FEDERAL COURT OF AUSTRALIA

Chen v Minister for Immigration and Border Protection

[2013] FCAFC 133

THE COURT ORDERS THAT:

1.    The appellants be granted leave to file the amended notice of appeal dated 23 October 2013 which is attached to their outline of submissions filed 23 October 2013.

2.    The appeal be allowed.

3.    The orders made by the primary judge on 24 July 2013 be set aside and, in their place, the following orders be made:

(a)    A writ of certiorari issue quashing the Minister’s decision dated 21 December 2012 that the appellants’ application dated 10 December 2012 for a Business Skills (Residence) (Class DF) sub-class 892 (State/Territory Sponsored Business Owner) visa (the appellants’ visa application) was not valid.

(b)    A writ of mandamus issue requiring the Minister to consider the appellants’ visa application according to law.

4.    The respondent pay the appellants’ costs of the proceeding below and of the appeal.

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

REASONS FOR JUDGMENT

1        The central question in this appeal is whether the making of an application for a particular type of visa by sending the application to a GPO Box in Adelaide nominated by the Minister’s Department as one of the places to which such applications must be sent satisfies a legislative requirement that an application be made “at an office of Immigration in Australia”.

Background facts

2        The relevant facts are not in dispute. Drawing primarily on the primary judge’s reasons for judgment, those facts may be summarised as follows.

3        Ms Chen was the holder of a subclass 163 visa (which was a subclass of a Business Skills (Provisional) (Class UR) visa). Her visa was due to expire on 18 December 2012.

4        Ms Chen wished to apply for a new subclass 892 State/Territory Sponsored Business Owner visa (which was a subclass of a Business Skills (Residence) (Class DF) visa).

5        Pursuant to item 1104B(3)(f) of Sch 1 of the Migration Regulations 1994 (the Regulations), it was a requirement for an applicant seeking to satisfy the primary criteria for a subclass 892 visa that he or she hold a Business Skills (Provisional) (Class UR) visa. The effect of this requirement for Ms Chen, given that her subclass 163 visa was due to expire on 18 December 2012, was that she was required to make her application for a subclass 892 visa by 18 December 2012.

6        According to information provided by the Department in its Business Skills Entry information booklet, an application for a subclass 892 visa had to be made either by post to the Adelaide Onshore Business Skills Processing Centre at GPO Box 2399 Adelaide SA 5001 or by courier to the Centre’s Adelaide street address.

7        The Department leased GPO Box 2399 at the Adelaide City Delivery Centre, Ground Floor, 26 Franklin Street, Adelaide South Australia (ACDC).

8        The Department contracted with a company called Converga for the provision of mail and distribution services for the Adelaide Onshore Business Skills Processing Centre. Converga in turn contracted with Capital Transport to collect mail from Australia Post and deliver it to the Department’s Processing Centre.

9        Capital Transport usually collected the mail from the ACDC and delivered it to the Department’s Processing Centre at around 8.00 am each working day. Once the mail had been delivered to the Processing Centre a record was made of incoming postal items. The items were then delivered to various sections of the Processing Centre between approximately 10.30 am and 11.00 am on the day the mail was delivered.

10        At approximately 5.50 pm on 17 December 2012, an employee of Ms Chen’s migration agent placed an Express Post bag in an Express Post box outside the Chatswood Post Office in Chatswood New South Wales.

11        The Express Post bag was addressed to the Adelaide Onshore Business Skills Processing Centre at GPO Box 2399 Adelaide SA 5001.

12        The Express Post bag contained a letter from Ms Chen’s migration agent and completed application forms and related documents for a subclass 892 visa in respect of Ms Chen and her husband and child as members of her family unit.

13        The Express Post bag containing Ms Chen’s application arrived at the ACDC some time prior to 10.57 am on 18 December 2012.

14        By the time the Express Post bag containing Ms Chen’s application arrived at the ACDC, Capital Transport had completed its collection of mail that day.

15        The Express Post bag was collected by Capital Transport and delivered to the Department’s Processing Centre on 19 December 2012. By then Ms Chen’s subclass 163 visa had expired.

Relevant legislative provisions as at 19 December 2012

16        Section 46 of the Migration Act 1958 (Cth) (the Act) contained the following provisions relating to what amounts to a valid visa application.

46.    Valid visa application

(1)    Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:

    …

(b)    it satisfies the criteria and requirements prescribed under this section; and

…

(3)    The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.

(4)    Without limiting subsection (3), the regulations may also prescribe:

    …

(c)    where an application for a visa of a specified class must be made;

…

17        If a valid visa application had been made, s 47(1) of the Act required the Minister to consider it. If a valid visa application had not been made, s 47(3) required the Minister not to consider it.

18        Regulation 2.07(1)(c) of the Regulations relevantly provided:

Application for visa – general

(1)    For the purposes of sections 45 and 46 of the Act (dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1:

…

    (c)    other matters relating to the application.

19        Some “other matters” relating to the appellants’ visa application were contained in items 1104B(3)(a) and (f) of Sch 1 to the Regulations, which provided:

Business Skills (Residence) (Class DF)

…

(3)    Other:

(a)    Application must be made in Australia, but not in immigration clearance.

…

(f)    For an applicant seeking to satisfy the primary criteria for the grant of a Subclass 892 (State/Territory Sponsored Business Owner) visa, applicant must hold a visa of a subclass included in Business Skills (Provisional) (Class UR), granted on the basis that the applicant, or the spouse or de facto partner of the applicant (if any) or the former spouse or former de facto partner of the applicant, satisfied the primary criteria for the grant of the visa.

20        Further to item 1104B(3)(a) of the Regulations, reg 2.10 prescribed some of the matters referred to in s 46 of the Act. Relevantly, reg 2.10 provided (emphasis in text added):

2.10    Where application must be made

(1)    For section 46 of the Act, an application for a visa (not being an Internet application) must be made in accordance with this regulation.

…

(2A)    If an application for a visa is made in Australia, the application must be made:

(a)    in accordance with any requirements in:

        (i)    this Division; or

        (ii)    the item in Schedule 1 that relates to the visa;

        about where to make the application; or

(b)    if there are no requirements of that kind — at an office of Immigration in Australia.

Note 1   Schedule 1 explains whether applications for particular visas may be made in Australia, outside Australia, or in or outside Australia.

Note 2   A provision in this Division or in Schedule 1 may also state that an application is taken to have been made at a particular place if specified requirements are met.

…

(4)    For Division 2.2 (not including regulation 2.09) and Schedule 1, an office occupied by an officer of Immigration at an airport or a detention centre is an office of Immigration.

Note   Requirements about where the applicant must be when making an Internet application are in Schedule 1.

21        Two points should immediately be made about reg 2.10. First, it has no application to an internet application (see reg 1.03). Secondly, it is to be noted that the requirement imposed by reg 2.10(2A)(b) that an application be made at an office of Immigration in Australia is, in effect, a default provision which is enlivened only where no other requirements are stipulated in the Regulations about where to make a particular visa application.

22        There is and was no definition in either the Act or the Regulations of what constitutes “an office of Immigration in Australia. “Immigration” is and was defined in reg 1.03 as meaning “the Department of Immigration and Multicultural and Indigenous Affairs”. Section 19B of the Acts Interpretation Act 1901 (Cth) deals with the situation where a Department of State of the Commonwealth is referred to in an Act and the Department is later abolished or has a change of name. It empowers the Governor-General to make an order under s 19B(2) to substitute a new name of the Department.

23        For completeness, it might also be noted that:

(a)    other parts of the Regulations contemplated the possibility of a Gazette Notice specifying an office of Immigration in Australia at which an application for a visa can be made. For example, reg 2.09 contained such a reference in the context of the making of an oral application for a visa of a class in respect of which such an oral application could be made; and

(b)    the Regulations also expressly required applications for certain types of visa (such as Child (Residence) (Class BT) visas (item 1108A of Sch 1) and Partner (Migrant) (Class BC) visas (item 1129 of Sch 1) to be made, inter alia, by posting the application to a post office box address or other address specified by the Minister in an instrument in writing.

24        The relevance of these matters will be considered below.

Decision of Federal Circuit Court

25        The primary judge accepted the Minister’s contention that Ms Chen’s application was not valid because it was not received within time in circumstances where an application could only validly be made “at an office of Immigration in Australia” and the GPO Box was not such an office, or part of such an office. The primary judge described the central matter as turning on the proper construction of reg 2.10(2A)(b). His Honour concluded that the appellants’ reliance on Nair v Minister for Immigration (2001) 107 FCR 60 was misplaced because that decision was “immediately distinguishable”. He also found that, contrary to the appellants’ submission, Pomare v Minister for Immigration and Citizenship (2008) 167 FCR 494 did not assist their case and, if anything, tended to assist the Minister.

26        The primary judge described the Full Court’s decision in Minister for Immigration and Multicultural Affairs v Li [2000] FCA 1456 as providing “far greater assistance to the current circumstances”. That case related to reg 2.10(1)(b) (which provided at the time that “[a]n application for a visa must be made:… (b) in the case of an application to be made in Australia… at any office of Immigration in Australia”), which the primary judge regarded as being relevantly identical to reg 2.10(2A)(b). The Minister relied on the following passages in Li at [72] and [73], emphasising the reference to “administrative efficiency”:

Regulation 2.10(1)(b) is plainly drafted on the assumption that an application for a visa is to be considered by the Minister, at least in the first instance. It proceeds on the basis that the prescribed form should not only set out the claims made by the applicant, but should be made at an office of Immigration. There are obvious reasons of administrative efficiency underlying the requirement that the application be made at an office of Immigration and not elsewhere. Among its other advantages, the requirement facilitates consideration of the application by the Minister, or his or her delegate. The requirement is consistent with the legislative insistence on completion of a prescribed application form, even to the point of conditioning the exercise of the Minister's powers on lodgement of a completed form.

Regulation 2.10(1)(b), objectively viewed, prescribes the way in which an application for a visa is to be made, namely at an office of Immigration. The regulation applies in specified circumstances, namely where an application is to be made in Australia. It is therefore a regulation that prescribes the way for making an application in specified circumstances within the meaning of s 45(2)(a) of the Migration Act. If an application does not comply with reg 2.10(1)(b), the consequence is that the purported application is invalid: s 46(1)(b).

27        The primary judge agreed with the Minister’s contention that to conclude that a post office box is “an office of Immigration in Australia” would involve a strained application of the plain wording of the meaning of “office” and did not sit comfortably with the Full Court’s description in Li as to the “administrative logic” underlying reg 2.10(1)(b) (see the extracts in [26] above).

28        The primary judge rejected the appellants’ argument that “uncertainty” was created by the fact that the Department’s booklet described the postal method of delivery to a post office box as one of only two methods nominated by the Department for making an application for a Business Skills Entry visa. He did so on the following two grounds:

(a)    any practical uncertainty was irrelevant because there was no uncertainty or ambiguity in the terms of reg 2.10(2A)(b); and

(b)    any practical uncertainty was created by the decision of the appellants’ migration agent’s to send the application by post rather than to use another available option, such as sending the application by courier, which would have provided a more direct method of making the application at an office of Immigration in Australia. The primary judge accepted the Minister’s reliance on statements made by Allsop J (as his Honour then was) in Zhan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 469 at [56] to the effect that the legislative regime placed the risk of postal delays on applicants. The primary judge added at [39] and [40] that the Department’s booklet provided sufficient information to enable an applicant to make a timely application and that, having made an election to use a particular method, an applicant assumed the risk of that particular option.

29        Finally, the primary judge rejected what his Honour described as the appellants’ “suggestion” (perhaps more accurately characterised as a submission) made during the hearing that the GPO Box formed part of an Immigration office. His Honour said that there was no evidence before the Court to indicate that this was so and that the GPO Box remained physically and, in the context of the relevant part of the regulations, separate from the Immigration office. In further support of that conclusion, the primary judge referred in [42] to the fact that the Regulations expressly permitted applications for certain types of visas to be made by post to a GPO Box, which his Honour contrasted with the requirement imposed by reg 2.10(2A)(b) that the particular visa application be made at an office of Immigration in Australia.

A procedural issue

30        The appellants sought leave to rely upon an amended notice of appeal which raises the following three grounds of appeal:

(1)    the primary judge erred by holding that the appellants did not make a valid application at an “office of Immigration”, within the meaning of reg 2.10(2A)(b), when their visa application form was received at the Department’s GPO Box on 18 December 2012;

(2)    the primary judge should have held that the GPO Box was “an office of Immigration” or a part of “an office of Immigration” such that the appellants complied with reg 2.10(2A)(b) when their visa application form was received at the GPO Box on 18 December 2012; and

(3)    in the alternative to ground 2, the primary judge should have held that the requirement in reg 2.10(2A)(b) to make a visa application at “an office of Immigration” could be satisfied by substantial compliance, and that the appellants substantially complied with that requirement when their visa application form was received at the nominated GPO Box on 18 December 2012.

31        The appellants require leave to raise the third ground of appeal, which was not argued below. The Minister opposed leave being given. We will deal with that matter below.

Was the application made at an office of Immigration?

32        It is convenient to deal with the first and second grounds of appeal together.

33        The Minister defends the primary judge’s finding that the visa application was not made when it reached the GPO Box on 18 December 2012 on the following broad grounds.

34        First, he submits that the GPO Box was neither an “office of Immigration” nor part of an “office of Immigration”, merely a means by which the application could reach the office. While accepting that the expression has to be given its ordinary meaning, the Minister says that a post office box does not satisfy the Macquarie Dictionary definition of “office”, because the reference therein to a “room or place” denotes a physical space which one or more persons occupy while transacting business or discharging duties and which space is maintained for that purpose. The Minister argues that there are sound textual reasons for reading “office” in reg 2.10 as referring to a room or other space which is occupied by departmental officers while attending to their duties and as not extending to a post office box. Those textual reasons are said to be:

(a)    the terms of reg 2.10(4) which indicate that the drafter understood an “office” to be a place capable of being occupied by an officer;

(b)    for certain other classes or subclasses of visa the Regulations expressly provide that an application can be “made” by posting it to a specified post office box address.

35        Secondly, the Minister submits there was no evidence below to indicate that the Department’s Adelaide GPO Box was part of an “office of Immigration” in Australia in circumstances where it was physically separate from any such office and remained separate in the context of the Regulations.

36        Thirdly, the Minister says that Ryan J’s judgment in Cabal v Minister for Immigration and Multicultural Affairs (No 2) (1999) 91 FCR 314 (“Cabal”) at [23] does not assist the appellants. The Minister contends that his Honour’s remarks in that case, which were directed to an application being forwarded in a way calculated to reach an office of Immigration, may be taken to have reached that place at the time when, in the ordinary course, it would have done so say nothing about what places do or do not in fact answer the description “office of Immigration”.

37        Fourthly, the Minister disputes that the Department’s booklet had the effect of designating the GPO Box either as, or as part of, an “office of Immigration” for the purposes of reg 2.10(2A)(b). That is because whether a place is an “office of Immigration” is a question of fact and does not depend upon any designation via a booklet. In any event, the Minister says that the booklet did not in its terms achieve such a designation. The booklet simply told prospective applicants to send their applications to the Adelaide Onshore Business Skills Processing Centre and set out how items sent by mail or courier should be addressed in order to reach that office. It should be noted, however, that in oral argument Mr Kennett SC (who appeared with Mr Smith for the Minister) acknowledged that the booklet’s requirement that applications had to be sent by mail to the nominated GPO Box (as an alternative to the only other option of sending the application by courier to the nominated street address) was wrong and that the booklet should be revised. This acknowledgment did not deter the Minister from defending the appeal.

38        Finally, the Minister says that the primary judge’s reliance on Li and Pomare was correct.

39        The parties are agreed that, in the absence of a definition of “an office of Immigration”, the words are to be given their ordinary English meaning in the particular legislative context. They are also agreed that the question whether the nominated GPO Box was an “office of Immigration” or a part thereof is a question of fact. Further, senior counsel for the Minister acknowledged in oral argument that that question involved a jurisdictional fact.

40        The appellants drew attention to the relevant definition of “office” in the Macquarie Dictionary, which is “a room or place for the transaction of business, the discharge of professional duties, or the like”. Reference might also be made to The New Shorter Oxford English Dictionary, which relevantly defines “office” as:

a room or building or other place for business; a room or department for clerical administrative work;… a room or department for a particular business (freq. of a specified kind); a local centre of a large business or organisation;… c the building or set of rooms or other place in which the business of a specified department of government administration is carried on; the staff of such a department, esp. the responsible head and senior officials; the collective power or responsibility of the staff of such a department. (Emphasis added.)

41        In our view, on the facts of this case, the GPO Box leased by the Department for the purpose of receiving applications for particular visas was a “place for the transaction of business” or, alternatively, a “place for business” or a place in which the Department’s business is carried on. The GPO Box is leased by the Department for the purpose of receiving particular written visa applications. The Department has arrangements in place for such applications to be collected from the GPO Box and delivered to the Department’s Processing Centre, at which place the applications are processed by Departmental officers. Although the Department’s website records that the relevant visa application may also be made by various other methods (such as by courier, facsimile or online), it may also be made by posting the written application to the nominated GPO Box. We accept the appellants’ submission that, even if the GPO Box is not a standalone office for the purpose of reg 2.10(2A)(b), it is, at least, a part of the Department’s office. Accordingly, it is part of “an office of Immigration” and an application received in the GPO Box is an application made at an office of Immigration.

42        We do not accept the Minister’s submissions to the contrary. In particular, we do not accept that there was no satisfactory evidence that the GPO Box had some stable physical existence as a “place”. Evidence was given below by the manager of ACDC concerning Australia Post’s Express Post service and how Australia Post receives, sorts and delivers Express Post items. Australia Post guarantees next-business day delivery over specified routes within the Express Post network to all Express Post envelopes that are correctly lodged on a business day by the published lodgement time. The manager, Geoffrey Jordan, gave evidence that the Department leased GPO Box 2399 in Adelaide from Australia Post and that all items which arrive at the ACDC are scanned on arrival, then transferred to the relevant area and sorted to wherever they need to go, including to post office boxes. He further deposed that Express Post items are given an expedited service for delivery to the ACDC but that once they have arrived at the ACDC they are treated as ordinary mail and delivered as such. Such items are scanned on arrival at the ACDC and the information is transmitted to a computer database. Mr Jordan also gave evidence that, according to the scan sheet for the appellants’ Express Post article, it arrived at the ACDC at 10:57 am on 18 December 2012. He said that in “the normal course this article would have been delivered to the post office box shortly after it was scanned”. Mr Jordan said that, once an article had been placed in the post office box, Australia Post no longer has “control” over it. Mr Jordan was not cross-examined.

43        In oral argument, the Minister criticised Mr Jordan’s use of the term “control”. It is not clear whether an appropriate objection was taken below. In any event, it is sufficient if that term is understood to mean that, once a postal item had been placed in the Department’s GPO Box, it was available for collection by or on behalf of the Department. The Minister did not dispute the evidence to this effect.

44        Evidence was also given below by Margaret Smith, an employee of the company called Converga, who deposed that Converga had a contract with the Department for the provision of mail and distribution services to it in Adelaide. She said that Converga used a subcontractor, Capital Transport, to collect mail from the ACDC and deliver it to the Department on a daily basis. She said that Capital Transport usually delivered the mail to the mail room of the Department’s Adelaide premises at around 8.00 am each working day. She said that, upon the mail being delivered, a Converga staff member signs for the mail, and each item is then weighed and sorted into the categories of Express Post, registered post and general mail. Each item is then opened by a Converga staff member. Ms Smith also gave evidence of information being recorded by Converga on spreadsheets relating to mail items handled by Converga on behalf of the Department. She said that after the relevant spreadsheets were completed, Converga staff then delivered all mail items to the various sections of the Department’s Processing Centre between approximately 10.30 am and 11.00 am on the day that the mail was received. The spreadsheets annexed to Ms Smith’s affidavits showed that the appellants’ visa application form arrived at the Department’s Processing Centre on 19 December 2012.

45        In our view, this evidence is sufficient to rebut the Minister’s contention that there was no satisfactory evidence establishing that the Department’s GPO Box had some stable physical existence as a “place”. It was a place capable of being leased to which mail was able to be physically delivered and from which it was able to be collected.

46        But the evidence below did not stop there. It also included various written statements made by the Department which described the GPO Box in a manner which strongly indicate that the Department itself regarded the GPO Box as being, at least, a part of the office of Immigration in Adelaide. So much is apparent, for example, from the booklet published by the Department concerning (amongst other things) the relevant visa. The booklet included the following statements:

If you are applying in Australia

All applications for Business Skills (Residence) visas must be made in Australia. If you are applying in Australia for a Business Talent visa, please lodge your application at Perth Business Skills Processing Centre (details on the previous page). If you are applying in Australia for a Business Skills (Residence) visa, you must send your application to the Adelaide Onshore Business Skills processing Centre.

By mail:

Adelaide Onshore Business Skills Processing Centre

Department of Immigration and Citizenship

GPO Box 2399

ADELAIDE SA 5001

By courier

Adelaide Onshore Business Skills Processing Centre

Department of Immigration and Citizenship

Level 3

55 Currie Street

ADELAIDE SA 5000

If you have any enquiries

Website:    www.immi.gov.au/skilled/

E-mail:        business.skills.adelaide@immi.gov.au

Telephone:    131 881 (a local call in Australia)

Fax:        (08) 7421 7612

47        There was unchallenged evidence below that the appellants’ migration agent was aware of both the booklet and the relevant contents of the Department’s website, which contained the following information relating to subclass 892 visas:

If the visa is not approved

The department will advise you (or your authorised recipient) in writing of the reasons for that decision and if the decision is reviewable by the Migration Review Tribunal.

Visa processing times

The processing times apply to applications lodged with complete documentation.

Processing times for Business Skills visas vary depending on ‘high risk’ or ‘low risk’ country requirements. Low risk countries are Electronic Travel Authority (ETA) eligible. High risk countries are those not on the ETA list.

See:

www.eta.immi.gov.au

Business Skills Visa Processing Times

How and where to lodge

All applications should be lodged at the Adelaide Business Skills Processing Centre. This can be done by:

·    post

·    courier

·    in person

·    fax.

See:    Adelaide Business Skills Processing Centre

1.    About this Visa

2.    How this Visa Works

3.    Eligibility

4.    Obligations

5.    Applying for this Visa.

48        There was further evidence below which indicated that the Department used its GPO Box as part of its office. The appellants’ migration agent received a letter dated 21 December 2012 advising him that the Department did not regard the appellants’ visa application as valid. At the foot of each page of that letter, the addresses of the Adelaide Processing Centre are given as “Level 3 55 Currie Street Adelaide SA 5000” and “GPO Box 2399 Adelaide SA 5001”. That was an indication that the Department regarded the GPO Box to be a place, or at least part of a place, in which the Department carried out some of its public administrative duties, namely, one of the places where it received documents relating to the exercise of those duties, including, importantly, applications for visas. That is not to say that the Department had designated the PO Box to be an office of Immigration. Rather, it is evidence supporting a finding of fact that the PO Box was an office, or at least part of an office, of Immigration.

49        More generally, we find the Minister’s argument that the GPO Box does not form part of “an office of Immigration” to be unattractive in the present circumstances. Its acceptance would mean that visa applicants who lodged their applications in accordance with the instructions given by the Department in its own publications were at risk of having their applications considered to be invalid notwithstanding that those applications were physically placed in the Department’s GPO Box before the related visa had expired. The unattractiveness of the Minister’s argument is further highlighted by the fact that, because of the Department’s internal arrangements, visa applicants who used Australia Post’s Express Post service to post their applications to the nominated GPO Box would effectively be denied at least two-thirds of one day in which to make their applications. That is because the GPO Box was cleared around 8.00 am each working day, meaning that any item placed in the Department’s GPO Box after that time would not be collected by the Department’s sub-contractor until 8.00 am the next working day. The Department took no steps to warn visa applicants of these anomalies.

50        We do not accept the Minister’s submission that the reference in the dictionary definitions to “room or place” denotes a space physically occupied by a person or persons occupy while transacting business or discharging duties. In our view, a place can form part of an office in which business is transacted or carried out notwithstanding that persons do not physically occupy it. Such places include, for example, areas in an office which accommodate technical equipment necessary for the efficient transaction of business in the office, such as telecommunications rooms. In our view, post office boxes and post boxes which are held out by the Department as being associated with the administrative business being conducted by the Department – whether or not physically located on the office premises or property – are generally to be regarded as forming part of the departmental office with which they are associated. Thus, in our view, a GPO Box leased by the Department and held out by it as a place to which postal items could or must be sent is as much a part of the Department’s office as a post box which is physically provided at or within the Department’s premises (the post box might be located, for example, immediately outside the premises, via a slot in the door of the premises or in the foyer of the building leased or otherwise occupied by the Department).

51        Nor do we accept the Minister’s further contention that there are sound textual reasons for reading “office” in reg 2.10 as referring to a room or other space occupied by departmental officers while attending to their duties and not extending to include a GPO Box. In our view, the Minister overstates the significance of the fact that reg 2.10(4) makes express reference to “an office occupied by an officer of Immigration” in the context of establishing that particular areas of an airport or detention centre are included in the concept of “office of Immigration” for the purposes of most parts of Division 2.2. We regard this provision as a deeming provision the purpose of which is to remove doubt that might otherwise arise as to which particular parts of an airport or detention centre constitute an “office of Immigration” for relevant legislative purposes. The draftsperson saw fit to describe those areas not only by reference to the wider places of which they form part (i.e. airports or detention centres), but also by reference to a requirement that the areas be occupied by an officer of Immigration. That is understandable in circumstances where airports and (perhaps to a lesser extent) detention centres serve functions which are unrelated to immigration. We do not consider that reg 2.10(4) has the effect of injecting into the ordinary meaning of the expression “office of Immigration” in reg 2.10(2A)(b) a requirement that the place be occupied by an officer of Immigration.

52        We also reject the Minister’s submission (as supported by the primary judge’s finding at [42]), that, in respect of several classes or subclasses of visa, the Regulations displace the general terms of reg 2.10(2)(b) by providing that an application may be made by posting it to a specified post office box. For example, as noted above, item 1108A in Sch 1 to the Regulations, which deals with Child (Residence) (Class BT) visas, provides in sub-item 1108A(3)(da) that:

An application must be made:

(i)    by posting the application (with the correct pre-paid postage) to the post office box address or other address specified by the Minister in an instrument in writing for this subparagraph; or

(ii)    by having the application delivered by a courier service to the address specified by the Minister in an instrument in writing for this subparagraph; or

(iii)    if no address has been specified for subparagraphs (i) and (ii) – by lodging the application at an office of Immigration.

53        Relying on the primary judge’s reasoning, the Minister submits that provisions in these terms would be unlikely to be made if the relevant post office box was, or formed part of, an “office of Immigration” within the meaning of reg 2.10(2A)(b). That submission should not be accepted. As the appellants point out, such provisions should not be regarded as extending the ordinary meaning of the expression “office of Immigration” by including within that expression a post office box address, but rather as empowering the Minister to specify by an instrument in writing that only a particular post office box address can be used. In other words, such provisions enable the Minister to specify that instead of posting applications to any departmental post office box address, they can only be sent to a particular post office box address located, for example, in one city alone. This construction is supported by the fact that the Minister’s power can be exercised not only in respect of posting an application to a post office box address but also to any other address. Furthermore, the Minister’s power extends to specifying a particular address to which an application can be delivered by a courier service. The provision enables the Minister to narrow the offices of Immigration at which particular visa applications may be made.

54        The appellants rely on Macrae v St Margaret’s Hospital (1999) 19 NSWCCR 1. In that case the issue was whether an employee had made a claim for workers compensation as required by s 106E(1)(a) of the Workers Compensation Act 1987 (NSW). Under s 92A(3)(b) of that Act a claim for compensation was served on a person if it was “delivered or sent by post to the residence or any place of business of the person”. The Compensation Court held that the claim for compensation had not been duly made because the post office box was not the respondent’s registered office. Meagher JA held that posting a claim for workers compensation to a post box which the respondent employer’s letterhead specified as an address to which all correspondence should be sent was service of the claim at the respondent’s place of business because the post office box was part of the respondent’s place of business. Davies AJA (with whom Priestley JA agreed) held otherwise. In our view Macrae is of no assistance as it is concerned with a different statutory regime.

55        The appellants also rely on certain dicta of Ryan J in Cabal. In Cabal his Honour said at [23]:

In my view, whether an application has been made at an office of Immigration is a question of fact. For that question to be answered in the affirmative, it is not necessary for the application to be physically deposited or left by or on behalf of the applicant in an area designated as an office of Immigration or an area at an airport or detention centre occupied by an officer of Immigration. It is sufficient if the application is forwarded in a way calculated to reach an area answering one of those descriptions and come to the notice of an officer of Immigration. In the absence of evidence to the contrary, it is to be taken to have been “made” at a place specified in reg 2.10 when in the ordinary course, for example of post, or facsimile transmission, it would have reached that place. (Emphasis added).

56        The Minister draws attention to the following additional remarks at [24]:

In the present case, whether or not the place where Mr Mirenda received the documents was an office occupied by him at Melbourne Airport, I am satisfied that at the time when, or shortly after, he received them and acknowledged his receipt by the indorsement given to Mr Rodan, the documents found their way to an office answering the description in reg 2.10(4). Accordingly, the application was “made” at that office of Immigration on 28 December 1998.

57        The Minister says that Ryan J was focussing on the issue that, absent evidence to the contrary, a visa application forwarded in a way which is calculated to reach an office of Immigration may be taken to have reached that place at a time when, in the ordinary course, it would have done so. The Minister submits that this says nothing about the separate question as to what places do or do not meet the description of “office of Immigration”.

58        In our view, Ryan J’s dicta in Cabal do not assist the determination of the central issue which arises in this appeal as to whether a visa application sent to a GPO Box nominated by the Minister is an application made “at an office of Immigration in Australia” for the purposes of reg 2.10(2A)(b).

59        Nor, in our view, is the resolution of the central issue in this case materially assisted by the decisions in either Li or Pomare. As to Li, it was made clear in [78] that that case did not raise for determination the precise circumstances in which information can be said to be provided to an office of Immigration. Pomare, like Macrae, dealt with a different legislative regime.

60        For completeness, we should also state that nothing we have said is intended to derogate from Allsop J’s observations in Zhan concerning the risk of postal delays which, under the migration legislative regime, is borne by applicants. There was no postal delay here. True it is, the application was sent very late but it was received at the GPO Box at a time when Ms Chen was still a visa holder.

61        Finally, there is the Minister’s separate submission that, while accepting that the question whether a particular place is an “office of Immigration” is a question of fact, it is significant that there is no provision in the Regulations for a place to become an “office of Immigration” by the Minister or some other officer “designating” it as such. The contention is made in the context of the appellants’ argument that the Department’s booklet and/or website had the effect of “designating” the GPO Box as, or at least as part of, an “office of Immigration” for the purposes of reg 2.10(2A)(b). We accept the Minister’s submission that there was no provision to that effect. It is true that reg 2.09 provided that, in the context of the making of an oral application for a visa of a class in respect of which such an oral application could be made, a Gazette Notice could specify an office of Immigration in Australia at which such an application can be made. But that provision did not have any application to the circumstances here because a written application had to be made.

62        More significantly, however, we do not understand the appellants’ reference in its submissions to the Department having “designated” the GPO Box as its office (or part of its office) for the purposes of reg 2.10(2A)(b) as involving the exercise of a legal power of designation. Rather, we understand the appellants’ submission is to the effect that the specification of the PO Box in the relevant booklet and the Department’s letter constitutes evidence which supports their primary contention that, as a matter of fact, the GPO Box is at least part of the Department’s office for the purpose of receiving postal applications. For reasons given above, we accept that submission.

The question of substantial compliance

63        In view of our conclusions on the first two grounds of appeal it is not strictly necessary to deal with this question. We will nonetheless indicate our views.

64        The appellants submit that the requirement in reg 2.10(2A)(b) can be satisfied by substantial compliance. They say they substantially complied with the requirement to make an application at an office of Immigration when the application form reached the Department’s GPO Box. In support of that contention, they rely on cases such as Tasker v Fullwood [1978] 1 NSWLR 20 and Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245. They submit that they did all they could do to comply with reg 2.10(2A)(b) by sending their application by post in accordance with the Department’s advice and to the specified post office box identified in the Department’s booklet. They say further that the mandatory language in reg 2.10(1) and (2A) does not preclude the operation of the substantial compliance doctrine, for which they rely on what Sheppard J said in Hamilton v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 349 at 361D.

65        The Minister opposed the appellants being granted leave to rely on this ground, relying on the following observations of the Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 (as discussed recently by Jessup J in MZYPO v Minister for Immigration and Citizenship [2013] FCAFC 1 at [101]):

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

66        The Minister says that the appellants have failed to offer any explanation for their failure to raise the proposed third ground of appeal below and, further, that proposed ground does not have reasonable prospects of success given that it is not possible to only substantially comply with a requirement that a visa application be made at an “office of Immigration” in Australia.

67        In circumstances where the Minister does not raise any prejudice, the new point is one of law only and where, in our opinion, it is reasonably arguable, we would grant leave to the appellants to rely on this ground. For the following reasons, however, we do not accept the appellants’ argument that their application was validly made at an office of Immigration because they substantially complied with the relevant requirements.

68        In our view, this is a case where the substantial compliance doctrine does not apply. The question whether an act that fails to comply with a condition regulating the exercise of a statutory power is invalid and of no effect is one of construction, as established by decisions such as Scurr v Brisbane City Council (1973) 133 CLR 242 at 256 per Stephen J; Hunter Resources Ltd v Melville (1988) 164 CLR 234 at 249 per Dawson J (which comments were approved by the High Court in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [92]); Jayasekara v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 156 FCR 199 at [12] and Chase Oyster Bar Pty Ltd v Hamo Industries (2010) 272 ALR 750 at [37]-[39] per Spigelman CJ. The test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision (or an act which failed to comply with the provision) should be invalid, having regard in particular to the language of the relevant provision and the scope and object of the whole statute: Project Blue Sky at [93].

69        In the particular legislative context here, it is notable that (subject to certain exceptions which are not presently relevant), s 46(1) of the Act provides that an application for a visa is valid if and only if it satisfies the criteria and requirements prescribed under that provision. One of those prescribed requirements is that made in reg 2.10(2A)(b) to the effect that, if there are no other requirements specified in the Regulations about where to make a visa application, the application must be made at an office of Immigration in Australia. That language is unequivocal. The relevant requirements have a mandatory import. In an analogous context (jurisdictional fact, which also involves an exercise of statutory construction), Spigelman CJ emphasised in Chase Oyster at [40] the importance of the relevant legislative language and whether the language is expressed in mandatory or imperative terms. That is clearly the case here.

70        The language used in reg 2.10(2A)(b) does not provide any scope for the concept of substantial compliance. Like the statutory requirement in Hunter Resources which was to mark out mining tenements by pegs at intervals not exceeding 300 metres, and the requirement in Jayasekara that the applicant’s academic result be certified by the education provider, the requirement that an application be made at an office of Immigration is either satisfied or it is not. It is difficult to see how an applicant can substantially comply with a requirement expressed in such terms. If an application is made at some place other than an office of Immigration, the requirement is not satisfied.

71        Another relevant consideration identified by Spigelman CJ at [42] in Chase Oyster is the structure of the legislative scheme which provides the context for the task of statutory construction. In our view, an important aspect of the legislative scheme here relates to the point in time in the decision-making process at which the issue of whether or not a valid application has been made arises. The issue arises when the Minister (or his or her delegate) needs to determine for the purposes of s 47 of the Act whether there is an obligation or prohibition on considering a purported visa application. That question turns on whether a valid visa application has been made which, in turn, relevantly depends on whether the application satisfies criteria and requirements prescribed under s 46(3) of the Act. As noted above, such criteria include matters such as whether the visa applicant holds another visa at the time an application is made for a particular visa. Item 1104B(3)(f) of the Regulations contains such a requirement. There needs to be certainty, therefore, as to when a valid application for a visa has been made because that provides the reference point for assessing whether the applicant holds a visa of another description in order to satisfy the primary criteria for the grant of the particular visa which is sought. The requirement for certainty as to when an application is made in turn demands certainty in relation to where the application is made. In our view that is another compelling indication that the legislative purpose was that an application that is not made at an office of Immigration is invalid where reg 2.10(2A)(b) applies, even if there was, or could be, substantial compliance with that requirement. If allowance was made for substantial compliance with reg 2.10(2A)(b), considerable practical uncertainty could be generated as to when an application had been made.

Conclusion

72        For these reasons, we grant leave to the appellants to file and rely on the amended notice of appeal. We reject ground 3 in the amended notice of appeal, but uphold grounds 1 and 2. The appeal should be allowed and the orders made below set aside. Appropriate orders should be made granting the appellants’ relief in the form of orders of certiorari and mandamus. The Minister should be ordered to pay the appellants’ costs of both the appeal and below. Orders will be made accordingly.

Associate:

Dated:    20 November 2013