FEDERAL COURT OF AUSTRALIA

MZZDJ v Minister for Immigration and Border Protection [2013] FCAFC 156

THE COURT DECLARES THAT:

1.    The appellant was notified of the decision to refuse to grant him a protection visa, in accordance with ss 66(1), 494B(5), 494D(1) and 494D(3) of the Migration Act 1958 (Cth), on 30 July 2012, and the Refugee Review Tribunal has jurisdiction in the application for review made by the appellant on 14 August 2012.

THE COURT ORDERS THAT:

2.    Leave is granted for the title of the first respondent in the Notice of Appeal dated 12 July 2013 to be amended from Minister for Immigration and Citizenship to Minister for Immigration and Border Protection.

3.    The appeal is allowed.

4.    The orders of the Federal Circuit Court made on 28 June 2013 are set aside and, in lieu thereof, there be an order in the nature of certiorari to quash the decision of the Refugee Review Tribunal made on 11 October 2012.

5.    The first respondent is to pay the appellant’s costs of the appeal, and of the proceeding in the Federal Circuit Court.

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

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

REASONS FOR JUDGMENT

The Court

Introduction AND SUMMARY

1    This appeal concerns a short but important question about the operation of s 494D(3) of the Migration Act 1958 (Cth) (the Act). For the reasons which follow, we find that the appellant’s migration agent varied (on behalf of the appellant) the written notice which had been given under s 494D(1) of the Act in respect of the address to which the Minister was required to give documents the Minister would otherwise have given to the appellant.

2    That variation was effective to alter the manner in which the Minister’s delegate was required to notify the appellant’s migration agent of the decision to refuse to grant the appellant a protection visa and to render ineffective the first purported notification under s 66(1) by the Minister’s delegate. Accordingly, the effective notification for the purposes of ss 66(1) and 494B and 494D(1) of the Act was the one given by the Minister’s delegate on 30 July 2012.

3    The appellant’s application to the Refugee Review Tribunal made on 14 August 2012 was therefore within the 28-day time limit imposed by s 412(1) of the Act, read with reg 4.31(2)(b) of the Migration Regulations 1994 (Cth) (the Regulations), and the Tribunal has jurisdiction to conduct the review.

BACKGROUND

4    The appellant is a citizen of Pakistan who arrived in Australia on 20 May 2011, travelling on a subclass 572 student visa. He is 22 years old. On 7 February 2012, he lodged an application for a protection visa with the then Department of Immigration and Citizenship. He claimed to be entitled to protection on the basis of his religion (Shi’a Muslim), a political opinion imputed to him (as a member of the Awami National Party), and also because he was a member of a particular social group for the purposes of the Refugees Convention. The social group was identified as a party member of Indian background. With his protection visa application, the appellant lodged what is known as a “Form 956” specifying Ms Pantelitsa Pavlou as his migration agent and the person to whom all correspondence from the Department should be sent.

5    The Minister’s delegate for the purposes of the determination of the appellant’s protection visa application was Mr James Watson. The appellant and Ms Pavlou attended a scheduled interview with Mr Watson on 2 May 2012. At the conclusion of the interview, there was a conversation between Ms Pavlou and Mr Watson, which is central to the issues in this proceeding and which we deal with at [50] to [57] below. The substance of it was that Ms Pavlou told Mr Watson she was going overseas and asked him to send his decision by email to her, which Mr Watson agreed to do. Unfortunately, Mr Watson forgot he had agreed to do this and when he made his decision refusing to grant a protection visa to the appellant he sent it by registered post to Ms Pavlou’s business address. Since she was overseas, it did not come to her attention until the appellant made inquiries himself of the Department, some time later and after the fixed 28-day time limit for applications for review to the Tribunal had passed.

6    When Ms Pavlou contacted Mr Watson, he apologised for his mistake and re-sent the decision and necessary accompanying notifications required by the Act to her by email, on 30 July 2012. The appellant applied to the Tribunal for review on 14 August 2012, with the assistance of a new migration agent/solicitor, Ms Joey Tran of Sabelberg Morcos Lawyers.

7    The Tribunal found it did not have jurisdiction to conduct the review, on the basis that the appellant was notified on 14 June 2012 in accordance with s 66 of the Act and by one of the means set out in s 494B of the Act. It found that, although Ms Pavlou made a verbal request that the decision be sent by email, the address for correspondence given by the appellant’s then authorised recipient in respect of his application for a protection visa (at Question 5 of Form 956, signed by Ms Pavlou and the appellant on 3 February 2012) was the authorised recipient’s postal address. In the absence of any evidence to indicate that this authority had ceased or been rescinded, the Tribunal found that the verbal request to send the notification via email did not cause this to happen and that the postal address remained the address notified for receiving documents. The Tribunal noted that the delegate’s error in sending the notification by a different means from that agreed verbally with the authorised recipient at interview had no effect on the validity of the notification itself as the appellant was notified by one of the means specific in s 494B. The Tribunal noted also that there is no capacity in the legislation for an applicant to nominate a preferred means of notification for s 66(1) and s 494B. The Tribunal found that it had no discretion to consider the delegate’s subsequent purported notification by email, as the appellant had already been notified in accordance with s 66(1).

8    By reason of the operation of s 494C(4) of the Act, the Tribunal found the appellant was deemed to have received notification of the decision seven days later. That meant, the Tribunal concluded, his application for review was out of time and there were no provisions under the Act to extend time.

9    The appellant applied for review of the Tribunal’s decision in the Federal Circuit Court. On 28 June 2013, the primary judge dismissed the application for review. Her Honour’s reasons focus on the notion of withdrawal in s 494D(3). The relevant parts of her Honour’s reasons are as follows:

Ms Pavlou did request of the Delegate, Mr Watson, and on 2 May 2012 that his notification decision be sent to her at her email address. She did not, however, withdraw her postal address as an address for service either in writing or orally. Accordingly, it was open for the Delegate to give her his decision by means of the method in s. 494B(4) of the Act and that was by posting it to her address for correspondence. The fact that the Delegate could have emailed her the decision pursuant to s.494B(5) of the Act did not mean that he could not, instead, make use of the method in s.494B(4) of the Act.

As the Tribunal’s decision concerns the existence of a condition precedent to its jurisdiction, it is open to re-examination before this Court. The Minister, accordingly, filed evidence not before the Tribunal concerning the conversation between the Delegate and Ms Pavlou on 2 May 2012 and the posting of the Delegate’s decision within three days of its date as required by s.494B(4)(a) of the Act. That evidence confirms that Ms Pavlou did not withdraw her postal address for receiving correspondence and that the Delegate’s decision was sent to her in accordance with s.494B(4) of the Act.

10    On an appeal by way of rehearing, this Court is able to, and in an appropriate case must, make findings of fact for itself, if satisfied there was error (whether of fact or law or both) on the part of the primary judge: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [14]-[32] per Allsop J. The present is not an appeal of the kind discussed in Optical 88 Ltd v Optical 88 Pty Ltd (2011) 197 FCR 67 at [25]-[34], where there may be a tension between the function and advantages of a primary judge and the function of the Full Court on appeal, especially in relation to fact-finding. The evidence adduced before the primary judge in this proceeding did not call for judgments of degree and impression, nor determinations about the credibility of witnesses. As we explain below, despite Ms Pavlou not appearing for cross-examination before the Federal Circuit Court, there are no inconsistencies in the evidence before the primary judge which cause any difficulty for our fact-finding on the appeal.

11    The primary judge’s reasoning, and fact-finding, appear to have been based on the concept of a withdrawal of a written notice under s 494D(3). The present circumstances are not correctly characterised as concerning a withdrawal, nor is there any warrant in the terms of s 494D(3) to view the concept of a withdrawal and the concept of a variation as interchangeable. They operate quite differently.

12    We are satisfied that, both in terms of the construction of s 494D(3) and its application to the evidence before the Court, the learned primary judge erred. It is appropriate for this Court to make the necessary findings of fact, based on the correct approach to the scope and operation of s 494D(3), and to reach its own conclusion about whether there was a variation of the written notice for the purposes of s 494D(3).

RELEVANT PROVISIONS OF THE MIGRATION ACT

13    At primary decision-making level, the Act makes detailed provision for four relevant matters: the method by which the Minister or the Minister’s delegate must notify a visa applicant of a primary decision under s 65 of the Act, the manner in which applicants are to be given documents by the Minister, to whom documents are to be given if the person is represented by what the Act describes as an “authorised recipient” and, thirdly, when a person is deemed to have received a document given in accordance with the provisions of the Act.

14    Section 66(1) provides that when the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way. Relevantly, reg 2.16 of the Regulations provides that, for the purposes of s 66(1), the Minister must notify an applicant by one of the methods specified in s 494B of the Act.

15    Section 494B sets out the manner in which applicants are to be given documents by the Minister. It provides:

494B Methods by which Minister gives documents to a person

    Coverage of section

(1)    For the purposes of provisions of this Act or the regulations that:

    (a)    require or permit the Minister to give a document to a person (the recipient); and

    (b)    state that the Minister must do so by one of the methods specified in this section;

the methods are as follows.

(1A)    If a person is a minor, the Minister may use the methods mentioned in subsections (4) and (5) to dispatch or transmit, as the case may be, a document to an individual (a carer of the minor):

    (a)    who is at least 18 years of age; and

    (b)    who the Minister reasonably believes:

(i)    has day-to-day care and responsibility for the minor; or

(ii)    works in or for an organisation that has day-to-day care and responsibility for the minor and whose duties, whether alone or jointly with another person, involve care and responsibility for the minor.

Note:    If the Minister gives an individual a document by the method mentioned in subsection (4) or (5), the individual is taken to have received the document at the time specified in section 494C in respect of that method.

(1B)    However, subsection (1A) does not apply if subsection 52(3C) (which relates to giving notifications in the case of combined applications) applies in relation to the minor.

Giving by hand

(2)    One method consists of the Minister (including by way of an authorised officer) handing the document to the recipient.

    Handing to a person at last residential or business address

(3)    Another method consists of the Minister (including by way of an authorised officer) handing the document to another person who:

    (a)    is at the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; and

    (b)    appears to live there (in the case of a residential address) or work there (in the case of a business address); and

    (c)    appears to be at least 16 years of age.

Dispatch by prepaid post or by other prepaid means

(4)    Another method consists of the Minister dating the document, and then dispatching it:

    (a)    within 3 working days (in the place of dispatch) of the date of the document; and

    (b)    by prepaid post or by other prepaid means; and

    (c)    to:

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

    (ii)    the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; or

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

Transmission by fax, e mail or other electronic means

(5)    Another method consists of the Minister transmitting the document by:

    (a)    fax; or

    (b)    e mail; or

    (c)    other electronic means;

to:

    (d)    the last fax number, e mail address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents; or

    (e)    if the recipient is a minor—the last fax number, e mail address or other electronic address, as the case may be, for a carer of the minor that is known by the Minister.

When the Minister hands a document by way of an authorised officer

(6)    For the purposes of sections 494C and 494D, a reference in those sections to an act of the Minister includes, if the act is of a kind referred to in subsection (2) or (3) of this section, a reference to an act of the Minister by way of an authorised officer.

Documents given to a carer

(7)    If the Minister gives a document to a carer of a minor, the Minister is taken to have given the document to the minor. However, this does not prevent the Minister giving the minor a copy of the document.

16    Section 494D sets out what is to occur if a person is represented by an “authorised recipient”. It provides:

494D Authorised recipient

(1)    If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to do things on behalf of the first person that consist of, or include, receiving documents in connection with matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents that the Minister would otherwise have given to the first person.

Note:    If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.

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

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

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

(5)    The Minister need not comply with subsection (1), or the requirement in subsection (4) to give a notice, if:

    (a)    the authorised recipient is not a registered migration agent (within the meaning of Part 3); and

    (b)    the Minister reasonably suspects that the authorised recipient is giving immigration assistance (within the meaning of that Part); and

    (c)    the Minister has given the first person a notice, by one of the methods specified in section 494B, stating that he or she does not intend to give the authorised recipient documents as mentioned in subsection (1).

17    Section 494C sets out when a person is deemed to have received a document given in accordance with the provisions of the Act. It provides:

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

(1)    This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A).

    Giving by hand

(2)    If the Minister gives a document to a person by the method in subsection 494B(2) (which involves handing the document to the person), the person is taken to have received the document when it is handed to the person.

Handing to a person at last residential or business address

(3)    If the Minister gives a document to a person by the method in subsection 494B(3) (which involves handing the document to another person at a residential or business address), the person is taken to have received the document when it is handed to the other person.

Dispatch by prepaid post or by other prepaid means

(4)    If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:

    (a)    if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or

    (b)    in any other case—21 days after the date of the document.

Transmission by fax, e-mail or other electronic means

(5)    If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, e-mail or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.

(6)    Subsection (5) applies despite section 14 of the Electronic Transactions Act 1999.

Document not given effectively

(7)    If:

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

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

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

18    Four further contextual matters about the scheme of the Act should be noted. Each of these tends against a construction which adversely affects the availability or effectiveness of the merits review scheme established by the Act. First, the subject matter of a primary decision under s 65 in respect of an application for a protection visa, and a review of such a decision, involves the domestic implementation of Australia’s protection obligations under the Refugees Convention and, since 24 March 2012, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights: see Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505. The implications of this decision-making for the individual applicants are potentially significant both as to their safety and wellbeing, as well as their lawful migration status in Australia and their exposure to loss of liberty through detention if lawful status is lost, or never gained. The latter part of that proposition is true of all visa applicants.

19    Second, the Act imposes strict and non-extendable time limits on the lodging of applications for review of protection visa decisions. By s 412(1), any such application must be made not later than 28 days after the notification of the decision. The Act contains no provision authorising the extension of this time limit.

20    Third, there is a prohibition on a person who has been refused a protection visa making a second protection visa application. An applicant who has been refused a protection visa is dependent on the exercise of a personal, non-compellable discretion by the Minister under s 48B of the Act to secure an entitlement to make a second protection visa application.

21    Fourth, the detailed provisions concerning both the obligation to notify applicants of decisions under the Act, and to give them documents, in accordance with the Act, upon which reliance may be placed during a decision-making process, combined with the detailed provisions about how and when notification is to occur, suggest this is a legislative scheme concerned to ensure notifications are effective. That is the operating assumption underlying the detail of the notification provisions. If all participants (not simply those acting on behalf of the Minister) adhere to the scheme established by the notification provisions, then timely notice of decisions or matters being raised during decision-making, and timely responses, can be expected. In that sense, the notification provisions are intended to be effective for this purpose.

22    The next issue is the construction of s 494D(3), especially in terms of its scope and operation.

THE SCOPE AND OPERATION OF Section 494D

23    Section 494D(3) must be read with s 494D(1), to which it refers. By subs (1), an applicant can ensure the Minister communicates with a person the applicant authorises for that purpose. Usually it may be a migration agent, but the provision is not limited in that way. Section 280 of the Act prohibits the giving of “immigration assistance” (as that term is defined in s 276) by any person who is not a registered migration agent. Documents appointing such a person may be required, whether as a matter of law or administrative practice within the Department. Such requirements or practices as might exist in relation to migration agents do not necessarily cover the same field as that occupied by s 494D. There may be a variety of circumstances (language difficulties, minority, literacy, unfamiliarity with the Australian migration and legal system, other vulnerabilities, no access to a postal address or to email) in which an applicant feels it is more reliable to authorise someone other than himself or herself to be the recipient of communications from the Minister. This may, but need not, coincide with the retention of a migration agent.

24    All that s 494D(1) requires is written notice of the name and “address” of the person who is to be the authorised recipient. The provision does not require use of any particular form. By s 495 of the Act the Minister is given a discretionary power to approve forms, but that power is expressly limited to other provisions of the Act where the term “approved form” is used. Section 494D(1) is not such a provision.

25    There was in this case a form used by the appellant and Ms Pavlou, which was in evidence. It appears to be a standard form used for administrative convenience and consistency of practice, which are in themselves desirable objectives. However, it does not appear to have any statutory role so far as s 494D is concerned.

26    The level of formality required (or not required) by s 494D is not without significance. The absence of strict prescriptions about form underlines the facultative nature of this provision: it is intended to give applicants a readily accessible means of ensuring communication in relation to their visa applications is undertaken in the most effective manner if they do not wish, for whatever reason, to be entirely responsible for receiving communications and taking necessary action.

27    A question arises as to what is meant in subs (1) by the word “address”. Contrary to the submission of the Minister, the meaning of the word is important. It is one of only two specific content requirements for a written notice under subs (1). In turn, it is this written notice which, under subs (3), may be withdrawn or varied. Determining what is meant by “address” thus informs not only the potential content of a notice under subs (1) but also what may be varied under subs (3).

28    There is no definition in the Act of “address”. It is used in various places in the Act. Of immediate relevance is its use in s 494B, which sets out the methods by which the Minister may “give” documents to a person for the purposes of the Act. This provision applies to the current circumstances because of the effect of s 66 of the Act (the notification obligation connection with a visa refusal pursuant to s 65), read with reg 2.16 of the Regulations.

29    In s 494B, a number of adjectives are used with the noun “address”: “residential”, “business”, “electronic” and “e-mail”. The word “e-mail” is also used as a noun in s 494B: see s 494B(5)(b). However its use as an adjective, together with the other adjectival terms used, makes it clear that the noun “address” is not to be read as limited to a postal or street address. That is to be expected in a statute dealing with notification of critical decisions where electronic communication is now an established and regular part of personal and business communications. Indeed, the authorisation of communication by electronic means was introduced in 2001, by the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 (Cth), which introduced the relevant parts of s 494B, amongst others.

30    Accordingly, in our opinion the meaning to be given to the noun “address” in s 494D(1) should be consistent with the way the noun is used in s 494B. The latter provision makes plain that “address” can be an electronic one, and can be an email address. There is no reason in terms of the text, context or purpose of s 494D(1) to construe it as requiring that a name and a street address must be given. The provision permits a visa applicant to nominate a person by name and email address, or other electronic address, as much as it authorises a visa applicant to nominate a name and a street address. Nor should the usual presumption about the singular including the plural (see s 23(b) of the Acts Interpretation Act 1901 (Cth)) be seen as excluded by the words of s 494D(1): the subsection authorises the giving of more than one address for the nominated person but, when read with the use of the definite article in the phrase “the authorised recipient” and with the limits imposed by subs (3) on there being more than one person, does not authorise more than one person to be nominated at any given time.

31    The subject matter of the entitlement to withdraw or vary in subs (3) is the written notice itself. The provision contemplates two quite different kinds of conduct: withdrawal and variation. The former is an absolute act and operates on the entire written notice given under subs (1). It may be either so that a different person can be nominated under subs (1) or so that the notifications can revert to the applicant. Either way, the written notice ceases to have effect.

32    Variation is quite different. The written notice given under subs (1) remains in effect (and, therefore, so does the duty subs (1) imposes on the Minister), but part of the content of the written notice is — as the ordinary meaning of “vary” suggests — altered. That being the case, and given the scope of the noun “address”, we see no reason to read the entitlement to vary narrowly. To do so would not advance the purpose of the provision, which is to facilitate notification of critical decisions, or critical steps in decision-making, to visa applicants.

33    The variation can be permanent or temporary. The Minister correctly conceded there was no warrant to exclude a temporary variation. The present circumstances, contrary to the Minister’s submissions, provide an example of the practical need for temporary variations. These legislative provisions should be construed in a way which advances rather than frustrates a practical and meaningful operation in the circumstances of those to whom the provisions are directed.

34    The variation can be oral. There are textual and contextual reasons for this construction. Textually, the legislative insistence on writing is, as the appellant submitted, absent from subs (3). The omission should be taken to be conscious. Contextually, the provisions should be given a practical operation so that they can achieve their purpose of ensuring there is effective notification to visa applicants. One can imagine circumstances in which a variation was urgently required and a telephone call might be all that is possible.

35    The variation can be made by the authorised person under s 494D(1). This is apparent from the language in subs (1) whereby that person is constituted effectively as the agent of the visa applicant. That is the clear intention of the provision, to be inferred from the use of the phrase “to do things on behalf of the first person”. Thus, the fact that subs (3) refers to the “first person” (ie the visa applicant) as the person entitled to make a variation or withdrawal to the written notice is not to be seen as precluding the authorised person from doing so. Rather, read together, the provision is intended to refer to a situation where the authorised person is acting within the authority given to her or him by the visa applicant, and not outside it.

THE RELEVANT EVIDENCE

36    Evidence of the written notice given for the purposes of s 494D(1) was before the Tribunal, the primary judge and this Court. It consists of a document entitled “Advice by a migration agent/exempt person of providing immigration assistance: Form 956”. As we observe at [24] above, the Act does not require this form, or any form, to be used for the purposes of s 494D. There may well be other provisions in the Act which do impose an obligation on a migration agent to complete such a form but any such obligation (if it exists) is not a material question in this appeal.

37    The form is dated 3 February 2012. It records Ms Pavlou’s name and a “Business or residential address” and an “E-mail address”. There is a question which asks if Ms Pavlou agrees to the Department communicating with her by “e-mail or other electronic means” and the “Yes” box is ticked in answer to this question. The form then records the appellant’s details. At the end of the form is a declaration by the appellant to the following effect: “I declare that I have appointed the migration agent/exempt person named in Part A of this form to provide assistance with matters as indicated on this form”. There is also a declaration by Ms Pavlou stating “I declare that I have been appointed by the client named in Part A of this form as a migration agent/exempt person and that I will act on the client’s behalf as permitted by law”. Question 18 on the form asks “Have you also been appointed as the authorised recipient?” and the “Yes” box is ticked in answer to this. We note that, even without Question 18, the contents of the form to which we have referred would be sufficient to satisfy the requirements of s 494D of the Act.

38    We find that, for the purposes of s 494D(1), on 3 February 2012 the appellant gave the Minister written notice of the name of another person, Ms Pavlou, who was authorised by the appellant “to do things on behalf of [the appellant] that consist of, or include, receiving documents in connection with matters arising under this Act, or the regulations…”. We also find that, for the purposes of s 494D(1), on 3 February 2012 the appellant gave the Minister written notice of two addresses for Ms Pavlou — a business or residential address and an email address.

39    The parties adduced evidence before the Federal Circuit Court, in the form of an affidavit of the appellant, two affidavits from Ms Pavlou and one from the delegate Mr Watson. Both deponents were required for cross-examination but, as the reasons of the primary judge record, Ms Pavlou did not attend. There was also some oral evidence from the appellant’s new migration agent, which is not material to the issues on this appeal. It appears nevertheless that the affidavits were read, and the primary judge found Ms Pavlou’s non-availability for cross-examination affected the weight to be given to her evidence. The primary judge also found that:

[w]here her evidence conflicts with that of Mr Watson I have accepted the evidence of Mr Watson.

40    It is not, however, apparent in the remainder of the primary judge’s reasons where such preferences are necessary, or manifest.

41    The appellant’s submissions focused on three matters said to provide evidence that there had been a variation for the purposes of s 494D(3). They were:

42    First, an email sent on 30 July 2012 by the delegate to the appellant’s then migration agent, which relevantly stated:

Sincerest apologies for my mistake in notifying you of [MZZDJ’s] visa refusal via mail rather than email as requested by you at interview. I have reset that notification timeframe now in our system to give you time to prepare a review for Mr [MZZDJ]. Please see attached the decision record and notification documents for Mr [MZZDJ’s] visa application.

43    Second, a note on the Department’s records system which relevantly stated:

Notification had to be resent as agent was o/s and did not receive the decision in June (agent had requested decision be sent by email at conclusion of PV interview). Agent (Litsa Pavlou) contacted department via email requesting that DIAC send email with decision record so that she could prepare an appeal for the RRT.

44    Third, the evidence of Ms Pavlou and Mr Watson about the content of what Ms Pavlou said to Mr Watson at the end of the appellant’s protection visa interview.

45    Ms Pavlou’s evidence was:

My client was interviewed at the offices DIAC in Melbourne on 2 May, 2012. The interview was conducted by Mr. James Watson, an officer of DIAC. The Applicant and I were present as was an Urdu interpreter.

I recall that at the conclusion of the interview I made an oral request to Mr. Watson to provide me with his decision by e-mail to ‘[###]’ which is my usual business e-mail address. I explained to Mr. Watson that I would be overseas for three months from mid May and that it was more than likely that his decision would be made in that time. I explained to Mr. Watson that I was making the request because I had no means of checking my postal mail while I was overseas. For additional certainty I also asked Mr. Watson to e-mail a copy to the Applicant. Mr. Watson, my client and I then had a final discussion confirming the Applicant’s correct e-mail address.

I expressed that request to Mr. Watson on 2 May, 2012 not as a matter of ‘preferred delivery method’ but rather because I was certain that if his decision was posted to me while I was overseas, I would not receive it until I returned from overseas in August and that clearly would result in the Applicant being unable to lodge an Refugee Review Tribunal application for review in the permitted time. I had forseen [sic] that risk and attempted to do all that was possible to make certain that my client did not lose his right for review of a negative decision.

I had booked my travel on 3 April, 2012 and I was away from Australia from 13 May, 2012 to 6 August, 2012. I was in Europe for personal reasons. While I was overseas I was regularly checking my e-mail at various internet cafes. I would check my e-mail every few days and I was specifically checking for the Applicant’s notification of decision from DIAC. When no e-mail was forthcoming after some months, and after I communicated with the Applicant, the Applicant attended personally at the offices of DIAC at the end of July, 2012. The Applicant was told that his application was refused on 14 June, 2012. The Applicant contacted me immediately by e-mail and I immediately contacted the DIAC Team Leader, Ms. Virginia Sanders by e-mail on 29 July, 2012 (EXHIBIT B).

Ms. Sanders referred the matter to Mr. Watson immediately and he sent an email to me on 30 July, 2012 apologising for his error and notifying me that he had reset the notification time on the DIAC system to allow my client to lodge a review application within permitted time. (EXHIBIT C). I informed the Applicant of the information I had received from Mr. Watson. I advised the Applicant that as the notification date had been reset by DIAC we had plenty of time lodge the Refugee Review Tribunal application and that I would do so once I returned to Australia.

Mr. Watson sent me a further e-mail on 31 July, 2012 notifying me that the DIAC decision notification date had been reset to 30 July, 2012, and that the Applicant’s Bridging Visa was extended to 27 August, 2012. He also re-iterated that the changes would give me enough time to lodge a review and he again apologised for his error. (EXHIBIT D)

I returned to Australia on 6 August, 2012 and made contact with the Applicant on 7 August, 2012. I then ceased to act for him on 9 August, 2012. The Applicant’s subsequent legal representatives lodged a Refugee Review Tribunal application on his behalf.

46    Mr Watson’s evidence was:

On 2 May 2012, I conducted an interview with the applicant in relation to his Protection visa claims at the Department’s offices at Level 31, 50 Lonsdale Street, Melbourne. Ms Pavlou attended the interview with the applicant.

At the conclusion of the interview, when everyone was packing up and after the recording of the interview had been switched off, Ms Pavlou said to me words to the following effect:

Ms Pavlou: I will be overseas for the next few weeks, would you be able to send your decision if its made in that time to me by email rather than mail because I won’t be in my office.

In response to Ms Pavlou’s request, I said words to the following effect:

Me: Yep that shouldn’t be a problem.

At no time, either during the interview or at any other stage, did Ms Pavlou indicate to me, either verbally or in writing, that she was no longer the applicant’s authorised recipient in the relation to the applicant’s Protection visa application.

At no time, either during the interview or at any other stage, did Ms Pavlou indicate to me, either verbally or in writing, that her address for correspondence, as stated in the From 956 lodged on 7 February 2012, had changed.

At no time, either during the interview or at any other stage, did Ms Pavlou request, either verbally or writing, that I send a copy of the notification of my decision to the applicant directly at either his email address or his address for correspondence.

On 14 June 2012, I made my decision refusing the grant the applicant a Protection visa and signed the notification letter attaching my decision on that date. Annexed hereto and marked “JW-1” is a true copy of the notification letter attaching my decision record.

…

I did not send the notification letter to Ms Pavlou by email on 15 June 2012 as she requested at the end of the interview on 2 May 2012 because I forgot that she had made this request.

47    Mr Watson also described the process by which he sent a “notification letter” to Ms Pavlou by registered post. His affidavit did not deal with what he did after being notified at the end of July 2012 that Ms Pavlou was overseas when put on notice he had not sent the notification by email as he had agreed to do. However, there was objective evidence about this from the Department’s records and from Ms Pavlou’s email records.

48    The Minister submitted Ms Pavlou’s evidence could not be used at all. The Minister submitted the Court should rely only on the evidence of Mr Watson, especially that at paragraph [6] of his affidavit. The approach suggested by the Minister is not warranted. Ms Pavlou’s evidence was admitted and, as the primary judge observed, her non-appearance for cross-examination may affect the weight to be given to it if there were material matters in contest. As it is, the narrative is clear and the accounts given by the two key witnesses, together with the contemporaneous documentary evidence relied on by the appellant to prove Mr Watson’s conduct and his state of mind, are consistent.

49    What constitutes a “few weeks” may vary between individuals. Here, as the appellant submitted and the Minister’s counsel appeared ultimately to accept, the gist of what was said was that when the decision was made it would be sent to Ms Pavlou’s email address, as she had requested. Further, it is apparent from Mr Watson’s evidence, and subsequent conduct in his email to Ms Pavlou and his file note, especially in the purported “re-notification”, that he well understood the importance of the request made, and its purpose. We find Ms Pavlou made it clear to Mr Watson that only her email address was to be used up to and including the time at which Mr Watson sent his decision to the appellant, through Ms Pavlou.

WAS THERE A VARIATION FOR THE PURPOSES OF SECTION 494D(3)?

50    The final question is, as the Minister submitted, whether Ms Pavlou’s statements to Mr Watson at the end of the interview on 2 May 2012 constituted a variation for the purposes of s 494D(3). We consider that they did.

51    We find the variation was an oral variation, which occurred at the end of the appellant’s protection visa interview on 2 May 2012.

52    We find that by her statements Ms Pavlou informed the delegate, Mr Watson, that she would only be contactable by email, and that his decision on the appellant’s protection visa should be sent to her by email. This is consistent with the evidence of both Ms Pavlou and Mr Watson, and also with Mr Watson’s subsequent email and electronic file note. The latter expressly says “agent had requested decision be sent by email”. Mr Watson’s affidavit evidence recounts Ms Pavlou as saying two other material things: that she was going overseas and that the decision should be sent by email “rather than mail”. Taken together, we find those statements provide ample evidence of a change by Ms Pavlou (on behalf of the appellant) of the “address” set out in the written notice previously given under s 494D(1) from a residential/business and an email address to an email address only. Section 494(1) does not require the Minister or his delegate to “agree” to the variation. The evidence, however, clearly demonstrates Mr Watson was aware of the variation and intended to act in accordance with it.

53    Taking into account the email and file record of Mr Watson, as well as his affidavit evidence, we find that the variation was temporary and Mr Watson understood that to be the case. We find the period of the variation was, and was understood by Mr Watson to be, at least until and including the sending of Mr Watson’s decision on the appellant’s protection visa application. It is not necessary to rely on Ms Pavlou’s evidence for this finding, although her evidence is consistent with it. Whether Ms Pavlou said, and Mr Watson understood, that email was to be used for a period of three months is not necessary to decide for the purposes of determining the issues on this appeal.

54    We find Ms Pavlou was, by reason of the 3 February written notice, authorised by the appellant to make that variation. It was also made in the appellant’s presence. Ms Pavlou was acting on the appellant’s behalf and so able to vary the written notice within the terms of s 494D(3).

55    We reject the Minister’s submission that all Ms Pavlou did on 2 May 2012 by her statements was to express a preference to be notified in one of the ways contemplated by s 494B. First, there is in principle no reason why a request made in those terms could not also constitute a variation for the purposes of s 494D(3). Second, since s 494B contains no provision allowing for a preference to be expressed, there is no basis for a finding that Ms Pavlou, as a registered migration agent, would consider expressing a preference to be an effective way to ensure she received a copy of the delegate’s decision in time for compliance with the strict time limits imposed by s 412 of the Act. In taking this approach, we see no inconsistency with Mr Watson’s affidavit evidence set out in [46] above, which is directed at different and presently irrelevant issues.

56    The Minister relied principally on the Full Court decision in Le v Minister for Immigration and Citizenship (2007) 157 FCR 321 at [21] and [27] to support the proposition that simply because Ms Pavlou had asked Mr Watson to send his decision to her email address while she was on holidays, this did not mean she had “withdrawn” her s 494D(1) address as it was originally set out in the written notice: that is, with a postal address. We agree there was no withdrawal, however that is only one of the two alternatives in s 494D(3). There is nothing in Le which is inconsistent with the conclusions we have reached. At [21], the Full Court expressly recognised the operation of s 494D(3) in either variation or withdrawal of the written notice. Le does not suggest any limits on the nature of a variation under s 494D(3) which would support the Minister’s submissions on this appeal. Further, the emphasis by the Full Court at [24] and [29] on the mandatory nature of s 494D(1) illustrates why it is important to give full effect to the entitlement to vary a written notice.

57    On the evidence before the Court, the variation as made by Ms Pavlou on the appellant’s behalf on 2 May 2012, read with the terms of s 66 of the Act, imposed an obligation on the Minister (through Mr Watson as his delegate) to give Ms Pavlou the decision on the appellant’s protection visa application by delivering it to Ms Pavlou’s email address. We find that obligation was not performed until 30 July 2012, when Mr Watson sent an email to Ms Pavlou’s nominated email address attaching the decision record and notification documents required by s 66 of the Act.

58    The time period set out in s 412 of the Act for the appellant to review the delegate’s decision began on 1 August 2012. A review application was lodged on behalf of the appellant on 14 August 2012 and was therefore within the 28-day period specified in s 412. The Tribunal has jurisdiction to conduct the review.

CONCLUSION

59    There will be a declaration confirming the jurisdiction of the Tribunal to deal with the appellant’s application for review of the delegate’s decision. The decision of the Federal Circuit Court will be set aside and, in its place, there will be orders setting aside the decision of the Tribunal that it had no jurisdiction. The Minister must pay the appellant’s costs of the appeal and of the proceeding in the Federal Circuit Court.

Associate:

Dated:    10 December 2013