November 2009 that he made an application for review to the Tribunal. The form M2 had no status for the purposes of enlivening the jurisdiction of the Tribunal to review the decision to cancel the appellant’s visa. The Tribunal was correct to treat that form as its notation, “Incorrect form”, suggested.

33    The Minister’s arguments to the contrary must be rejected. He accepted, correctly, that strict compliance with the conditions imposed by s 347 was necessary even though this may operate harshly in particular cases: Kirk v Minister for Immigration (1998) 87 FCR 99 at 102A-C per Lehane J; Pheng v Minister for Immigration (2000) 102 FCR 283 at 288 [24] per Marshall J. The purpose of s 347(1)(a) requiring an application for review to “be made in the approved form” is so that the Tribunal can identify whether s 348(1) has been engaged. That requires the Tribunal to review an MRT-reviewable decision “if an application for review is properly made under s[..]347”. Given the use of mandatory language in s 347(1)(a), a failure to use the approved form is a failure “properly” to make an application so as to engage the jurisdiction of the Tribunal: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390 [93] per McHugh, Gummow, Kirby and Hayne JJ. They held that the relevant inquiry is whether it was a purpose of the legislation that an act done in breach of the provision should be invalid: see too Pradabsuk v Minister for Immigration (2006) 150 FCR 584 at 594-595 [44]-[46] per French, Stone and Siopis JJ approving Wu v Minister for Immigration (1996) 64 FCR 245 at 278 per RD Nicholson J with whom Jenkinson J agreed, and see too at 261 per Carr J.

34    A failure to use “the approved form”, such as occurred when the applicant lodged form M2, was a failure properly to make an application to the Tribunal within the meaning of ss 347(1)(a) and 348(1). Its jurisdiction was only invoked later on 20 November 2009 when the appellant lodged his form M1.

35    Nor does the use of the definite article “the”, in the expression “the approved form” in s 347(1)(a), authorise an applicant to apply indifferently on either of the present two approved forms, M1 and M2. Each form was made an approved form for the purposes of identifying whether an applicant for review was, or was not, in immigration detention and eliciting information relevant to the Tribunal having regard to whichever was the particular circumstance applicable to him or her. Thus, each of forms M1 and M2 had been approved for different purposes and classes of applicants. Only one, form M1, was approved for an applicant, such as the appellant, who was not in immigration detention. Moreover, Ms Payne’s address that was provided in the form M2 did not constitute the address of the appellant for the purpose of reg 4.10(4)(a).

36    The evidence established, as the trial judge found, that the form M1 was prepared and lodged after the form M2 was completed. Accordingly, the form M1 contained the most up-to-date and relevant written notice of how the appellant wanted documents to be given to him. Section F in form M1 itself explained what would happen if an applicant for review did not nominate an authorised recipient. In such a case, the form stated that correspondence would be sent to the applicant for review.

37    Section F of the appellant’s form M1 was completed in a way that suggested something had gone wrong. He had not ticked the box for correspondence to be sent to him or put an address below it. He had ticked the box for correspondence to be sent to an authorised recipient but, once again, he had not filled in any details of such a person. Critically, he had not ticked the third box for correspondence to be sent to his representative as his authorised recipient.

38    The trial judge’s findings that the appellant clearly gave notice to the Tribunal of the appointment of Ms Payne as his authorised recipient in his form M2 does not accord with his immediately later act of filling out his form M1 inconsistently with such an appointment of her as his authorised recipient. It would have been simple for the appellant to tick the box appointing his representative. But he did not do so on the form M1 that he wanted the Tribunal to act on as his valid application for review. To the contrary, the appellant ticked the box indicating that he wanted another person than his representative to receive his correspondence, but then failed to identify anyone whom he nominated.

39    The Tribunal kept the incomplete form M2 on its file – it being incomplete because section B had been taken out of it and inserted as section E in the appellant’s form M1. Thus, the form M2 in the Tribunal’s file contained section C that had a tick in the box for sending correspondence to his authorised representative, but no longer had a section B identifying Ms Payne as that person for the purposes of that form. Moreover, form M2 told its reader the following in relation to that box:

“□    to another person whom I nominate as my authorised recipient

    (If you tick this box, all correspondence will be sent to your representative as given in Section B and copies will be sent to you at the detention centre.)” (emphasis in brackets added)

40    The Minister observed that both forms M1 and M2 in the respective sections dealing with authorised recipients, stated that “the Tribunal only sends copies of correspondence to applicants who have nominated an authorised recipient where the applicant is in immigration detention”. The Minister argued that this would have dispelled any suggestion in the appellant’s mind that when he completed either form he would receive a copy of correspondence. That was because, the Minister said, the appellant knew he was not in immigration detention.

41    That argument distracts attention from the real issue. The person to whom the Tribunal was required to give notice of the appellant’s invitation to the hearing in accordance with s 360A(2)(a) must be ascertained objectively. The trial judge treated the form M2 held by the Tribunal as if it were complete and concluded that it somehow superseded or supervened the more recently completed form M1. But after section B had been removed from it, no-one was named in the incomplete form M2 as authorised representative. That page had been removed so that it could become section E in the appellant’s form M1. And, at the time that occurred the appellant gave a contrary instruction in his responses to the authorised recipient questions in section F of that later form. It follows that the appellant’s nomination of Ms Payne in his invalid form M2 had ceased to have any effect, if it ever had some effect, at the time he lodged his form M1.

42    The Minister’s alternative argument that the original, complete form M2 when first lodged at the Tribunal, constituted a prospective form of written notice of appointment of Ms Payne as the appellant’s authorised recipient for purposes of s 379G(1)(b) is unsustainable. First, s 379G(1)(a) requires the person to have applied for a review of an MRT-reviewable decision in order that he or she can give written notice of the name and address of an authorised recipient under s 379G(1)(b) “in connection with the review”. Both paragraphs of s 379G(1) can only operate in respect of an application for review that was properly made under ss 347(1) and 348(1) although, as forms M1 and M2 contemplate, the nomination can be given to the Tribunal at the time the application for review is first made. Secondly, by taking section B out of form M2, making it section E of form M1, and ticking the “to another person box” on form M1, the appellant withdrew any authority for Ms Payne to act as authorised recipient that he may have created in the form M2 for the purposes of s 379G(3). Thirdly, it is difficult to understand what status the nomination of a person as authorised recipient would have it if were provided to the Tribunal prior to any application for review being made to it. What would the Tribunal do with such a document? No application for review would than exist and so the prospective nomination could not be put on any file relating to the applicant. Would the Tribunal have a duty to keep such a nomination just in case an application for review were later filed? These considerations also suggest that the Minister’s argument is without substance.

43    Her Honour also erred in applying a standard of proof that an applicant had “plainly and unequivocally” to vary or withdraw a notice under s 379G(1)(b). In Lo 159 FCR at 179 [49] Conti J made a finding of fact in those terms but did not impose this as a standard of proof that replaced the civil standard of proof, on the balance of probabilities, in s 140(1) of the Evidence Act 1995 (Cth). In any event, her Honour erred, for the reasons above, in concluding that the form M2 had any effect before, let alone, once, the completed form M1 was lodged with the Tribunal and instituted the application for review.

Conclusion

44    It follows that by failing to give notice to the appellant of its invitation to a hearing when it only sent the invitation to Ms Payne, the Tribunal committed a jurisdictional error. The trial judge erred in failing so to hold.

45    The appeal must be allowed and the decision of the Tribunal should be quashed. The appellant is entitled to costs of the trial and the appeal.

Associate:

Dated:    13 March 2012

REASONS FOR JUDGMENT

Jessup J

46    This an appeal from a judgment of the Federal Magistrates Court of Australia given on 31 August 2011, in which an application for judicial review of a decision of the second respondent, the Migration Review Tribunal, made on 15 June 2010 was dismissed. By its decision, the Tribunal had affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Citizenship, to cancel the appellant’s Subclass 426 (Domestic Worker (Temporary) – Diplomatic or Consular) Visa under the Migration Act 1958 (Cth) (“the Act”). The only point which arises upon appeal is whether the Federal Magistrate was in error to reject the appellant’s case that he was properly given notice of the day on which, and the time and place at which, he was scheduled to appear before the Tribunal, as required by s 360A(1) of the Act.

47    Having received an unfavourable decision from the delegate, on 20 November 2009 the appellant took steps which were intended to exercise his right to apply for a review by the Tribunal. He consulted Ms Lynette Payne, a Legal Aid solicitor, and instructed her to file his application for review. Acting on those instructions, Ms Payne completed a pro-forma made available by the Tribunal headed “Application for Review to the Migration Review Tribunal (for applicants in immigration detention)”. That form was identified as “M2”, and contained the following sections:

Section A – Details of person(s) applying for review – Review applicant(s).

Section B – Appointment of representative.

Section C – Where do you want us to send correspondence about your application?

Section D – Decision to be reviewed.

Section E – Request to appear before the Tribunal.

Section F – Review applicant declaration.

The form was completed uncontroversially, and contained all of the information that would have been required for a valid application for review. As indicated above, however, the form was intended for use by an applicant who was in immigration detention. The appellant was not in detention. I shall return to that complication below.

48    Section C of the M2 form is of some significance for present purposes. It occupied a full page on the form. It opened as follows:

You may choose to have all correspondence sent to yourself or you may nominate a person known as an authorised recipient to receive correspondence on your behalf in connection with the review.

If you nominate an authorised recipient, the Tribunal will send all correspondence to your authorised recipient. The Tribunal only sends copies of correspondence to applicants who have nominated an authorised recipient where the applicant is in immigration detention.

If you do not nominate an authorised recipient, all correspondence on your case will be sent to you.

Beneath that advice, section C proceeded as follows:

Please send all correspondence in connection with this review: (tick one box only)

    to my representative whom I nominate as my authorised recipient

    (If you tick this box, all correspondence will be sent to your representative as given in Section B and copies will be sent to you at the detention centre).

OR

    to another person whom I nominate as my authorised recipient

    (If you tick this box, all correspondence will be sent to the person whose details you provide below and copies will be sent to you at the detention centre).

….

OR

    to me at the detention centre

    (If you tick this box, all correspondence will be sent only to you at the detention centre).

Under the second of these alternatives in section C, there was provision for an appellant who had ticked the second box to set out the name, address and other details of the person nominated as his or her authorised recipient.

49    In the form as completed by Ms Payne and the appellant on 20 November 2009, the first of these boxes was ticked. That is to say, the appellant indicated that all the correspondence should be sent to his “representative”. In section B of the form, Ms Payne had clearly identified herself as the appellant’s nominated representative.

50    Ms Payne wrote a letter to the Tribunal, operating both as a covering letter for the appellant’s application for review and as a request for the application fee to be waived, given the appellant’s financial circumstances, which were explained in some detail. Ms Payne gave that letter, and the completed M2 form, to the appellant. He took them to the office of the Tribunal, and lodged them. What happened next was not the subject of any satisfactory evidence before the Federal Magistrate. The appellant’s evidence, to which I shall refer presently, was rejected by her Honour. Ms Payne was not herself involved in the events which became controversial. The most reliable primary evidence consisted of some documents which were on the file of the Tribunal, and it is from those documents that the Federal Magistrate drew various inferences.

51    Those documents included the M2 form which had been lodged by the appellant, but subject to alteration by a person whose identity was not disclosed, and as to whom the Federal Magistrate drew no inference. The form had been stamped with the date stamp (20 November 2009) of the Tribunal, had been endorsed (by hand) “Incorrect Form”, and had had Section B removed.

52    The documents included also a Tribunal pro forma which was headed “Application for Review to the Migration Review Tribunal (for applicants not in immigration detention)”. That form was identified as “M1”, and contained the following sections:

Section A     Details of person(s) applying for review – review applicant(s).

Section B    Details of the corporate body applying for review.

Section C     Your capacity to apply for review.

Section D     Details of visa applicant(s).

Section E     Appointment of representative.

Section F     Where do you want us to send correspondence about your application?

Section G     Decision to be reviewed.

Section H     Review applicant declaration.

Save to the extent indicated below, this form too was completed uncontroversially in the name of the appellant. It was signed in the appropriate place by him, and it was common ground, both before the Federal Magistrate and on appeal, that this was done on 20 November 2009, ie on the same day as that upon which he attended at the Tribunal in order to lodge the M2 form. However, the form had not been completed by Ms Payne, and she was able to give no useful evidence about the circumstances of its completion.

53    As it appeared in evidence, Section E of the M1 form had been completed with the same details as Ms Payne had inserted in Section B of the M2 form. However, Section E was not signed by Ms Payne (as it could not have been, since she had no part in the preparation of the M1 form). Clipped in some way to the back of the page of the form which set out Section E was Section B of the M2 form (which, it will be recalled, had been removed from that form). The letter “E” had been written, by hand, over the letter “B” at the head of this page.

54    Section F of the M1 form corresponded to Section C of the M2 form. However, in this case, no part of Section C of the original M2 form had been attached to, or reproduced in, the M1 Form. On a printed pro forma, the opening passages of Section F in the M1 form were the same as those in the corresponding part of the M2 form, as set out in para 48 above. However, the remaining parts of Section F differed slightly, and were as follows:

Please send all correspondence in connection with this review: (tick one box only)

    to my representative whom I nominate as my authorised recipient

    (If you tick this box, all correspondence will be sent to your representative as given in Section E).

OR

    to another person whom I nominate as my authorised recipient

    (If you tick this box, all correspondence will be sent only to the person whose details you provide below).

….

    to me at my address

    (If you tick this box, all correspondence will be sent only to the address you provide below).

….

In the M1 form as it appeared in the evidence before the Federal Magistrate, the second box – marked “to another person whom I nominate as my authorised recipient” – had been ticked. However, the boxes in the printed form below that line, in which the person completing the form would state the name and address of the person to whom all correspondence would subsequently be sent, had been left blank. The only mark on Section F of the M1 form was in the second box as described above. The position was, therefore, that the person completing this form, and the appellant by signing it, had not nominated his representative (Ms Payne) as his authorised recipient, but had purported to nominate another person, the identity and relevant details of whom were not given.

55    The appellant gave evidence before the Federal Magistrate that the M1 form was lodged because, a “month or two” after he lodged the M2 form, a friend pointed out to him that it was not the correct form, and he (the appellant) acted to correct this mistake. The Magistrate rejected that evidence, holding that the M1 form had been lodged on the same day as the M2 form. That holding was not challenged on appeal, but the appellant’s evidence as given presumably rendered moot any cross-examination of him as to what actually happened on 20 November 2009 when, as her Honour found, he lodged the M1 form.

56    It was common ground before the Federal Magistrate, and it is common ground on appeal, that the M1 form signed by the appellant on 20 November 2009 was a valid application for review of the decision of the delegate. What was and is problematic, however, is whether the Tribunal complied with the requirements of the Act as to the means by which notification was, in the circumstances, required to be given to the appellant of the hearing which it conducted. The Tribunal sent written notification of the hearing to Ms Payne, and she received it in the normal course. As found by the Federal Magistrate, Ms Payne sent a copy of the Tribunal’s notification to the appellant at his residential address known to her. Some weeks later (but before the date fixed by the Tribunal for its hearing) it seems that Ms Payne spoke to the appellant by telephone. He told her that he had not received her letter. It was common ground that, save by means of that letter (and possibly also by means of something said by Ms Payne to the appellant on the telephone, as to which the Magistrate made no finding), the appellant had not received any notification of the hearing before the Tribunal.

57    The appellant’s case was that, in the circumstances outlined above, he had not been properly notified of the Tribunal hearing, and that the decision of the Tribunal, which was adverse to him and made in his absence, amounted to a breach of the rules of natural justice, and was not otherwise authorised by the Act. In order to understand the strength of this case, it is necessary to turn to the relevant provisions of the Act.

58    Division 5 of Part V of the Act sets out the statutory requirements for reviews conducted by the Tribunal. By s 360A(1), the Tribunal was obliged to invite the appellant to appear before it, to give evidence and to present arguments relating to the issues arising in relation to the decision under review. Subsections (1) and (2) of s 360A are as follows:

(1)    If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.

(2)    The notice must be given to the applicant:

(a)    except where paragraph (b) applies—by one of the methods specified in section 379A; or

(b)    if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

Since the appellant was not in immigration detention, it was para (a) of subs (2) which applied in his case. That takes one to s 379A, which sets out the methods by which the Tribunal is to give documents to persons other than the Secretary of the relevant department. The only provision which is presently relevant is subs (4), which provides as follows:

(4)    Another method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, 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 Tribunal by the recipient in connection with the review; or

(ii)    the last residential or business address provided to the Tribunal by the recipient in connection with the review; or

(iii)    if the recipient is a minor—the last address for a carer of the minor that is known by the member, Registrar, Deputy Registrar or other officer.

59    It is clear that the invitation extended to the appellant by the Tribunal in the present case was not sent directly to him as provided for in s 379A(4) of the Act. It is here that s 379G becomes relevant, and it provides as follows:

(1)    If:

(a)    a person (the applicant) applies for review of an MRT-reviewable decision; and

(b)    the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review;

the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.

Note:    If the Tribunal gives a person a document by a method specified in section 379A, the person is taken to have received the document at the time specified in section 379C in respect of that method.

(2)    If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.

(3)    The applicant may vary or withdraw the notice under paragraph (1)(b) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the applicant’s authorised recipient.

(4)    The Tribunal may communicate with the applicant by means other than giving a document to the applicant, provided the Tribunal gives the authorised recipient notice of the communication.

(5)    This section does not apply to the Tribunal giving documents to, or communicating with, the applicant when the applicant is appearing before the Tribunal.

60    It seems clear that, when the Tribunal dispatched its invitation to the appellant to appear, and addressed that invitation to Ms Payne rather than to the appellant himself, it was attempting to invoke the procedure for which s 379G provides. In the submission of the appellant, however, the provisions of s 379G were not invoked on the facts of the present case. This submission is put three ways. First, it is said that because the M2 form was the incorrect one for an applicant not in detention, no valid notice had been given under s 379G when that form was lodged. Secondly, it is said that, because the M2 was not the correct form, the application for review itself was not validly lodged as required by s 347 of the Act, and the appellant was not, therefore, a person who “applies for review” within the meaning of s 347(1). And thirdly, it is said that, if a valid notice under s 379G was given, that notice was varied or withdrawn by the applicant when he signed the M1 form and ticked a box in Section F other than that which was appropriate to nominate Ms Payne, his authorised representative in other respects.

61    The Federal Magistrate rejected the first and third of these points. As to the first, her Honour said:

In my view, by Form M2 the applicant clearly gave the Tribunal written notice of the name and address of an authorised recipient, being Ms Payne even though Form M2 was not the correct form for an applicant who was not in immigration detention. Section 379G does not require that notice of nomination of an authorised recipient has to be given in any particular way or on an authorised recipient has to be given in any particular way or on an approved form (see s.495 of the Act, and reg,1.18 of the Migration Regulations 1994 (Cth)). All that is required is that written notice of the details specified in s.379G(1)(b) be given by an applicant who applies for review of an MRT-reviewable decision. I am satisfied that the applicant gave such notice by lodging with the MRT the completed Form M2 which was in writing and included the name and address of Ms Payne, and in which the applicant also asked Ms Payne to do all things on his behalf, including receiving documents in connection with the review (that is, the review of the delegate’s decision to cancel his Subclass 426 visa).

As to the third, her Honour said:

I am not satisfied that an incomplete nomination as an authorised recipient of an unspecified “another person” whose name and contact details were not provided could be said to “plainly and unequivocally” overtake and supersede the nomination in Form M2 of Ms Payne as the applicant’s authorised recipient in the sense considered in Lo at [49]. It was ineffective to vary or withdraw the notice. Section 379G(3) was not satisfied.

Her Honour did not deal with the second point, as it had not, it seems, been part of the appellant’s case before her. It was raised for the first time on appeal.

62    There is a deal of overlap between the appellant’s first and second points. Each asserts the invalidity, or ineffectiveness, of the M2 form as an application for review. It is convenient, therefore, to commence with a consideration of the question whether the lodgement of the M2 form did or, assuming that that was the only relevant event which occurred on 20 November 2009, could, constitute an application for review under the Act. Section 347(1)(a) requires that an application for review “must … be made in the approved form”. And “approved form” is “a form approved by the Minister in writing” for the purposes of the provision in which the term is used. The Minister had delegated the power to approve, and that power had been duly exercised such that both the M1 form and the M2 form were approved for the purposes of s 347.

63    It was submitted on behalf of the Minister that, because both forms had been so approved, both answered the description in s 347(1)(a) and either could, therefore, be used by any otherwise qualified applicant, whether or not he or she was in detention. I would not accept that submission. The Minister’s (and therefore the delegate’s) power to approve could be exercised subject to limitations or conditions. The intent of the M2 form was that it should be used only in the case of an applicant for review who was in immigration detention. Assuming, as we must, that that part of the heading of the form was present at the point of approval, the conclusion is inevitable that the form was approved only for the limited purposes indicated. The result, in my opinion, was that the M2 form was not an approved form in the case of the appellant, and that, by lodging it, he did not comply with s  347(1)(a).

64    It does not, however, follow that the appellant’s first point must be accepted. I accept the submission made on behalf of the Minister that there is no requirement under the Act for a notice under s 379G(1) to be included in, or given as part of, an application for review, whether valid or invalid. Indeed, there appears to be no formal requirement for such a notice at all. The fact that the M2 form was not compliant with s 347 considered as an application for review would not, therefore, stand in the way of Section C of that form constituting an effective notice under s 379G.

65    That brings me to the appellant’s second point. It is said that, even if a s 379G notice could be given as part of a form that was not itself a valid application for review, unless there was or, at the relevant time, had been, such a valid application, the person ostensibly giving the notice is not someone who “applies for review” within the meaning of s 379G(1)(a), and cannot, therefore, avail himself or herself of the procedure for which that subsection provides. I would commence my consideration of this point by saying that the present case is not an appropriate occasion to consider the abstract question whether a person who never made an application for review, or who made one only after the passage of a substantial period of time, could validly give a notice of the kind for which s 379G provides. That is because of the rather special facts associated with the lodgement of the M2 form and the M1 form by the appellant on 20 November 2009. Those facts, and the way they were dealt with in the appellant’s evidentiary case below, have some significance for the remedy which he seeks, based as it otherwise is upon a certain view of the operation of s 379G.

66    The proceeding before the Federal Magistrate was for a constitutional writ pursuant to s 75(v) of the Constitution as made applicable by s 476(1) of the Act. The appellant sought certiorari, mandamus and prohibition, but the essence of his case was that he was denied natural justice by not having been given an opportunity to be heard before the Tribunal, in relation to which the provisions of Div 5 of Pt 5 of the Act, in which ss 360 and 360A are to be found, constitute an exhaustive statement: s 357A. The appellant’s case must have been that the Tribunal lacked jurisdiction to proceed unless ss 360 and 360A had been complied with, in which case prohibition would have been appropriate, or that, by proceeding without complying with those sections, the Tribunal had left unperformed its statutory task, in which case mandamus would have been appropriate.

67    In either case, it lay upon the appellant to establish clearly the facts which would have warranted the remedy which he sought. “The burden of establishing clearly the facts which show absence of jurisdiction always rests upon a prosecutor seeking a writ of prohibition …” (R v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138, 153) and, in my view, the position is no different where mandamus is sought. Often, in migration cases, this burden of proof is theoretical rather than real because the factual basis of an applicant’s complaint appears clearly enough from departmental records, or from the reasons of the Tribunal or a like body. However, the present was not such a case.

68    The Tribunal had extended to the appellant the invitation required by s 359A of the Act, and the appellant, through his Legal Aid solicitor, filed a response of substance. The notice which the Tribunal dispatched to Ms Payne, purportedly under s 360A of the Act, invited the appellant to appear before the Tribunal on 12 May 2010. There was no response to that invitation. In its decision, the Tribunal noted that, on 10 May 2010, an officer of the Tribunal had contacted Ms Payne, who said that she had not been able to contact the appellant, and was not sure whether he would be able to attend the hearing. On 12 May 2010, about 30 minutes before the scheduled commencing time for the hearing, Ms Payne telephoned the Tribunal and informed it that it was her belief that in all likelihood the appellant would not be attending the hearing. The Tribunal proceeded without a hearing, noting in its decision of 15 June 2010 that the appellant had “failed to attend the scheduled hearing and no reason was provided for his non-attendance”.

69    The Tribunal’s decision itself does, therefore, provide no evidence from which a failure to comply with s 360A might be inferred. The appellant’s case had to be established by primary evidence called in the Federal Magistrates Court. The documents which were on the Tribunal’s file, and the copy documents which had been retained by Ms Payne, were tendered. To the extent presently relevant, they consisted of the M1 and M2 forms to which I have referred. A good deal could be inferred from them, particularly when placed with her Honour’s rejection of the appellant’s evidence as to the time at which, and the circumstances under which, the M1 form came to be completed and lodged. But there remained a question – which has now become significant – about the detail and timing of those events.

70    It was the appellant’s case on appeal that what happened at the Tribunal on 20 November 2009 followed a particular sequence. The first event was the lodgement of the M2 form, containing as it did the appellant’s purported notice under s 379G. The second event was that someone noticed that the M2 form was the incorrect one, and so endorsed it. The third event was the appellant signing, and lodging, the M1 form. The difficulty with this series of propositions is that it takes the matter further than is warranted by the reasons of the Federal Magistrate.

71    As to what actually happened on 20 November 2009, her Honour said:

It can be inferred that on 20 November 2009 the applicant, or someone on his behalf, delivered to the Tribunal the completed Form M2 signed by Ms Payne and by the applicant, that this form was stamped “received” with a Tribunal stamp dated 20 November 2009 and the words “by hand” were written on it. It can also be inferred that the words “Incorrect Form” were written on the form because the applicant was not in detention and Form M2 is designed for use by an applicant in detention.

It appears that it must have been discovered (presumably by the Tribunal) that the applicant was not in detention. A Form M1 was partially completed by someone and page six of the lodged Form M2 was inserted into that form. The applicant signed the Form M1 lodged with the Tribunal on 20 November 2009. The rest of Form M2 was retained on the Tribunal file (albeit marked “incorrect form”).

In these tentative findings by her Honour, there is no justification for placing the events in a neat sequence, in line astern as it were, as proposed on behalf of the appellant before the Full Court.

72    Her Honour noted that “it must have been discovered (presumably by the Tribunal) that the [appellant] was not in detention”. This was not a finding by her Honour, and, as a supposition, it encounters the immediate, and obvious, difficulty that, if the applicant had lodged the M2 form with a member of the staff of the Tribunal – over the counter, as it were – it would have been conspicuously apparent that he was not in detention. Had that indeed been the course of events, the very real prospect that, instead of accepting the M2 form for lodgement, the staff member got out the correct form, filled it in as best he or she could (making the obvious error which appears in Section F), inserted the page from the M2 form nominating Ms Payne as representative, and had the appellant sign it, cannot be excluded. The M2 form might well have been received and filed so that a true documentary record of the course of events remained with the Tribunal; or, indeed, for the very reason that it contained a notice under s 379G. The M2 form might well have been endorsed “Incorrect Form” after these events occurred, so as properly to identify it in the records of the Tribunal.

73    I accept that there is nothing in the findings of the Federal Magistrate that points to this particular course of events. But neither is there anything that excludes it. The fact that the M1 form was obtained, signed and lodged by the applicant on the same day as he attended at the Tribunal for the purpose of lodging the M2 form is at least consistent with the kind of contemporaneity of events that I have laid out in the previous paragraph. As a matter of common experience, it may be expected that, had the M2 form initially been received by the staff of the Tribunal without demur, the appellant would then have left the premises and gone his own way. How he might then, on the same day, have been summoned back to the Tribunal to sign another form is not immediately apparent (in which context I note that the M2 form did not set out a mobile telephone number for the appellant).

74    There may have been an explanation of the circumstances surrounding the lodging and treatment of the two forms by the appellant on 20 November 2009 which is perfectly consistent with the case which he now seeks to run. It may well be that the two forms were lodged in a clear sequence, such that it may now be submitted on the appellant’s behalf that, when he gave notice under s 379G, he was not a “person [who] … applies for review” within the meaning of subs (1) of that section. The difficulty for the appellant, however, is that he was the one who could have given the evidence which would have justified a finding along these lines. He did not do so. Rather, he gave wholly untruthful evidence about the circumstances in which the M1 form came to be completed. He is, in my opinion, in no position to ask the court to reach a conclusion about the events of 20 November 2009 which, out of a range of possible conclusions that are consistent with the findings of the Federal Magistrate and with the contents of the M1 and M2 forms, are those most favourable to the case that he now wants to advance on appeal.

75    It was at least implicit in the findings below that, at the time the appellant lodged the M2 form, he was “a person [who] … applies for review” within the meaning of s 379G(1) of the Act, and thus capable of giving a valid notice under that provision. For reasons explained above, I consider that the appellant’s evidentiary case before the Federal Magistrate was insufficient to sustain an appellate challenge to that conclusion. I take the view that the present appeal must be determined on the basis that the appellant was such a person.

76    I agree with the Federal Magistrate, therefore, that, at the time the appellant lodged his M1 form with the Tribunal, he had given a valid notice under s 379G(1) of the Act.

77    The appellant’s third point relied upon a particular view of the act constituted by his lodging the M1 form on 20 November 2009. What was effectively the same page as had been completed in favour of Ms Payne in the M2 form was completed by ticking a box that was appropriate for the nomination of an identified third party, but no-one was identified. That part of the page was left blank in favour of another unidentified person in the M1 form. It was said on behalf of the appellant that this could only be viewed as a withdrawal or variation by him of his original nomination. The two nominations were manifestly inconsistent, and the latter had to be viewed as a variation or withdrawal under s 379G(3) of the Act. It was said that the M1 form should be viewed as one in which no representative at all had been nominated, in which event, consistently with the advice on the form itself, all correspondence should have been sent to the appellant himself.

78    I would not accept that argument. One may put to one side the advice provided on the M1 form that, if an authorised recipient were not nominated, all correspondence would be sent to the appellant himself. The present question is a legal one, which must be determined under s 379G of the Act. Either the appellant had varied or withdrawn his regular notice under that section, or he had not. Section F on the M1 form, as completed, was ineffective to do anything. The box for the nomination of a third party had been ticked, but no third party had been identified. Not only was that ineffective to nominate a person other than Ms Payne, it was ineffective to do anything at all. It was, in my opinion, neither a variation nor a withdrawal in the way contemplated by s 379G(3) of the Act.

79    Some submissions were made as to the inferences that might be drawn, from the documentary indications, of what the appellant intended to do when he signed the M1 form, or of how the Tribunal ought reasonably to have read his intentions in that respect. In my view, questions of that kind do not arise. The question is not whether an administrative officer in the employ of the Tribunal might reasonably have supposed that the appellant did, or did not, intend to withdraw his earlier nomination of Ms Payne. The question relates only to the legal effect of the documents which he signed.

80    In sum, I agree with the Federal Magistrate with respect to each of the aspects of the appellant’s case. I am of the view that her Honour’s decision was the correct one, and should not be disturbed.

Associate:

Dated:    13 March 2012