FEDERAL COURT OF AUSTRALIA

Makhu v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 221

GURUCHARAN SINGH MAKHU v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S 504 of 2003

MANSFIELD J

27 FEBRUARY 2004

ADELAIDE

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant pay to the respondent costs of the application.

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

REASONS FOR JUDGMENT

introduction

1                     This is an application under s 39B of the Judiciary Act 1993 (Cth) for prerogative orders in respect of a decision of the Migration Review Tribunal (the Tribunal) given on 14 April 2003.  Principally the application is for an order quashing the decision of the Tribunal.  It is common ground that to succeed on the application the applicant must demonstrate jurisdictional error on the part of the Tribunal:  see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2.

2                     The applicant is a national of India, who arrived in Australia on a student visa on 7 April 1997.  On 31 August 2001 he applied for a Temporary Business Entry (Class UC) Subclass 457 (Business (Long Stay)) visa.  A delegate of the respondent rejected his application for the visa on 25 October 2001.  The Tribunal affirmed that decision.

3                     Section 31 of the Migration Act 1958 (Cth) (the Act) provides for the prescription of various classes of visa and for the criteria for the grant of a particular class of visa.  The prescribed criteria for the grant of the visa, so far as relevant to the present proceedings, are those contained in cl 457.223(4) of Sch 2 to the Migration Regulations 1994 (Cth) which relevantly provided:

‘The applicant meets the requirements of this subclause if:

…

(b)               the employer is:

(i)                 a pre-qualified business sponsor; or

(ii)               a standard business sponsor; and

(c)               the applicant is nominated … in relation to the activity by the employer; and

…’ 

Clause 457.223(4)(b) was replaced by cl 3 and Sch 2 Pt 3 Item [2331] of the Migration Amendment Regulations 2002 (No 10) (Statutory Rules 2002 No 348), but the change only applied to applications for a visa made after 1 March 2003;  see reg 4(2) of that amendment.

4                     In his application for the visa the applicant had identified his proposed employer, but it appears that the employer had not provided the nomination required and the employer was not a business sponsor proved under the Regulations.  On 11 September 2001 an officer of the respondent apparently wrote to the applicant pointing out those deficiencies in his application and inviting him to address them.  He now deposes, by affidavit of 15 December 2003, that he did not receive that letter.  For present purposes it is not necessary to resolve that issue.  He was notified of the delegate's decision to reject his application for the visa and made application to the Tribunal for the review of that decision.  The Tribunal was to review the decision on its merits:  s 349 of the Act.

the tribunal’s decision

5                     The Tribunal identified the same issues arising under cl 457.223(4) of the Regulations.  It wrote to the applicant on 6 February 2003 indicating those problems to him.  The letter was sent pursuant to s 359A of the Act, which required the Tribunal to give to the applicant particulars of any information which it considers would be a reason for affirming the decision of the delegate of the respondent, and to invite his comments upon it.  He did not respond, either within the time permitted or at all.  Consequently the Tribunal proceeded to make its decision.  It concluded that the applicant’s proposed employer had not been approved as a business sponsor and that it had not nominated the applicant in relation to the proposed employment.  Consequently the applicant did not meet the criteria for the visa specified in cl 457.223(4) of Sch 2 to the Regulations.  In those circumstances, s 65 of the Act directed it to affirm the decision of the delegate that the applicant is not entitled to the grant of the visa.

6                     The applicant, by his affidavit, asserts that he did not receive the letter dated 6 February 2003.  There is no material to indicate that the proposed employer has, contrary to the conclusion of the Tribunal, become an approved business sponsor, or that it has nominated the applicant in relation to his employment in support of the visa application.  Consequently, the Tribunal’s decision at first blush appears unexceptionable and unchallengeable.  The criteria for the grant of the visa specified in cl 457.223(4) of Sch 2 to the Regulations have simply not been satisfied.  There is in the circumstances no discretion in the Tribunal.

the alleged jurisdictional error

7                     The initial application for review did not specify with any particularity the ground or grounds upon which the Tribunal is asserted to have committed jurisdictional error in the making of its decision. 

8                     The amended application, the submissions of counsel for the applicant and the applicant's affidavit, to which I have referred, identify that the attack is upon the process by which the Tribunal came to make its decision.  Again there is no dispute that the Tribunal, in making its decision, was obliged to comply with the requirements of procedural fairness to the applicant:  Plaintiff S157/2002; Muin v Refugee Review Tribunal [2002] HCA 30.  Relevantly, for present purposes, counsel for the applicant has identified the issue as whether the Tribunal complied with s 359A of the Act.

9                     Section 359A requires the Tribunal to give to the applicant ‘in the way that the Tribunal considers appropriate in the circumstances’ particulars of any information which it considers would be the reason for affirming the decision under review.  Section 359A(2)(a) requires the information to be given to the applicant by one of the methods specified in s 379A.  The method applicable to the Tribunal's notification in this instance is that specified in s 379A(4) which is in the following terms:

‘Another method consists of a member, the Registrar, a Deputy Registrar or another officer of the Tribunal, dating the document, and then dispatching it:

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

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

(c)               to:

(i)                 the lasts address for service provided to the Tribunal by the recipient in connection with the review; or

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

10                  The evidence is clear that a letter, which in terms complied with the obligation under s 359A of the act, was dispatched to the applicant by prepaid post on 6 February 2003.  It was addressed to him care of a migration agent at the migration agent's address.  A copy of the letter was sent to him at his residential address.  The residential address was that provided by the applicant to the Tribunal in his application for review to the Tribunal.  The problem is said to have arisen because the application to the Tribunal contained a nomination, under s 379G(1) of the act, of the migration agent at the migration agent's address, as the authorised recipient of communications under the Act.  It also contained the address of the migration agent as the applicant's nominated address for correspondence. 

11                  The letter of 6 February 2003 contained no errors in the identification of the addresses.  However, it was not addressed to the authorised recipient (the migration agent) at the migration agent's address, it was addressed to the applicant care of the migration agent at the migration agent's address and it was copied to the applicant at his residential address.  As noted, he deposed to not having received that letter.  He does not identify any reason why he may not have done so.

12                  There is no evidence from the nominated migration agent that the migration agent also did not receive the letter.  There is nothing to explain why the applicant was able to receive the notice of the delegate's decision and notice of the Tribunal's decision apparently sent to the same addresses without difficulty so that he could institute the application for review to the Tribunal and then the application to the Court.  However, the critical question is whether the applicant was given the opportunity which s 359A entitles him to be given.  That in turn depends upon whether he was given the letter of 6 February 2003 in accordance with the requirements of the Act.

13                  The Act contains provisions as to the means of service, and the effect of service by those means, upon the applicant.  The evidence is clear that the letter of 6 February 2003 containing the notification required by s 359A was dispatched to the applicant within three working days of its date by prepaid post to his last residential address and to the address for correspondence provided by him to the Tribunal. (respectively his residential address and his migration agent’s address).

14                  In my judgment the sending of the letter of 6 February 2003 in that way is in accordance with a method of giving documents to him prescribed by s 379A(4).  It was sent to him, both to his last address for service provided to the Tribunal by him in connection with the review and to his last residential address provided by him to the Tribunal in connection with the review.  (See s 379A(4)(c).)

15                  The consequence of having complied with that section is spelled out in s 379C of the Act, namely, that the applicant is taken to have received the document seven working days after its date.  Notwithstanding the applicant's assertion that he did not receive the document, in fact, the provisions of s 379C(4) mean that for the purposes of the Act the applicant is taken to have received that letter seven working days after its date.

16                  Under s 359C his failure to respond to that letter empowers the Tribunal to make a decision on the review without taking any further action to obtain the additional information or to obtain the applicant's views on that information.  Moreover, s 360, which obliges the Tribunal to invite the applicant to appear before it to give evidence and to present arguments relating to the issue arising in relation to the decision under review does not apply where there has been a failure to respond to a notice under s 359A:  see s 360(2)(c).  Section 360(3) expressly says that in such circumstances the applicant is not entitled to appear before the Tribunal. 

17                  Accordingly in my judgment, notwithstanding the applicant's evidence that he did not in fact receive the notice under s 359A of the Act, the Act deems him to have received it in the circumstances and the Tribunal was not, under Div 5 of the Act, (including s 360), obliged to give him a further opportunity to give evidence or to present arguments as he did not respond to that notice.  It was entitled to proceed to hear and determine his application, as it did.

18                  I do not accept that by nomination of his migration agent as an authorised recipient, under s 379G of the Act, the notice under s 359A must only be given to the applicant by being addressed to and sent to the migration agent.  Section 379G(2) provides:

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

19                  As noted, the letter of 6 February 2003 was addressed to the applicant care of the migration agent at the migration agent's address and to the applicant at his residential address.  Section 379G(1) applies where the Tribunal has given to the authorised recipient, instead of the applicant, the document.  Section 379G(2) provides, firstly, that giving the document to the authorised recipient means that the Tribunal is taken to have given the document to the applicant.  However, it also expressly preserves the right of the Tribunal to give to the applicant a copy of the document.  That it did.

20                  The circumstances presently under consideration are different from those considered by the Full Court in Vean of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 311.

21                  In the circumstances it is not necessary for me to consider the alternative contention put by counsel for the respondent.  It was that even if the Tribunal were obliged to comply with s 379G(1) by giving to the migration agent the letter of 6 February 2003 in the manner provided by s 379A(4) addressed to the migration agent at the migration agent's address, the failure to do so in the circumstances would not amount to jurisdictional error.  The argument was that in the light of s 379G(2) and s 379A(4), service by other means (where it is done in compliance with those provisions) does not result in jurisdictional error simply by reason of a failure to give notice also to the authorised recipient and addressed to the authorised recipient under s 379G(1).  Reference was made in particular to Project Blue Sky v Australian Broadcasting Authority (1998) 153 ALR 490; [1998] HCA 28; and Plaintiff 157/2002 at 489 - 493, at [21] - [33] per Gleeson CJ, and at 501-504, at[61] - [70] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.

22                  As I have said, in view of the conclusion I have reached I do not need to address that alternative contention. 

23                  For the reasons given the application should be dismissed.  I order that the applicant pay to the respondent the costs of the application.

Associate:

Dated:              11 March 2004