Federal Court of Australia

Kassem v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 193

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

THE COURT:

1.    INTRODUCTION

1    The question for consideration in this appeal is whether the Minister gave the appellant proper notice of a non-revocation decision in accordance with s 501G of the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth) by emailing it to his solicitor.

2    On 29 September 2022, a delegate of the present first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs, decided under s 501CA(4) of the Act, not to revoke the mandatory cancellation of the appellant’s visa (non-revocation decision). Notice of the non-revocation decision, and the reasons for it, was emailed to the appellant’s then solicitor on the same day. An application was made by the appellant for merits review of the non-revocation decision just over one month later, on 1 November 2022. However, s 500(6B) of the Act required such an application to be made within nine days.

3    The appellant applied to the Administrative Appeals Tribunal for a review of the non-revocation decision. The Tribunal determined that it did not have jurisdiction to hear the application because the application for merits review was made out of time. The appellant then sought judicial review of the decision of the Tribunal. The issue before the primary judge was whether the Tribunal erred in concluding that the appellant had been given notice of the non-revocation decision, such that his application for review met the requirements of s 500(6B) of the Act. His Honour decided that the Tribunal had not erred and dismissed the application: Kassem v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 451.

4    The same issue arises in the present appeal.

5    The relevant provisions of the Act and of the Regulations in relation to the giving of notice of the non-revocation decision were succinctly summarised by the primary judge at [8] as follows:

(a)    s 501G(1)(ba) and (c)-(d), provided that if a decision was made under s 501CA not to revoke a decision to cancel a visa, the Minister must give the former visa holder a written notice setting out the decision, the provision under which it was made, and the reasons for the decision;

(b)    s 501G(3) provided that a notice under s 501G(1) “must be given in the prescribed manner”;

(c)    s 5(1) defined “prescribed” as “prescribed by the regulations”;

(d)    reg 2.55(1)(b)(ii) applied to the giving of a document under s 501G(3) relating to a decision under s 501CA not revoke a cancellation decision, but reg 2.55(2)(b) provided that reg 2.55 did not apply to persons in immigration detention, such as the applicant;

(e)    the note to reg 2.55(2) advised the reader to see reg 5.02, which provided (emphasis added):

For the purposes of the Act and these Regulations, a document to be served on a person in immigration detention may be served by giving it to the person himself or herself, or to another person authorised by him or her to receive documents on his or her behalf.

(f)    s 494A(1), which commenced on 10 August 2001, provided (emphasis added):

If:

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

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

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

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

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

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

(g)    s 494B provided the methods by which the Minister can give documents to a person, and in particular, s 494B(5)(b) and (d) provided:

Transmission by fax, email or other electronic means

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

(a)    …

(b)    email; or

(c)    …

to:

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

(h)    s 494C(1) provided that s 494C applied if the Minister gave a document to a person by one of the methods specified in s 494B, including in a case covered by s 494A;

(i)    s 494C(5) provided:

Transmission by fax, email 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, email 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.

(j)    s 494D relevantly provided:

(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 receive documents in connection with specified matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents in connection with those matters 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.

(k)    s 500(6B) relevantly provided:

If a decision under section 501 of this Act, or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa, relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1). Accordingly, paragraph 29(1)(d) and subsections 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 do not apply to the application.

(Emphasis in original)

2.    THE DECISION OF THE PRIMARY JUDGE

6    The primary judge found that proper notice of the non-revocation decision under s 501G of the Act had been given by sending notice of the decision of the delegate for the Minister by email to the solicitor whom the appellant had formally appointed to represent him. In this regard, the primary judge first found that the terms of s 494A(1) of the Act applied such that s 494B(5)(b) and (d), s 494C(1), s 494C(5), and s 494D(1) also applied which rendered the email to the appellant’s solicitor an effective giving of written notice of the non-revocation decision ([12]). His Honour found the requirement of s 494A(1)(b) that “the provision does not state that the document must be given” by one of the methods in subs (i) or (ii) was met because s 501G(3) does not contain any statement as prescriptive as that used elsewhere in the Act, namely that a document must be given “by a method prescribed for the purposes of giving documents to such a person”, citing ss 359(3)(b), 359A(2)(b), 360A(2)(b) and others as examples. Instead s 501G(3) merely provides that a notice under s 501G(1) “must be given in the prescribed manner” ([17], [18]), which, relevantly was not a provision that “does not state that the document must be given” by one of the methods in subs (i) or (ii). As a consequence, s 449A(1) operated such that the Minister was able to give the document to the appellant “by any method that he consider[ed] appropriate”.

7    The primary judge next found that even if s 494A(1) of the Act did not apply, reg 5.02 provides for the giving of notice to a person via another person authorised to receive it. Whilst “giving” contemplates some kind of physical act of delivery, that is not confined to handing it over in person, and instead can involve any form of actual delivery or receipt by the person to whom it is given. What matters is that it is given, not the means by which it is given ([21], [24]). His Honour rejected the proposition that “giving” must be understood to require handing a written notice personally, either to the appellant or his solicitor.

3.    THE APPEAL

8    The appellant advances two broad contentions in support of his appeal.

9    He first submits that the primary judge erred in finding that s 494A(1) of the Act applied, because the conditions set out in sub-section (b) are not met, in particular that of sub-section (b)(ii). He submits that for a person in immigration detention, reg 5.02 of the Regulations operates as the sole prescription of the means by which notification under s 501G(3) of the Act may be effected. The appellant relies on two authorities that were not before the primary judge: Butt v Minister for Immigration and Border Protection [2014] FCA 1354; 227 FCR 359 (Mortimer J, as the Chief Justice then was) and Minister for Immigration, Citizenship and Multicultural Affairs v EVE21 [2023] FCAFC 91; (2023) 298 FCR 57 (Perram, Rofe, Feutrill JJ). The appellant accepts that by oversight Butt was not drawn to the attention of the primary judge. EVE21 was decided after judgment in the present case was published.

10    Secondly, he submits that the conclusion reached by the primary judge by way of alternative analysis also reflected error. In this respect he contends that the primary judge’s interpretation of the term “giving” in reg 5.02 as extending beyond the provision of a hard copy of the non-revocation decision directly to the subject of the decision or their authorised representative was in error.

11    The appellant instead contends that the term “giving” in reg 5.02 should be understood to require physical delivery of the notice to the immigration detainee or their authorised representative. He submits that the Minister may use any means to achieve that end, but what is required is the ultimate handing over of a hard copy document to the detainee or authorised representative. Electronic transmission and receipt (which may or may not result in actual awareness of receipt of the document) will not suffice, and accordingly the primary judge erred in concluding that the provision of the documents to the appellant’s solicitor by email was sufficient. He submits that the mischief to which reg 5.02 is directed is to ensure that there is a greater likelihood that the document advising of the non-revocation decision will come to the attention of the person in immigration detention or their authorised representative and that the conclusion reached by the primary judge would not address that mischief.

12    Further, the appellant contends that general principles of interpretation favour this construction. He relies on the legislative history which, he submits, indicates that there is a “special meaning” to be ascribed to the word “giving” in the context of a person who is in immigration detention. Next, he submits that the special meaning itself, which he contends should be understood to cater for the vulnerability of a person detained and their ability to respond to a notice of decision by making or instructing the making of an application for review within the limited nine day window afforded by the legislation, supports his argument. Finally, the appellant cites the decision of the High Court in WACB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50; (2004) 80 ALD 69 in aid of his approach and seeks to distinguish several Federal Court authorities which address the subject and are broadly adverse to his position.

13    In response to the first argument, the Minister contends that the primary judge correctly accepted his submission below that s 494A(1) of the Act applied to the appellant, thereby rendering the notification of the non-revocation decision via email to the appellant’s solicitor effective, and argues that the reasoning in Butt and EVE 21 is not sufficiently analogous to the present case to support the construction put forward by the appellant.

14    In response to the second argument, the Minister submits that the text of reg 5.02 does not require the act of handing over a hard copy document to the detainee or their authorised representative. He submits that several cases decided in this Court equate “giving” under reg 5.02 with delivery or service, not physically placing a document in the hands of the relevant person and contends that WACB does not have any bearing on the present case. The Minister further contends that:

(a)    the context of reg 5.02 within the scheme of the Regulations indicates that the Minister may “give” a document to a person by various methods, including transmission by email;

(b)    the appellant’s appeal to the legislative history does not assist him; and

(c)    the context of immigration detention is no more special or unique than imprisonment, and yet reg 2.55, which applies to a person in prison because, for example, their visa was cancelled under s 501(3A) of the Act, permits the Minister to give a document to them by various means, including email.

4.    CONSIDERATION

15    In his first argument the appellant contends that the primary judge erred in concluding that the requirement of s 494A(1)(b)(ii) was satisfied in circumstances where s 501G(3) and reg 5.02 applied. We disagree.

16    In Butt, Mortimer J (as the Chief Justice then was) considered s 127(1) of the Act, which provided that when the Minister decides to cancel a visa, he or she is to notify the visa holder of the decision “in the prescribed way”. The relevant prescription was that contained in reg 2.55. A question before the Court was therefore whether s 494A of the Act (and subsequently ss 494B and 494C) also applied in respect of a cancellation decision notifiable pursuant to s 127. Her Honour accepted the appellant’s submission that:

(a)    s 127, when read with reg 2.55, was expressed in mandatory terms and imposed a duty on the Minister, whereas ss 494A-494C were general provisions;

(b)    applying the principle set out in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1, taken with the prescriptive nature of the terms of s 127, s 127, read with reg 2.55, operated to exclude ss 494A-494C; and

(c)    while the content of reg 2.55 was at the time the same as ss 494B-494C, it was open for this position to change by amendment.

17    In obiter dicta in EVE21, Perram J at [62], Rofe J agreeing at [90], expressed agreement with the conclusion of Mortimer J in Butt that where a provision of the Act required the notification of a cancellation decision to be given to a person ‘in a prescribed way’, ss 494A-494C could not apply. In that case the Court was considering the notification requirement contained in s 107 and reg 2.42, which did not include such a prescription.

18    We are of the view that the reasoning in Butt demonstrates that in one respect the primary judge erred in taking a somewhat literal approach to the application of s 494A(1). The requirement of s 494A(1)(b) that “the provision does not state that the document must be given” by one of the methods in ss 494A(1)(b)(i) or (ii) should be considered by having regard to the substance of the operation of that provision and also associated regulation to which it refers, not by having regard merely to whether there is a literal statement of those words. We respectfully disagree with the literal approach taken by the primary judge.

19    However, we accept, as the Minister submits, that when each provision is read with their accompanying regulation, being regs 5.02 and 2.55, respectively, the effect of the provisions is not analogous to that in Butt.

20    Regulation 2.55 (which is set out in [26] below), as identified in Butt, relevantly prescribed the ways in which the Minister must give a document to a person. We accept the Minister’s contention in the present case that reg 2.55(3) is expressed in both mandatory and exhaustive terms, providing that “for a document mentioned in paragraph (1)(a) or (c), the Minister must give the document in one of the following ways…”, the methods then being listed in reg 2.55(3)(a) – (d).

21    By contrast, reg 5.02 is not in such prescriptive terms, providing instead that “a document to be served on a person in immigration detention may be served by giving it to the person…or to another person authorised…to receive documents”. As we note in further detail below, reg 5.02 serves to prescribe the identity of the persons to whom notice must be given, but not the method in which it may be given. Accordingly, s 501G(1) when read with reg 5.02, does not state that the document must be given by a method prescribed for the purpose of giving documents to a person in immigration detention, and the Minister may, by operation of s 494A(1), give the document to a person by any method that he or she considers appropriate. However, that is tempered by the requirements of reg 5.02, which leads us to turn to the appellant’s second argument.

22    Regulation 5.02 appears in Part 5, Division 5.1 of the Regulations under the heading “Service of documents”. It is entitled “Service of document on person in immigration detention”. It provides:

For the purposes of the Act and these Regulations, a document to be served on a person in immigration detention may be served by giving it to the person himself or herself, or to another person authorised by him or her to receive documents on his or her behalf.

(Emphasis added).

23    It is apparent from reg 5.02 that a person may be served by giving it to the person in immigration detention or by giving it to another person authorised to receive the documents. In the present case, the appellant’s solicitor received the document by email. The second question is thus whether the primary judge erred by concluding that this satisfied the requirement of service “by giving it” to that person.

24    Having regard to the plain and ordinary meaning of the language in reg 5.02, the regulation provides no more than that a person in immigration detention may be served a document by “giving it” to the person or a person authorised by them. Regulation 5.02 describes the action of “giving” without prescribing or assuming the method by which that action is to be carried out.

25    This construction is supported by the context of the Regulations and statutory scheme as a whole: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 320.

26    The word “give” is used in other parts of the Regulations. Regulation 2.55, which applies to a person in prison (because, for example, their visa was cancelled under s 501(3A) of the Act) provides:

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

(1)    This regulation applies to:

(a)    the giving of a document to a holder or former holder of a visa relating to the proposed cancellation or the cancellation of a visa under the Act; and

(ab)    the giving of a document under subsection 133E(2) of the Act relating to a decision to cancel a visa under subsection 133A(1) or 133C(1) of the Act; and

(b)    the giving of a document under subsection 501G(3) of the Act relating to a decision to:

(i)     cancel a visa under section 501, 501A, 501B, 501BA or 501F of the Act; or

(ii)     not revoke a decision to cancel a visa under section 501CA of the Act; and

(c)    the giving of a document to a holder or former holder of a visa relating to the revocation of the cancellation of a visa under the Act.

(2)    However, this regulation does not apply in relation to:

(a)    a notice to which section 137J of the Act relates; or

(b)    a person who is in immigration detention.

Note:     See regulation 5.02.

(3)    Subject to subregulation (3A), for a document mentioned in paragraph (1)(a) or (c), the Minister must give the document in one of the following ways:

(a)    by handing it to the person personally;

(b)    by handing it to another person who:

(i)    is at the person’s last residential or business address known to the Minister; and

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

(iii)    appears to be at least 16 years of age;

(c)    by dating it, and then dispatching it:

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

(ii)     by prepaid post or by other prepaid means;

to the person’s last residential address, business address or post box address known to the Minister;

(d)    by transmitting the document by:

(i)     fax; or

(ii)     email; or

(iii)     other electronic means;

to the last fax number, email address or other electronic address known to the Minister.

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

…

(Emphasis added)

27    It will be seen that reg 2.55(1)(a) – (c) applies to “the giving of a document” to persons in various circumstances, including in relation to the proposed cancellation, cancellation or the revocation of cancellation of a visa. In each circumstance, save where the person is a minor, the Minister “must give the document” in one of the ways specified in subreg (3), which includes handing it to the person personally, dating it and then despatching it by post and transmitting the document by email or other electronic means. The language of “giving” and “give” in reg 2.55 is plainly intended to be understood as broad enough to encompass at least each of the means specified as amounting to giving in that regulation.

28    Regulations 4.11 and 4.31AA specify a similar range of document delivery methods as the means by which an application for review by the Tribunal “must be given to the Tribunal” in the context of Part 5- and Part 7-reviewable decisions.

29    Subject to any contrary intention, where an Act confers the power to make a legislative instrument, such as the Regulations, the expressions used in the instrument have the same meaning as in the enabling legislation: s 13(1) of the Legislation Act 2003 (Cth). As such, regard may also be had to the deployment of the verb “giving” in the Act. The term has been used in a similarly expansive way in s 494A(1) whereby “the Minister may give the document to the person by any method that he or she considers appropriate” and in s 494C(1) such that “[t]his section applies if the Minister gives a document to a person by one of the methods specified in section 494B”. We do not consider that the fact that reg 2.55(2)(b) excludes from its terms persons in immigration detention suggests an intention on the part of those drafting reg 5.02 that the construction of “giving” to which we have referred is excluded. Regulation 2.55 includes within its scope the giving of a document to a person who is in criminal detention, by the operation of s 501CA(3), which is analogous to the position of a person in immigration detention.

30    The authorities relied upon by the appellant do not mandate a different construction. In H v Minister for Immigration and Multicultural Affairs [2002] FCA 126; [2002] FCAFC 18; (2002) 118 FCR 153 (Lee, Carr and Finkelstein JJ), the Full Court held at [8] that notification of a decision refusing the grant of a visa via facsimile transmission to the applicant’s migration agent complied with reg 5.02. The appellant submits that this conclusion was unconsidered obiter dicta that can be safely set to one side. However, we do not read the decision in that way. At that time, reg 5.02 was accompanied by reg 5.03, which dealt with deemed receipt of documents served under reg 5.02, such that the date upon which the facsimile was sent to the migration agent was not the date upon which it was taken to be received, but rather was deemed to have taken place seven days after the date of the document. As the primary judge noted at [23(a)]:

Their Honours had express regard to the notification being sent to the migration agent, which was only tenable if that was treated as being effective in giving the document to that agent. The point was therefore decided and not merely assumed, forming part of the ratio of the decision.

31    More recently, in Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174; (2021) 288 FCR 180 (Yates, Griffiths and Moshinsky JJ) the Full Court made a primary finding that reg 5.02 did not apply (because the appellant was not in immigration detention at the relevant time). It made a secondary finding at [39], which we accept was obiter dicta, that even if he had been in immigration detention, he was nonetheless served with the cancellation notice because it was sent to him by registered post (at [8]). We do not accept the submission advanced by the appellant that this alternative finding was premised on the fact that there was evidence that the appellant had in fact received the notice. Rather, the decision indicates that the sending of a document by registered post was an effective means of “giving” the appellant notice (see [39], [40]). As the primary judge noted at [23(d)] of his reasons, it is difficult to see how notification by email would not constitute “giving” if registered post did.

32    The appellant places heavy reliance on the decision of the High Court in WACB. That case arose from an objection to competency taken by the Minister on the basis that the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (RRT) had been lodged out of time. At the relevant time, s 430D(2) of the Act provided that the RRT must “give the applicant” a copy of a document notifying them of the reasons for the decision (at [66]). A majority of the Court noted at [37] that the word was not defined in the Act and said:

At the relevant time, the word “give” used in s 430D(2), the applicable provision in this case, was not defined. Accordingly, it is the ordinary meaning of the word, understood in its context, that must be considered. The context is that the RRT must give the applicant a copy of the written statement. In that setting, to give a document ordinarily requires its physical delivery, not some act of constructive delivery of possession which, at general law, may suffice to transfer property in a chattel. …

(emphasis added)

33    The appellant submits that WACB is a powerful indicator of the correct interpretation of reg 5.02, which serves similar purposes and uses in substantially the same language. However, as the primary judge observed, the point of distinction being made in this passage was between physical delivery and constructive delivery of possession. Furthermore, in WACB the Court was considering the terms of the Act after the commencement of the Migration Legislation Amendment Act (No 1) 1998 (Cth) (at [2]) but before amendments introducing s 494A of the Act and reg 2.55, which were introduced with the enactment of the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 (Cth) (No 58 of 2001) and the consequent commencement of the Migration Amendment Regulations 2001 (No 6) (Cth) (No 206 of 2001). These amendments formed part of a suite of legislation, including the Electronic Transactions Act 1999 (Cth) giving effect to the validity of electronic communications which arose from the then recent technological advancements and innovations. The High Court was thus not considering the provisions of the Regulations that are presently before this Court. Relatedly, there was no occasion for the Court to observe the use of the same word in other parts of the statute, which in the present case is instructive as to the intention of the drafter of the Regulations as to the breadth of “giving”.

34    Finally, the Minister draws attention to the decision in Minister for Immigration and Border Protection v EFX17 [2021] HCA 9; 271 CLR 112 (Kiefel CJ, Gageler, Keane, Edelman and Steward JJ), where the High Court held in [23] (footnote omitted):

The use of “give or deliver unto” in legislation has been described as the “exact equivalent” of “has been served on” in a context where a document “had come to the hands of the applicant”. Section 28A of the Acts Interpretation Act 1901 (Cth) is also premised upon the assumption that verbs such as “give", when used in Commonwealth legislation, are alternatives to “serve” so that one manner in which giving a document can be satisfied is “by delivering it”.

35    As the primary judge noted at [23(e)], it is plain enough from this passage that handing a document over constitutes giving it, but that actual delivery by other means also constitutes giving it.

36    We accept that, whilst none is determinative of the question currently before the Court, each of H, Sillars and EFX17 is persuasively indicative that the approach that we have preferred, having regard to the statutory context and language in the Regulations, is correct.

37    Accordingly, in our view it was sufficient, to satisfy the requirements of reg 5.02, that the document setting out reasons of the non-revocation decision was emailed to the person authorised by the appellant. There is no dispute that the email was in fact received by that person. The second argument advanced on appeal must be rejected.

DISPOSITION

38    The appeal must be dismissed.

39    The appellant must pay the first respondent’s costs of the appeal.

Associate:

Dated:    11 December 2023