Murphy v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 657

FEDERAL COURT OF AUSTRALIA

MIGRATION - PRACTICE AND PROCEDURE – Business Skills (Residence) (Class BH) visa, subclass 840 (Business Owner) – appeal from a refusal of the Migration Review Tribunal to grant visa – whether notification of Minister’s decision to refuse visa application is effective where written notification is sent by prepaid post to an address the Minister knows will result in the notification being returned undelivered, and which was so returned – the effect of subss 494B(4) and 494C(4) of the Migration Act 1958 (Cth) – whether subs 494C(4) of the Migration Act 1958 (Cth) evidences a contrary intention to the second limb of s 29 of the Acts Interpretation Act 1901 (Cth)

Acts Interpretation Act 1901 (Cth) s 29(1)

Migration Act 1958 (Cth) ss 441C, 475A, 494B, 494C, subss 474(1), 66(1), 338(2) 347(1),

Judiciary Act 1903 (Cth) s 39B

Summary Jurisdiction (Appeals) Act 1933 (U.K.) subs 3(1)

Interpretation Act 1889 (U.K.) s 26

Companies Act 1948 (U.K.) subs 437(1)

Hire Purchase Act 1959 (Qld) subs 42(1)(c)

Acts Interpretation Acts 1956 to 1962 (Qld)

Migration Regulations 1.11A, 2.16(3), 4.10(1), Schedule 1, Part 1, Clause 1104A, Schedule 2, Clauses 840.212, 840.213

Companies and Securities (Interpretation and Miscellaneous Provisions) (Qld) Code s 15

Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 cited

Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 305 referred to

R v County of London Quarter Sessions Appeals Committee; Ex parte Rossi [1956] 1 QB 682 considered

Saga of Bond Street Ltd v Avalon Promotions Ltd [1972] 2 QB 325 considered

Fancourt v Mercantile Credits Limited (1983) 154 CLR 87 considered

Re Otway Coal Co Ltd. [1953] VLR 557 considered

A/S Cathrineholm v Norequipment Trading Ltd [1972] 2 QB 314 considered

Thomas Bishop Ltd. v Helmville Ltd [1972] 1 QB 464 referred to

Re Rustic Homes Pty Ltd (1988) 13 ACLR 105 referred to

Re Gasbourne Pty Ltd [1984] VR 801 referred to

Re Ocean Distributors Pty Ltd (1990) 2 ACSR 486 referred to

Deputy Commissioner of Taxation v Coco (2003) 52 ATR 700 referred to

Repatriation Commission v Gordon (1990) 100 ALR 255 referred to

NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184 considered

VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004]

FCAFC 134 considered

PATRICK MICHAEL MURPHY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

No Q 4 of 2004

SPENDER J

BRISBANE

25 MAY 2004

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 4 OF 2004

BETWEEN:	PATRICK MICHAEL MURPHY APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SPENDER J
DATE OF ORDER:	25 MAY 2004
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. Unless submissions are received within seven days from either party seeking to contend to the contrary, the applicant pay the respondent’s costs of and incidental to the application, to be taxed if not agreed.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 4 OF 2004

BETWEEN:

PATRICK MICHAEL MURPHY

APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE:	SPENDER J
DATE:	25 MAY 2004
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 This is an appeal from a decision of the Migration Review Tribunal (“the MRT”) made on 17 December 2003 refusing an application for review of a refusal of a Business Skills (Residence) (Class BH) visa, subclass 840 (Business Owner). The central issue on the appeal is whether notification by the Minister of the refusal of an application for a visa is satisfied when the Minister sends by prepaid post a written notification to an address which is the last address for service provided by the applicant for the purpose of receiving documents, which the Minister knows will not bring the refusal to the attention of the applicant, but which the Minister knows will result in the letter of notification being returned undelivered.

2 It is asserted by the Minister that such notification satisfies the requirements of the Migration Act 1958 (Cth) (“the Migration Act”), with the consequence that the application for review of the refusal of that visa was not made within the prescribed period of twenty-one days from the date of the decision, and is ineligible. There is no power to extend the period within which an application for review might be made.

3 It was contended by Mr Stephen Sheaffe, counsel for the applicant, that the purported notification in the above circumstances was invalid, and that the application for review was made within the prescribed period, it being contended that the applicant received notification of the decision on 18 June 2003 and the application for review was made on 26 June 2003. Counsel for the applicant relies on subs 29(1) of the Acts Interpretation Act 1901 (Cth) (“the Acts Interpretation Act”) and a long line of cases in respect of that section, and its equivalent in other jurisdictions, for the contention that the purported notification by posting of letters to an address, which letters were undelivered and returned to the sender, was invalid.

Factual Background

4 The applicant, a citizen of the United States of America, entered Australia on a Business Visitor class V11 visa on 20 July 1990, which visa was valid until 25 July 1996. On 25 July 1996 he was granted a Temporary Business Entry (Class UC) visa, subclass 456 (Short Stay). On 3 September 1996 he was granted a Temporary Business Entry (Class UC) visa, subclass 457 (Long Stay). This visa was again granted on 2 August 2000 and is valid until 2 August 2004.

5 On 15 March 1999, the applicant made application to the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) for a Business Skills (Residence) (Class BH) visa, subclass 840 (Business Owner). This was a class of permanent visa provided for in Schedule 1, Part 1, Clause 1104A of the Migration Regulations. In support of that application, the applicant completed Form 1029. In that application form he gave his home address in Australia as “20/22 Concorde Pl Caboolture 4510”, and his address for correspondence about his application as “Box 3213 Clontarf 4019”. In answer to the question ‘Do you want all correspondence about this application to be sent to a person (such as an agent or lawyer) other than you?’, he entered a cross in the ‘No’ box.

6 In a letter dated 21 September 1999 to an officer of DIMIA, referring to information which had been requested by DIMIA, Mr Murphy notified the Department:

‘I have opened a new Post Office Box that is checked daily at:

Patrick M. Murphy

PO Box 627

Morayfield 4506

Queensland

Please update your file to reflect this change.’

7 On 4 October 1999, under a letterhead which showed his Morayfield Post Office Box number, Mr Murphy wrote to the Department enclosing a Police Certificate and a medical examination for an Australian visa in Form 26, which also showed his address as “P.O. Box 627 Morayfield, Qld 4506”.

8 On 14 October 1999 the application for a Business Skills (Residence) (Class BH) visa, subclass 840 (Business Owner) was refused by DIMIAon the grounds that the criteria in Clauses 840.213 and 840.214 of Schedule 2 of the Migration Regulations were not complied with. The applicant lodged an application for review with the MRT which heard his application on 25 October 2002. Mr Murphy asserts that in the course of this hearing he told the MRT his new address at Helidon.

9 On 19 November 2002, the MRT remitted the application back to DIMIA for reconsideration, with a direction that the Criteria in Clauses 840.213(2) and 840.214 of Schedule 2 of the Migration Regulations had been met. On the same day the MRT forwarded a letter dated 19 November 2002 to Mr Murphy c/- Beston & Co. Solicitors at Redcliffe advising that the application for the visa would be remitted to DIMIA and enclosing a statement of its decision and reasons. This covering letter from the MRT, while addressed to “Mr Patrick Michael Murphy C/- Mr B P Beston, Beston & Company, PO BOX 26, REDCLIFFE QLD 4020”, at the foot referred to the applicant’s address:

‘Mr Patrick Michael Murphy

103 Eagle Lane

Caboolture Airport

CABOOLTURE QLD 4510’

10 On 22 March 2003, a letter seeking further documentation was sent by a delegate of the Minister to the applicant at “103 Eagle Lane, Caboolture Airport, CABOOLTURE QLD 4510”, and to “PO Box 627, Morayfield QLD 4506”. These letters were returned to sender with ‘left address’ and ‘unknown at address’ notations on the envelopes.

11 On 30 April 2003, a delegate of the Minister, one Patricia Cruise, again rejected the applicant’s visa application. In a file note of 30 April 2003, Ms Cruise referred to the two letters of 22 March 2003 seeking further documentation which had been returned to sender with ‘left address’ and ‘unknown at address’ notations on the envelopes, and noted:

‘There has been no notification to the Department of a migration agent for the applicant or any other person authorised to act for the applicant.

At the risk of having the letter of notification of refusal similarly returned, I can only send the letter to the same addresses as previously.’

12 On 7 May 2003, the letter addressed to Mr Murphy at the Caboolture Airport address dated 30 April 2003 was returned to DIMIA with the words ‘left address’ recorded on the letter. While it does not appear in the appeal papers, this application proceeded on the basis that the letter addressed to the Morayfield Post Office Box address was similarly returned undelivered at about the same time.

13 In about May 2003, the solicitor for the applicant, Mr Beston, phoned DIMIA enquiring as to why a decision had not been received from them. DIMIA advised that the visa application had again been rejected. In May and June 2003, Mr Murphy spoke on a number of occasions to DIMIA, and on 13 June 2003, the applicant faxed to Patricia Cruise of DIMIA a letter which indicated his postal address as “PO Box 4765, Toowoomba East, Queensland 4350”, a telephone number, mobile telephone number and an email address, and in the body of the letter advised:

‘I have been informed this morning that you have made a decision in regards to my original Permanent Residency Application of March 1999. I understand that your decision is as of 30 April, 2003. Unfortunately, I never received this decision and was informed by a third party of it’s existence about an hour ago.

My postal address has not changed since September of 2000 and is at the top of this letterhead. I would appreciate a fax copy of your decision so that I can plan accordingly. I would also like to ask that you please send the original to the address above. My fax number is the same as the phone number above. 07-4697-6783.’

14 On 16 June 2003, Mr Murphy had a telephone conversation with Patricia Cruise, and on 18 June 2003, Ms Cruise wrote to Mr Murphy at the Toowoomba East Post Office Box address. That letter said:

‘I refer to our telephone conversation on 16 June and to your faxed letter of 13 June relating to the refusal of your application for a Business Skills (Residence) visa which had been lodged with this Department on 15.3.1999.

In these communications you indicated a new mailing address which unfortunately had not been notified to our office. Consequently the letters sent to your previous addresses, notifying you of the decision on your application, were returned to the Department.

Enclosed is the letter and accompanying decision record on your application.’

These documents were faxed to Mr Murphy on 18 June 2003.

15 The reasons for refusal focus on the criteria in Clause 840.212 of Schedule 2 of the Migration Regulations, and Regulation 1.11A of the Migration Regulations, dealing with an ownership interest in one or more qualifying business throughout any two periods of one fiscal year in the four fiscal years immediately preceding the making of the application. The reasons include the statement:

‘The applicant was asked to provide further relevant documentation to support his claims of ownership throughout two fiscal years. Letters were sent to his last known street address and his last notified mailing address on 22 March 2003 (ff 172-173). However both letters were returned to sender with the notations “left address” and “unknown at this address”.

To date, no further evidence has been received to confirm ownership claims. I therefore find that the applicant did not have an ownership share in 1 or more qualifying businesses throughout any 2 periods of 1 fiscal year in the 4 fiscal years immediately preceding the making of the application.’

16 On 26 June 2003 the applicant signed an application for review of that decision, and that application was received by the MRT on 27 June 2003.

17 On 17 December 2003 the MRT forwarded a letter to the applicant advising that ‘your application for review is ineligible as the application was not lodged within a prescribed time.’

18 The applicant claims he did not receive notification of the Delegate’s decision until 18 June 2003, and therefore his application on 27 June 2003 was within time. Mr Matthew Brady, counsel for the Minister, claims that the MRT was correct in concluding that Mr Murphy had been notified of the decision when the letters of notification of the refusal of his application were posted on 30 April 2003, that this notification was effective for the purposes of the Migration Act, and that the time for lodging an application for review commenced to run, in accordance with the Migration Act, after seven working days after the date of the document.

19 The combined effect of subs 474(1) the Migration Act and the decision of the High Court in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 is that the Federal Court has jurisdiction to grant relief under s 39B of the Judiciary Act 1903 (Cth) and with reference to s 475A of the Migration Act, only where there has been a jurisdictional error made by the MRT. The decision of the MRT in this case was based on its finding that the application for review was not made within the prescribed period. This in turn depended on a finding that the applicant had been notified of the decision for the purposes of the Migration Act in early May 2003. This finding, in my opinion, is a jurisdictional fact and if the MRT was in error in its finding concerning this fact, then relief is available to the applicant, notwithstanding s 474 of the Migration Act.

Legislative Framework

20 Subsection 66(1) of the Migration Act provides:

‘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.’

21 Regulation 2.16(3) of the Migration Regulations provides:

‘The Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in s 494B of the Act.’

22 Subsection 347(1)(b)(i) of the Migration Act provides:

‘(1) An application for review of an MRT-reviewable decision must:

…

(b) be given to the Tribunal within the prescribed period, being a period ending not later than:

(i) if the MRT-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A) – 28 days after the notification of the decision;’

23 The decision in question is covered by subs 338(2) of the Migration Act, which provides that a decision is an MRT-reviewable decision if, inter alia, it relates to a visa which could have been granted while the applicant was in the migration zone, and the applicant made the application while in the migration zone.

24 Regulation 4.10(1)(a) of the Migration Regulations provides that the prescribed period for the purposes of subs 347(1)(b) of the Migration Act is, in respect of MRT-reviewable decisions mentioned in subs 338(2) of the Migration Act, twenty-one days after the day on which notice is received.

25 Section 494B of the Migration Act relevantly provides:

‘(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:

…

(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

(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.

…

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

(a) fax; or

(b) e-mail; or

to the last fax number, e-mail address or other electronic address, as the case may be, provided to the Minister by the recipient for the purposes of receiving documents.’

26 Section 494C of the Migration Act relevantly provides:

‘(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).

…

(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.

…

(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.’

27 The submissions for the Minister are succinct. It was submitted that in the original application for a visa lodged 15 March 1999, the applicant stated that his home address was “20/22 Concord Place, Caboolture, Queensland, 4510”and his address for correspondence about the application was “Box 3213 Clontarf 4019”, and he expressly said that he did not want correspondence about the application sent to a person, such as an agent or lawyer, other than himself. By letter dated 21 September 1999 the applicant advised DIMIA he had opened a new Post Office Box that was checked daily. That address was “Patrick M. Murphy, PO Box 627, Morayfield, 4506 Queensland”. It was submitted that this was the last address for service provided to the Minister by the applicant for the purpose of receiving documents. I should note that that letter, in addition to having the information about his new Post Office Box, also had in its letterhead, after the details of the Morayfield Post Office Box, the following:

‘Telephone: 07 54992633 Fax: 07 54992733

Email: patrick@mindbridge.com.au’

28 The letter of the Minister’s delegate refusing to grant the visa is dated 30 April 2003. The document was dispatched to the Morayfield Post Office Box address within three working days of the date of the letter by prepaid post. In fact, it was despatched on 30 April 2003. A copy was also sent to the address “103 Eagle Lane, Caboolture Airport, Caboolture”. It was therefore submitted that the letter of 30 April 2003 was sent in accordance with the requirements of subs 494B(4) of the Migration Act, both under subparagraphs (4)(c)(i) and (4)(c)(ii).

29 It was submitted that the circumstance that the letters were returned undelivered on 7 May 2003 is irrelevant. The contention on behalf of the Minister is that the effect of subs 494C(4) of the Migration Act is that the letter is taken to have been received by the applicant seven working days after 30 April 2003, that is, 12 May 2003. Accordingly, it was said on behalf of the Minister that the application for review to the MRT ought to have been filed no later than 2 June 2003. The application for review to the MRT was not made until 27 June 2003, some twenty-five days late.

30 It follows that the application for review to the MRT was lodged outside the prescribed period set out in the Migration Act and Regulations. The terms of subs 347(1) of the Migration Act are mandatory. The application for review must be given within the prescribed period. There is no statutory discretion given to the MRT to accept applications made outside the prescribed period.

31 In Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 305, Madgwick J with whom Merkel and Conti JJ agreed, said (at par 10) that it was common ground that if the application was made outside the prescribed period, then it was not properly made under s 347 of the Migration Act.

32 The Minister thus submits that there has been no jurisdictional error on the part of the MRT in reaching its decision; that the application was ineligible as being lodged outside the period prescribed by statute; and that the application ought therefore be dismissed with costs.

33 It was contended by the applicant that the Minister should have notified Mr Murphy effectively by resorting to what is called the Helidon address, which Mr Murphy says he told the MRT, but which does not appear in any communication from the MRT to the Department or to Mr Murphy. There is just no evidence that this address was ever communicated by anybody – the MRT, Mr Murphy or anybody else to the Minister. Alternatively, it is contended by the applicant that the Minister should have attempted to effect service on him at the addresses which were recorded by him in his Immigration Departure Cards or his Immigration Arrival Cards on the occasions when he exited and entered Australia. That contention can be summarily rejected: there was no such duty on the Minister.

34 The applicant then relies on subs 29(1) of the Acts Interpretation Act 1901 (Cth) (“the Acts Interpretation Act”) and a line of cases dealing with its interpretation and the interpretation of its equivalent in other jurisdictions. Subsection 29(1) of the Acts Interpretation Act relevantly provides:

‘Where an Act authorizes or requires any document to be served by post, whether the expression “serve” or the expression “give” or “send” or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected by properly addressing prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.’

35 Section 2 of the Acts Interpretation Actprovides:

‘(1) Except so far as the contrary intention appears, this Act applies to all Acts, including this Act.

…’

There is no doubt that the Acts Interpretation Act applies to the Migration Act 1958 (Cth).

36 In R v County of London Quarter Sessions Appeals Committee; Ex parte Rossi [1956] 1 QB 682 (“Rossi”), a clerk of the peace to a quarter sessions appeals committee gave notice of the date fixed for an adjourned hearing by sending by post ‘in a registered letter addressed to him at his last or usual place of abode’, as permitted by subs 3(1) of the Summary Jurisdiction (Appeals) Act 1933 (U.K.). The letter was returned to the sender marked ‘Undelivered … No response’. The undelivered letter was before the Court, but the Court accepted the evidence of the appellant that the respondent was evading service, heard the appeal in his absence, and made an order against him. The Court of Appeal allowed an appeal from the Divisional Court and an order of certiorari was granted to quash the proceedings. Denning LJ referred (at 690-691) to the terms of subs 3(1) of the Summary Jurisdiction (Appeals) Act 1933 (U.K.) which relevantly provided:

‘A notice required by this subsection to be given to any person may be sent by post in a registered letter addressed to him at his last or usual place of abode.’

He continued later at 691:

‘The clerk of the peace … sent a letter by registered post to Mr. Rossi telling him the date, time and place of the adjourned hearing; but it was returned to him unopened and undelivered. In those circumstances was the Act complied with? Did the clerk of the peace “in due course give ‘notice’” to Mr. Rossi? It is argued that it is sufficient to comply with section 3(1) if he sends a registered letter to the respondent, even though it is not received by him, and known not to be received. I do not think this is correct. When construing this section, it is to be remembered that it is a fundamental principle of our law that no one is to be found guilty or made liable by an order of any tribunal unless he has been given fair notice of the proceedings so as to enable him to appear and defend them. The common law has always been very careful to see that the defendant is fully apprised of the proceedings before it makes any order against him. …’

And at 692 Denning LJ said:

‘… when the case was called on for hearing … it was essential for counsel for [the applicant] to prove service of the notice in accordance with section 3(1) of the Act. He had to prove that the clerk of the peace had in due course given Mr. Rossi notice of the date, time and place of the hearing. This could be done by proof that a notice had been sent to him in good time by post in a registered letter which had not been returned, for it could then be assumed that it had been delivered in the ordinary course of post; see section 26 of the Interpretation Act, 1889. But once it appeared that the letter had been returned undelivered, then it was quite plain that he had not been given notice at all of the date, time and place of the hearing. In short, service had not been effected; and the court should not have entered upon the hearing at all.’

Denning LJ summarised at 694:

‘To sum up, when service of process is allowed by registered post, without more being said on the matter, then if the letter is not returned, it is assumed to have been delivered in the ordinary course of post and any judgment or order by default obtained on the faith of that assumption is perfectly regular. It will not as a rule be set aside except on payment of costs and showing of merits: see T.O. Supplies (London) Ltd. v. Jerry Creighton Ltd. [1952] 1 K.B. 42; [1951] 2 T.L.R. 42; [1951] 2 All E.R. 992. But if the letter is returned undelivered and nevertheless, notwithstanding its return, a judgment or order by default should afterwards be obtained, it is irregular and will be set aside ex debito justitiae. The order of quarter sessions here was irregular because there was no proper service and it should be set aside.’ (Emphasis added)

37 Section 26 of the Interpretation Act 1889 (U.K.) is in almost identical terms to subs 29(1) of the Acts Interpretation Act.

38 Morris LJ said in Rossi at 697-698:

‘Applying the provisions of section 26 of the Interpretation Act, since no contrary intention appears from the Act of 1933, the sending of the notice to Mr. Rossi was deemed to be effected by properly addressing, prepaying and posting the letter which contained the document. Then by the concluding words of section 26, the sending of the notice was deemed, unless the contrary was proved, to have been effected at the time at which the letter would have been delivered in the ordinary course of post. But here the contrary was proved. It was proved, not merely that the letter was not delivered in the ordinary course of post but that the letter was not delivered at all. Service cannot in this case be deemed “to have been effected” at some particular time, i.e., in the ordinary course of post: service was proved not to have been effected at all. When considering the giving of a notice of a hearing of an appeal the element of time is clearly of importance: the notice must be given at such time as will enable a party to be present at a hearing. Here it was not.

The primary obligation imposed by section 3 is to “give ‘notice’”: in this context that denotes informing the parties interested: one permissive way in which that may be achieved is by sending a registered letter: normally that permissive way succeeds, … But by the operation of the Interpretation Act on the uncontested facts in this case it is shown that the procedurally correct permissive method by which it was sought to inform Mr. Rossi that the hearing of the appeal would be on September 28 did not achieve its purpose: the attempt to give notice by post failed: it was shown not to have been effected that way. Though a letter was sent it did not arrive. “A notice” was sent, but Mr. Rossi was not given notice.’

39 In Saga of Bond Street Ltd. v Avalon Promotions Ltd. [1972] 2 QB 325 (“Saga”), the appellant (Saga) had issued a writ for the amount of a bill of exchange and the writ was sent through the post in a prepaid envelope addressed to the registered office of the respondent company (Avalon). Judgment was entered in default of appearance on 30 December 1969 and subsequent to the entry of judgment, on 5 January 1970, the envelope containing the writ was returned through the dead letter office marked ‘Not known’. Salmon LJ in the Court of Appeal held that the judge in chambers was wrong in holding the service of this writ bad, citing subs 437(1) of the Companies Act 1948 (U.K.) which provided:

‘A document may be served on a company by leaving it at or sending it by post to the registered office of the company’.

Salmon LJ, at 327 agreed with the passage from the judgment of Denning LJ in Rossi that:

‘… if the letter is returned undelivered and nevertheless, notwithstanding its return, a judgment or order by default should afterwards be obtained, it is irregular and will be set aside ex debito justitiae.’

Salmon LJ continued at 327:

‘In the present case, the judgment by default was obtained not after but before the writ came back through the dead letter office; and, in my view, the service of this writ was undoubtedly regular.’

40 In Fancourt v Mercantile Credits Limited (1983) 154 CLR 87 (“Fancourt”), notices were posted to hirers ‘care of the post office Sapphire in the State of Queensland’ which was the postal address of their place of residence last known to the sender. The hirers denied receipt of the notices. Subsection 42(1)(c) of the Hire Purchase Act 1959 (Qld) provided that a notice that is to be served on or given to a hirer under that Act may be served or given (inter alia) by posting it addressed to him at his last known place of abode or business.

41 Subsection 39(1) of the Acts Interpretation Acts 1956 to 1962 (Qld) was to the same effect as subs 29(1) of the Acts Interpretation Act.

42 The High Court held that the notices had been properly served. The High Court (Mason, Murphy, Wilson, Deane and Dawson JJ) said at 96-97:

‘There is a line of cases, commencing with Reg. v. County of London Quarter Sessions Appeals Committee; Ex parte Rossi [1956] 1 Q.B. 682, which deal with the effect of proof of non-delivery where service by post is permitted and used, having regard to s. 26 of the Interpretation Act 1889 (U.K.). That section is the equivalent of s. 39(1) of the Queensland Acts Interpretation Acts. The effect of the cases appears to be that proof of non-delivery means that service cannot be deemed to have taken place under the second limb of the section at the time of delivery in the ordinary course of the post and cannot be established as having taken place at any other time. The consequence is that where it is necessary to establish service at a particular time, proof of non-delivery is as effective as proof of non-service, notwithstanding that service by post is in the circumstances permitted and the requirements of the Interpretation Act are observed: see Beer v. Davies [1958] 2 Q.B. 187; Hewitt v. Leicester Corporation [1969] 1 W.L.R. 855; [1969] 2 All E.R. 802; Saga Ltd. v. Avalon Promotions [1972] 2 Q.B. 325n.; A./S. Cathrineholm v. Norequipment [1972] 2 Q.B. 314; cf. Lombard Australia Ltd. v. Mohrwinkel (1973) 21 F.L.R. 277; 1 A.C.T.R. 57. It may be thought that there is an anomaly in such a result because it means that, notwithstanding the adoption of a permitted means of service, the service is nevertheless ineffective if there is proof of non-delivery. It is, however, unnecessary to pursue these decisions here save to remark that they are all cases in which delivery was disproved. Despite remarks in the judgments about non-receipt, it was non-delivery which was significant because the second limb of s. 26 of the Interpretation Act refers to proof of the contrary of delivery. As the present case shows, delivery may be different from receipt by the intended recipient and, provided that delivery is not disproved, the fact of non-receipt does not displace the result that delivery is deemed to have been effected at the time at which it would have taken place in the ordinary course of the post. There is here no evidence of non-delivery. It follows that the application of s. 39(1) of the Acts Interpretation Acts in no way affects the proof of service of the notices in this case in accordance with s. 42(1)(c) of the Hire-Purchase Act and that such service is deemed to have taken place in the due course of the post.’

43 In Re Otway Coal Co. Ltd. [1953] VLR 557, O’Bryan J in the Supreme Court of Victoria was concerned with the question of whether a receiver to a company had served an application on the company. Service of the summons on the company was purported to be effected by sending it by prepaid post to the address appearing in the office of the Registrar-General as the company’s registered office.

44 O’Bryan J at 563 said:

‘This company did once have a registered office and notice of its situation (viz.: the address to which these papers were sent) had been filed with the Registrar-General who recorded the same (sec. 92(1)(c)), and that record remains unaltered. But this office has long since been given up and since 1937 at the latest the company has had no office, registered or otherwise.’

Documents sent by post to that address were held by O’Bryan J to be documents ‘not left at or sent by post to the registered or any other office of the company’. In a comment which has a resonance to the facts of the present case, O’Bryan J continued at 563:

‘The Companies Act, secs. 92 and 93, which provide for the company having a registered office, do not, nor does any other part of the Act so far as I am aware, provide that once the company has given to the Registrar-General notice of the company’s registered office, the company is deemed until the Register is altered to have its registered office at that address. Section 295 contains special provisions for service of notices under that section, but these provisions are indigenous to proceedings under that part. Likewise rule 18 of the Companies Rules 1943 contained special provisions as to service of a petition for winding up, and in regard to that rule Palmer’s Company Law (19th ed.), p. 384, says that when it is impracticable to serve the petition, e.g., when the company’s registered office is closed or pulled down, the Court will make a special order, e.g., to serve upon one or two officials connected with the company, and direct that such service should be deemed to be served on the company.’

His Honour’s conclusion as to service were expressed at 563 as follows:

‘There can be no question of estoppel in this case. The plaintiff knew the facts about the company perfectly well. He was not misled by what appears at the Registrar-General’s office. He knew that the company had no office and that when these papers were posted to the address appearing at the Registrar-General’s office as that of the company’s registered office, they would inevitably come back, as they did, through the dead letter office. This purported service therefore, in my opinion, did not comply with the provisions of the Companies Act, sec. 388.’

45 His Honour then proceeded to make an order for substituted service.

46 In A/S Cathrineholm v Norequipment Trading Ltd. [1972] 2 QB 314, the Court of Appeal (Lord Denning MR, Roskill LJ and Sir Gordon Willmer) held that as the plaintiffs had sent the writ by prepaid post to a company’s registered office and it was not returned, it must be deemed to have been delivered and served in the ordinary course of post, and as no appearance had been entered in due time, the judgment obtained on the faith of that assumption was regular and the defendants could not have it set aside ex debito justitiae but only in accordance with settled practice, by showing on affidavit a defence on the merits and paying the costs thrown away.

47 Lord Denning MR said at 322:

‘In this case the plaintiffs signed a perfectly regular judgment. The defendants have brought it all on themselves by their own fault. They did not enter the change of address on the register as they should have done. If they wish to set aside this judgment, they must show merits.’

48 Roskill LJ, at 324, confronted the difference in approach of Salmon LJ in Saga, and his dissenting judgment in Thomas Bishop Ltd v Helmville Ltd [1972] 1 QB 464 (“Thomas Bishop”), and expressed agreement with the dissenting judgment of Orr LJ in Thomas Bishop. In Thomas Bishop, Orr LJ said that the crucial point of time in deciding whether the judgment was regularly obtained, is the time when the judgment was given or signed, and that if at that time there was nothing known to the court or the plaintiff whose duty it would be to communicate it to the court which indicates that the relevant process had not been delivered in the ordinary course of post, it is to be deemed as having been so delivered for the purposes of that judgment. Roskill LJ concluded at 324:

‘Where [a judgment] has been regularly obtained, it seems to me that the defendant must show that he has a defence on the merits before he is entitled to have the judgment set aside.’

49 In Re Rustic Homes Pty Ltd (1988) 13 ACLR 105, von Doussa J was concerned with a case where a summons for the winding up of a company was sent to its registered office, but had been returned to the sender undelivered by the postal authorities. His Honour held that evidence that a document which has been posted has been returned by the postal authorities undelivered shows that service has not occurred.

50 His Honour referred to the observations of the High Court in Fancourt, and said at 108:

‘Although the High Court did not expressly approve the line of cases commencing with R v County of London Quarter Sessions Appeals Committee; Ex parte Rossi, it did not disapprove those decisions. In Re Gasbourne, [(1984) 8 ACLR 618] Nicholson J followed those decisions, and in my view I should also follow them. In the present case there is evidence of non-delivery of the summons. Section 15 [a section of the Companies and Securities (Interpretation and Miscellaneous Provisions) (SA) Code, which is substantially the same as s 29 of the Acts Interpretation Act] does not therefore deem the mode of service adopted to be effective service.’

51 In Re Gasbourne Pty Ltd [1984] VR 801, Nicholson J in the Supreme Court of Victoria had been concerned with a case where a petitioning creditor on a winding up of what was known as “bottom of the harbour” companies had purported to effect service by post pursuant to the provisions of s 528 of the Companies Code (Vic). In each case service had been effected on a registered office which was either non-existent or was not a place in which the company was giving attendance. In each case these facts were known to the solicitors for the respective plaintiffs and were known, at the latest, prior to the time the judgment was entered. In many cases the writs had in fact been returned to the solicitors by Australia Post prior to the entry of judgment. In no case were these facts disclosed by the affidavits of service filed with the court.

52 In Re Ocean Distributors Pty Ltd [1990] 2 ACSR 486, MacKenzie J was concerned again with questions of service of a notice sent by post to the registered office of a company and with the effect of s 15 of the Companies and Securities (Interpretation and Miscellaneous Provisions) (Qld) Code which is in terms substantially the same as s 29 of the Acts Interpretation Act. Accountants in the case gave evidence that no notice had been received by them, but none of the correspondence had been returned as undelivered to the receiver and manager. MacKenzie J held that the Court was satisfied that the notices had been served.

53 So, too, in Deputy Commissioner of Taxation v Coco (2003) 52 ATR 700, the respondent expressed the belief that he did not receive a particular document. It was held by Mullins J that in the absence of non-delivery, the propounded belief was not sufficient to displace the presumption of service contained in s 29 of the Acts Interpretation Act.

54 In Repatriation Commission v Gordon (1990) 100 ALR 255, the facts were different from the present in that the documents there relevant were not returned undelivered, nor did the sender know that the applicant did not reside at the address at the time of posting. Nonetheless, I expressed my view of s 29 of the Acts Interpretation Act at 265:

‘In the view I take of s 29, there is a statutory presumption that what is proved to have been properly despatched by post arrived at the usual time, but that non-delivery at that time, or non-delivery at all, might be proved by evidence ….’

55 The present case is a case where the documents were returned undelivered to DIMIA, and at the time when the delegate of the Minister posted the documents, she knew that neither the address at Morayfield nor the address at Caboolture to which the documents were posted was the postal address of Mr Murphy. Further, this is a case where the documents were returned to DIMIA undelivered at a time before the provision deemed service to have been effected.

56 The response by the Minister to the authorities on which the applicant relies can be shortly stated.

57 Mr Matthew Brady, counsel for the Minister, submitted that even in the case of non-delivery, s 29 of the Acts Interpretation Act had no application, because subs 494C(4) of the Migration Act provides that Mr Murphy is taken to have received the document seven working days after the date it bears. This provision evidences a contrary intention to the second limb of s 29 of the Acts Interpretation Act. Mr Brady relies on two cases, in neither of which was the case presently at issue directly raised.

58 In NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184 (“NADK”), the Refugee Review Tribunal (“the RRT”) had invited the applicant to make oral submissions at a hearing that was scheduled to take place on 13 November 2001. This letter (of invitation) was sent on 11 September 2001 by registered mail to the applicant at the address of his migration agent, the address for service he had nominated in his application to the RRT. A copy of the letter was also sent to the applicant at his residential address, as specified in the same application. The applicant confirmed at the hearing before the Full Court that his residential address had not changed in the meantime.

59 The Full Court (Tamberlin, Sackville and Hely JJ) said at par 6:

‘On 8 October 2001, the applicant’s migration agent wrote to the RRT informing it that the applicant did not wish to make any oral submissions at the scheduled hearing. Accordingly, the RRT proceeded to make its decision entirely on the papers. It can be inferred from the terms of the agent’s letter that the agent had received the RRT’s letter of 11 September 2001.’

The Full Court noted at par 14:

‘It seems somewhat curious that the applicant was not told by the migration agent of the impending hearing before the RRT, given that the agent notified the RRT in writing that the applicant did not wish to take advantage of its invitation to appear at the hearing. Nonetheless, we are prepared to assume for the purposes of the application for an extension of time that the applicant’s claim that he was not told of the hearing date is correct.’

The Full Court further noted at par 16:

‘The RRT’s invitation was sent by prepaid post to the applicant at the address for service nominated by him and a copy was sent by the same means to his residential address. The RRT therefore complied with both s441A(c)(i) and s441A(c)(ii), notwithstanding (as we are prepared to assume) the applicant was not himself told of the hearing and did not receive the letter sent to his home address. Accordingly, there is no basis for concluding that the primary Judge was in error in holding that the asserted fact that the applicant was unaware of the RRT’s hearing was of no legal relevance.’

60 NADK is thus a case where there was in fact compliance with two methods of service contained in s 441A of the Migration Act, and is not a case of non-delivery, let alone a case of knowing non-delivery.

61 In VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 (“VNAA”), the appellants gave their home address as ‘23 Wentworth Auburn 2144’ and their mailing address as ‘PO Box K412 Haymarket 1240’. No telephone number was provided, and the appellants did not complete that part of the application form providing for nomination of ‘someone to receive correspondence and to act on your behalf’.

62 By letter of 21 May 2002 addressed to the male appellant at the mailing address shown on the application, the RRT amongst other things stated that they must advise the RRT of any change in their home address or mailing address, and if they did not, their case may be decided in their absence.

63 Sundberg and Hely JJ in their reasons for judgment in the Full Court said at par 4:

‘On 10 October 2002 the Tribunal sent by registered post to the appellants at their mailing address and residential address “23 Wentworth St Auburn NSW 2144” a letter stating that on the material before it the Tribunal was unable to make a decision in their favour, and inviting them to come to a hearing to give oral evidence and present arguments in support of their claims. Details of the time and place of the hearing were given. The letter sent to the residential address was returned marked “Return to Sender” and “no such address”. The appellants claimed that they did not receive either letter. There is no evidence indicating by whom the letter to the mailing address was received.’

64 Section 425 of the Migration Act relevantly provides:

‘(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2) Subsection (1) does not apply if:

(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it …’

65 Sections 441A and 441C of the Migration Act are, in essential respects, the same as ss 494B and 494C in the present case. In VNAA their Honours noted at par 9:

‘The primary judge noted that compliance with s 425 is a precondition to the valid exercise of the Tribunal’s jurisdiction, so that failure to comply is a jurisdictional error: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 198 ALR 295.’

Their Honours later held at par 15:

‘There was no breach of s 425, as alleged in the notice of appeal. The Tribunal invited the appellants to appear to give evidence and present arguments. The invitation and the notice of the time and place of the hearing were embodied in the one document, as ss 425 and 425A contemplate. See NAOZ at [19]. They were sent to the appellants´ address for service at their last residential address appearing on their application for review. By force of s 441C(4) they are taken to have received the document seven working days after the date it bears. As the primary judge said, the fact that they did not become aware of the invitation does not displace the effect of s 441C. A Full Court so decided in NADK v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184 at [14]-[16].’

66 Again, VNAA is not a case of non-delivery of an invitation and a notice, still less a case of a knowing non-delivery.

67 If s 29 of the Acts Interpretation Act applies to the circumstances of the present case, I am quite satisfied that service has not been effected in the circumstances of this case, where the document was returned undelivered at a time prior to when the Migration Act says service is to be taken to have been effected.

68 However, in my view, s 29 of the Acts Interpretation Act has no application in the present case, because in my judgment, s 494C of the Migration Act manifests a contrary intention to that expressed in s 29 as to service by post. It will be recalled that subs 494B(4) of the Migration Act provides:

‘(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

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

(ii) the last residential … address provided to the Minister by the recipient for the purposes of receiving documents.’

69 The person is “taken to have received the document”, in the circumstances of this case, seven working days after the date of the document. In my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification. There is nothing to indicate that the effect of the subsection is to be read as if there was a proviso that the person was not taken to have received the document where the documents had been returned undelivered to the sender within seven working days after the date of the document, or that the subsection operates in its terms only “until the contrary is proved”.

70 The same considerations apply in relation to subs 441C(4) of the Migration Act.

71 I accept that this conclusion means, in circumstances like the present, that the requirements of notification to a person descend to a ritualistic and solemn farce. That, however, is a consequence that lies directly at the feet of the applicant, who failed to inform DIMIA of any relevant change of address, and so has brought about the present situation by his own misfeasance.

72 If an applicant for a visa could postpone the operation of any decision, by department the last address for service or the last residential or business address provided by that applicant to the Minister for the purposes of receiving documents, and not notifying the Minister of his new address for service, or his new residential address, with the consequence that any documents posted to the earlier addresses would be returned to DIMIA undelivered, the Minister would effectively be precluded from the mandatory requirement in s 66(1) of the Migration Act and Regulation 2.16(3) of the Migration Regulations. There is no provision for substituted service in the Migration Act.

73 In my judgment the application has to be dismissed. Unless submissions are received within seven days from either party seeking to contend to the contrary, I order that the applicant pay the respondent’s costs of and incidental to the application, to be taxed if not agreed.

I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated: 25 May 2004

Counsel for the Applicant:	Mr Stephen Sheaffe

Solicitor for the Applicant:	Beston & Company Solicitors

Counsel for the Respondent:	Mr Matthew Brady

Solicitor for the Respondent:	Blake Dawson Waldron

Date of Hearing:	19 May 2004

Date of Judgment:	25 May 2004

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