FEDERAL COURT OF AUSTRALIA

Chung v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 442

MIGRATION – judicial review sought of validity of notification of outcome of visa application – whether notification of decision made in accordance with Migration Act – whether a decision to notify inherent in notification of decision on visa application – jurisdiction of Federal Court to entertain review of notification procedure – jurisdiction to determine application when MRT has not first heard application – no error rendering privative clause inoperative.

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3(1) and (2)

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 65, 66, 338, 347, 474, 475A, 476, 494B, 494C, 494D

Migration Regulations 1994 (Cth) 2.16(3), 4.10(1)

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 cited

Koulaxazov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 75 cited

JAE HO CHUNG AND K-MAX INTERNATIONAL PTY LTD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1437 OF 2002

CONTI J

12 MAY 2003

SYDNEY

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicants to pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The application before the court is purportedly made pursuant to s 39B of the Judiciary Act 1903 (Cth) (the Judiciary Act), whereby declarations are sought to the effect that a certain letter addressed to the Minister did not, in law, operate to notify the applicants of the delegate’s decision to refuse the grant of a Temporary Business Entry (Subclass 457) Visa (“the visa”). An injunction, or an order in the nature of prohibition, restraining the Minister or any of his servants or agents from acting on or giving effect to the decision of the Minister is also sought. For the reasons given below, this application must be dismissed. That is at least because the notification advising the applicants of the outcome of the visa application was made in conformity with the Migration Act 1958 (Cth) (the Act), and in any event, there was no decision of the Minister reviewable by this Court.

2                     The facts giving rise to the refusal by the Minister to grant the visa are as follows. The first applicant, a citizen of South Korea, lodged an application bearing date 15 April 2002 for the above visa on or about 18 April 2002. The second applicant, K-Max International Pty Ltd, sponsored the application. The application was lodged by a registered migration agent Deveraux Beaumont, apparently the firm name for a practice conducted by Mr Robert Liu. The concluding page of the application, under the heading “Authorisation of person to act and receive communication”, included the following, so far as is presently material:

“Authorisation by applicant/sponsor

I, [JAE HO CHUNG]

…

of 16/11 Blaxland Avenue

Newington NSW 2127

authorise the following person to act on my behalf in relation to my application/sponsorship in dealings with the Department of Immigration and Multicultural Affairs (DIMA). This includes authorising DIMA to send that person any communication, documents or notifications relating to my application/sponsorship that would otherwise have been sent to me.

…

Is this authorisation made in connection with an existing application?

(NO box ticked)

Details of authorised person

Title Mr (box ticked)…

Family name LIU

Given name ROBERT

Authorised person’s address

PO Box K733, Haymarket

Sydney, NSW 2000

Telephone number 0438 868 988

Migration Agent Registration Number 0104058

…”

Thereafter was placed the signature of Mr Chung and the date 15 April 2002. Next followed, under the heading “Consent By Authorised Person”, the signature of Mr Liu, his fax number 02 9876 1998, and again the date 15 April 2002.

3                     By letter of 14 May 2002, the Department of Immigration and Multicultural and Indigenous Affairs (the Department) purportedly notified the applicants that the application for the visa had been refused, and that the decision “applied to all secondary applicants included in your application”. Those persons comprised the wife and 2 children of the first applicant. The letter and the attachment headed “SUBCLAUSE 457 VISA APPLICATION REFUSAL” were forwarded to the migration agent’s post office box at Haymarket, Sydney which had been detailed in the visa application.

4                     On 27 June 2002, the migration agent wrote to the Department and asserted that “about 4 days after the application was lodged”, a letter from Mr Liu advising the Minister of the applicant’s change of address had been lodged, apparently by hand, with the Department at its address No 26 Lees Street, Sydney. The full text of the letter of 19 April 2002 was as follows:

“Deveraux Beaumont

Registered Migration Agent No 0104058

Suite 301, 3^rd Floor, 104 Commonwealth Street, Surry Hills NSW 2010

Tel: 02 9211 5222 Fax: 9121 7277

The Case Officer

Department of Immigration and Multicultural and Indigenous Affairs

26 Lees Street

Sydney NSW 2000

Dear Sir/Madam

Re:       Subclause 457 Temporary Business Entry

            Applicant: K-Max International Pty Ltd

            Visa Applicant: Mr CHUNG Jae Ho

            Date of Birth: 16/10/1962

            Receipt No: 815503642

I act for the applicants. I refer to the above application which has been lodged with your office recently.

I will be overseas attending to some urgent matters. I expect to be away for a few weeks. Meanwhile, can you please address all correspondence and communication to the address below:

                                    Suite 301, 3^rd Floor

                                    104 Commonwealth Street

                                    Surry Hills  Sydney  2010

                                    Tel: 02 921 1522 Fax: 02 912 7277.”

Apparently, Mr Liu was the proprietor of the firm named Deveraux Beaumont.

5                     The migration agent also stated in that letter of 27 June 2002 to the Department that he had “just recently returned from overseas”, and that consequently, he had not received the notification of the delegate’s decision, since it was allegedly not forwarded to the address as purportedly notified by that letter of 19 April 2002. The migration agent had thus been absent overseas for a significantly longer time than the “few weeks” which he had foreshadowed by his letter of 19 April 2002. Although the migration agent requested that the Minister rectify the alleged failure to notify by a re-notification, the Department declined to do so. For what it may matter, the migration agent has said in his undated affidavit filed on 11 September 2002 that “[d]uring my absence from Australia, I was not able to access my mail at my regular address at PO Box K733, Haymarket, Sydney NSW 2000”, but he did not indicate why that was the case, nor why he did not in any event cause his office address to be disclosed in the visa application lodged by him for the applicants with the Department only one day beforehand.

The statutory scheme

6                     The Minister’s delegate is empowered to grant a visa if satisfied, pursuant to s 65(1)(a)(ii) of the Act, inter alia, that the criteria prescribed by the Migration Regulations 1994 (Cth) (the Regulations) have been satisfied. If the Minister’s delegate is not satisfied as to that criteria, he or she is required by s 65(1)(b) of the Act to refuse the visa. An applicant, who seeks review by the Migration Review Tribunal (the MRT) of a decision refusing a visa, must comply with the requirements of s 347 of the Act, including the requirement to lodge the application within the prescribed period, which is within 21 days of the notification of the MRT’s decision (see ss 338(2) and 347(1)(b)(i) of the Act, and clause 4.10(1) of the Regulations). Pursuant to s 338(2) of the Act, a decision to refuse to grant a visa is a decision which may be reviewed by the MRT under Division 3 of Part 5 of the Act.

7                     Sections 475A and 476 of the Act stipulate in relation to the jurisdiction of the Federal Court, with respect to decisions made under the Act, as follows:

“475ASection 476 does not affect the jurisdiction of the Federal Court under s 39B or section 44 of the Judiciary Act 1903 or section 39 of the Federal Magistrates Act 1999, or the jurisdiction of the Federal Magistrates Court under section 483A of this Act, section 44 of the Judiciary Act 1903 or section 32AB of the Federal Court of Australia Act 1976, in relation to:

            (a)     a privative clause decision that is a decision made on a review by a Tribunal under Part 5 or 7 of section 500; or

            (b)     any other decision in respect of which the court’s jurisdiction is not excluded by section 476.

476(1)Despite any other law (including section 483A, sections 39B and 44 of the Judiciary Act 1903, section 32AB of the Federal Court of Australia Act 1976 and section 39 of the Federal Magistrates Act 1999), the Federal Court and the Federal Magistrates Court do not have any jurisdiction in relation to a primary decision.”

8                     A privative clause decision, which s 474(1) of the Act stipulates not to be reviewable, is defined as follows:

“474(2)   In this section:

                privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).”

9                     A “primary decision” is defined in s 476(6) of the Act as follows:

“In this section primary decision means a privative clause decision:

(a)       that is reviewable, or has been reviewed, under Part 5 or 7 or section 500; or

(b)       that would have been so reviewable if an application for such review had been made within a specified period.”

Subsection 474(3) of the Act thereafter sets out a non-inclusive definition of “decision” in the following terms:

“(3)     A reference in this section to a decision includes a reference to the following:

            (a)        granting, making, suspending, cancelling, revoking or refusing to make an order or determination;

            (b)        granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);

            (c)        granting issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;

            (d)        imposing, or refusing to remove, a condition or restriction;

            (e)        making or revoking, or refusing to make or revoke, a declaration, demand or requirement;

            (f)         retaining, or refusing to deliver up, an article;

            (g)        doing or refusing to do any act or thing;

            (h)        conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;

            (i)         a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act; and

            (j)         a failure or refusal to make a decision.”

10                  Notification of decisions made under the Act is provided for in ss 66 and 494B of the Act and clause 2.16 of the Regulations. Sections 66 and 494B relevantly provide as follows:

(i)        “66(1)      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.

                            …

            (4)            Failure to give notification of a decision does not affect the validity of the decision.”

(ii)       “494B(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:

                            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.

              (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 purpose of receiving documents; or

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

11                  I would add for completeness that the statutory provisions for the methods of giving documents by the Minister also apply to the giving of documents to an authorised agent of an applicant; thus subss 494D(1)(2) and (3) of the Act provide as follows:

“(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.”

12                  In the case of the giving by the Minister of a document to a person by prepaid post, within 7 working days after the date of the document, see subs 494C(4) of the Act.

Was notification provided in accordance with the Act

13                  Counsel for the applicants read three affidavits in support of the application. The first affidavit was that of Mr Robert Liu sworn on 16 July 2002. I have already identified Mr Liu as the registered migration agent who acted on behalf of the applicants in relation to the visa application. Mr Liu also provided a further undated affidavit which incorporated the text of his original affidavit, in addition to other facts, matters and circumstances bearing upon the essential theme of the applicants’ case. When the two affidavits of Mr Liu are read together, they are seen to establish the following circumstances:

(i)         The temporary address, notified by Mr Liu in his letter of 19 April 2002, was provided because for some unexplained reason, he was unable to gain access to his mail at his regular post office box at Haymarket, Sydney;

(ii)        Mr Liu departed from Australia on 19 April 2002 and returned to Australia on or about 21 June 2002; he did not notify the Department in the meantime, particularly in the context of the applicants’ visa application, that his estimate of “a few weeks” absence from Australia had been revised.

(iii)       Upon Mr Liu’s return to Australia, he ascertained that he had not received any correspondence from the Department in respect of the subject visa application; and

(iv)       In an attempt to resolve the status of the subject visa application, Mr Liu communicated with the Department, and was informed that the Department had refused the application and that the notification of the delegate’s decision had been forwarded to his firm’s post office box (ie PO Box K733 Haymarket).

14                  The third affidavit read in the proceedings on behalf of the applicants was that of Mr Adrian Yap sworn on 23 November 2003. The affidavit embodied by attachment a statutory declaration dated 1 July 2002 also made by Mr Yap, although Mr Yap’s occupation, or association otherwise with Mr Liu, is not immediately apparent on the face of either that affidavit or statutory declaration. The substance of Mr Yap’s affidavit can be summarised as follows:

(i)         On about 18 April 2003, Mr Yap was requested by Mr Liu to deliver Mr Liu’s letter of 19 April 2002 in person to the Department at 26 Lees Street, Sydney;

(ii)        Mr Yap attended the Department on about 22 or 23 April and delivered the above referred to letter to a lady behind the counter who was of “Asian appearance”;

(iii)       The lady of “Asian appearance” said to him that the letter could be forwarded to the relevant officer;

(iv)       Mr Yap “does not know [whether the officer] acknowledged the letter or made any records of the delivery”.

15                  The Minister did not cross-examine either Mr Liu or Mr Yap. Nor did the Minister tender any evidence in reply. The Minster’s principal submission, as to the factual matrix to which I have adverted above, was that the body of evidence, adduced by the applicants in the proceedings, did “not assist the applicants in establishing that the respondent failed to notify”. There is force in that submission.

16                  Mr Liu’s letter of 19 April 2002 indicated that Mr Liu would be overseas for “a few weeks” and that the temporary address therein specified was to be the correct address in the “meanwhile”. No indication as to the precise period of Mr Liu’s absence from Australia was thus provided, since the period of “a few weeks” was open to interpretation. The Macquarie Dictionary (Revised Edition) defines “a few” chiefly as “not many”, “a small number”. It was in any event open to the Department to form the view by 14 May 2002 that “a few weeks” had lapsed, and to thereupon forward any notification in respect of the outcome of the visa application to Mr Liu at his post office box address, being the address for service specified in the visa application, as distinct from the temporary address for service referred to in Mr Liu’s letter bearing date 19 April 2002.

Jurisdiction of the Federal court to review the present application

17                  The Federal Court of Australia has original jurisdiction, subject to certain statutory limitations, “with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth” (s 39B of the Judiciary Act). As Counsel for the Minister correctly postulated, the combined purpose of ss 475A and 476 of the Act, is to limit the jurisdiction of the Federal Court effectively to that conferred by s 39B of the Judiciary Act.

18                  The applicants’ principal submission was that the notification contained in the Department’s letter of 14 May 2002 to the applicants, constituted a separate and distinct “decision”, for the purposes of Part 8 of the Act. In contrast, the Minister contended that a notification did not represent a “decision”, for the reason that the giving of the notification did not involve a “final or operative determination and [consequently] does not amount to a decision for the purposes of s 474(2)”. The description “final or operative determination” was borrowed from the well known passage in the judgment of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 338. Bond initially involved a consideration of the criteria for administrative review set out in subss 3(1) and (2) of the Administrative Decision (Judicial Review) Act 1977 (Cth). Those statutory provisions are almost identical to the terms of s 474(3) of the Act, which I have extracted in [9] above.

19                  The Minister’s submission is I think clearly correct. For a decision-maker merely to communicate his or her decision to a person to be affected thereby, pursuant to his or her duty so to do, does not involve the making of a decision so to do within s 474(3), particularly where the decision-maker is subject to a statutory obligation so to do, whether explicit or implicit. The applicants’ submission involves a tautology of the Minister’s decision-making function which is involved in the statutory process of making a privative clause determination.

20                  I would add the observation that the applicants have already presented their case for review to the MRT, which is apparently yet to be heard. The duplication of applications was said by the applicants to be necessary so that the Federal Court could rule on the issue of notification, whereas the question before the MRT was said to relate to the substantive decision of the Minister’s delegate to refuse to grant the visa. It was on that basis that the applicants contended that there were two distinct proceedings and issues to be tried. There is force in the Minister’s response that what the applicants are seeking to do is to “attempt to pre-empt a decision by the [MRT] as to whether it has jurisdiction, which is part of its function in determining an application for review”. That is a matter upon which I need not express a final view. I would merely observe that there is much to be said for a conclusion to the effect, upon the basis of my observations made in [16] above, that the Department correctly considered that the address of the applicants for service of the decision of the Minister’s delegate, in the events which happened, was the Haymarket post office box of the applicants’ migration agent Mr Liu. It suffices to say that even if the obstacles I have already described were overcome, and I had formed the view that notification was not given in accordance with the Act, the outcome of any such finding would have no bearing upon the decision to refuse the visa. That is because a “failure to give notification of a decision does not affect the validity of the decision” (see s 66(4) of the Act).

21                  Finally, I would add that even if the notification constituted a decision and was therefore justiciable under Part 8of the Act, no error has been raised which would render inoperative the privative clause the subject of s 474 of the Act. In Koulaxazov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 75, I expressed the obiter view that the Full Court’s majority decision in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 should not be presently disregarded beyond what has been explicitly stipulated by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 at [73]. Another member of the Full Court (Gyles J) in Koulaxazov reached a similar conclusion for reasons which his Honour set out. My view expressed on Koulaxazov was that the privative clause was inoperative where the “Hickman provisoes were not satisfied [ie there must be a bona fide exercise of power, the decision must relate to the subject matter of the legislation and be reasonably capable of reference to the power given to the body] or in circumstances where a contravention of an inviolable limitation or imperative duty required to be observed under the Act has occurred” (at [72]), principally a denial of natural justice. No such error or errors in the present matter has or have been established. Indeed in the light of the conclusions which I have reached, namely that it was open to the Department to notify the applicants of the outcome of the visa application by forwarding the letter of 14 May 2002 to Mr Liu’s post office box, the Minister has committed no error at all.

22                  It follows that the application must be dismissed with costs.

Associate:

Dated:              12 May 2003