FEDERAL COURT OF AUSTRALIA

Pomare v Minister for Immigration and Citizenship [2008] FCA 458

ADMINISTRATIVE LAW – appeal from decision of Administrative Appeals Tribunal – Tribunal had held it lacked jurisdiction because application to it had been made outside statutory time limit – time limit in s 500(6B) of Migration Act 1958 (Cth) of nine days after day on which person notified of decision “in accordance with subsection 501G(1)” – s 501G(1) required giving of notice stating “where the application for review can be made” – notice referred only to post office box.

Held:  (1) notice was required to state address of registry office where application for review could be received by Tribunal;  (2) failure of notice to state where application for review could be made had effect that nine day time limit had not commenced to run;  (3) Tribunal’s decision set aside and matter remitted to Tribunal.

MIGRATION – appeal from decision of Administrative Appeals Tribunal – Tribunal had held it lacked jurisdiction because application to it had been made outside statutory time limit – time limit in s 500(6B) of Migration Act 1958 (Cth) of nine days after day on which person notified of decision “in accordance with subsection 501G(1)” – s 501G(1) required giving of notice stating “where the application for review can be made” – notice referred only to post office box.

Held:  (1) notice was required to state address of registry office where application for review could be received by Tribunal;  (2) failure of notice to state where application for review could be made had effect that nine day time limit had not commenced to run;  (3) Tribunal’s decision set aside and matter remitted to Tribunal.

Migration Act 1958 (Cth) ss 500(6B), 501G(1)

Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1292 followed

Zhan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 469 followed

CODY POMARE v MINISTER FOR IMMIGRATION AND CITIZENSHIP

AND ADMINISTRATIVE APPEALS TRIBUNAL

NSD 65 of 2008

LINDGREN J

9 APRIL 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The decision of the Administrative Appeals Tribunal made on 19 December 2007 in proceeding 2007/5329 be set aside.

2.                  The matter be remitted to the Administrative Appeals Tribunal to be heard and determined in accordance with law.

3.                  The first respondent pay the applicant’s costs.

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

REASONS FOR JUDGMENT

Introduction

1                     The applicant (Mr Pomare) appeals from a decision of the Administrative Appeals Tribunal (Tribunal) given on 19 December 2007.  The Tribunal decided that it had no jurisdiction to hear Mr Pomare’s application to it for a review of a decision of a delegate of the first respondent (Minister).

2                     The appeal raises the question of whether the Tribunal was correct to decide that it lacked jurisdiction because the application to the Tribunal was lodged outside the nine day period referred to in s 500(6B) of the Migration Act 1958 (Cth) (the Act).

3                     For the reasons that appear below, in my opinion Mr Pomare was not notified of the Minister’s decision in accordance with s 501G(1) of the Act, and so the nine day period did not begin to run.  In the result, the reason given by the Tribunal for holding that it lacked jurisdiction was not a valid reason, and the matter should be referred back to the Tribunal to be heard and determined in accordance with law.

4                     The second respondent entered an appearance submitting to such order as the Court might make save as to costs.

Background

5                     Mr Pomare is a citizen of New Zealand, is unmarried and has no children.  He first arrived in Australia on 26 August 2005.  He holds a Class TY Subclass 444 Special Category visa.  He has remained in Australia since his arrival, except for a nine month absence from November 2005 to August 2006. 

6                     On 15 February 2007, Mr Pomare was convicted at Broken Hill District Court of robbery using corporal violence and was sentenced to two years and three months imprisonment with a non-parole of 12 months.

7                     Subsection 501(2) of the Act provided that the Minister could cancel a visa that had been granted to a person if the Minister reasonably suspected that the person did not pass the character test, and the person did not satisfy the Minister that the person passed the character test.  On 11 October 2007, a delegate of the Minister cancelled Mr Pomare’s visa.  It is not in dispute that the conditions laid down in s 501(2) were satisfied.

8                     Paragraph 500(1)(b) of the Act provided that an application could be made to the Tribunal for a review of a decision of a delegate of the Minister under s 501.  It is not disputed that Mr Pomare had a right to have the delegate’s discretionary decision to cancel his visa reviewed by the Tribunal.  Subsection 500(6B) provided:

If a decision under section 501 of this Act 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.

9                     Mr Pomare was “in the migration zone” at all relevant times.  The various provisions in the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) referred to in s 500(6B) were provisions allowing the Tribunal to extend time for the making of applications for review to the Tribunal.  It follows from their exclusion that the nine day time limit could not be extended.

10                  Subsection 501G(1) of the Act provided that if a decision was made under, relevantly, s 501(2) of the Act to cancel a visa granted to a person, the Minister was required to give the person a written notice that set out the decision and met other requirements as to the content of the notice.  Paragraph 501G(1)(f) provides, relevantly, that in relation to a decision made by a delegate of the Minister under s 501(2) which the person had a right to have reviewed by the Tribunal, the notice was required, inter alia, to be one that:

(iv)       states where the application for review can be made; and

(v)        ... sets out the effect of subsections 500(6A) to (6L) (inclusive); …

11                  By letter dated 11 October 2007, an officer of the Department of Immigration and Citizenship wrote to Mr Pomare at the John Morony Correctional Centre, Locked Bag 654, Windsor NSW 2756, advising him that a delegate of the Minister cancelled his visa on 11 October 2007, and that a notice setting out reasons for the cancellation, including all matters considered by the delegate when making his decision, would be sent to Mr Pomare shortly. 

12                  On 17 October 2007 the foreshadowed further notice was delivered by hand to Mr Pomare.  An acknowledgment of receipt of the “Notice of visa cancellation under subsection 501(2) of the Migration Act 1958” was signed by Mr Pomare and witnessed on 17 October 2007. The question that arises on the appeal is whether on 17 October 2007, Mr Pomare was notified of the cancellation decision “in accordance with subsection 501G(1)” (see s 500(6B) of the Act).  The Tribunal proceeded on the basis that he was.  If the Tribunal was correct to proceed on that basis, Mr Pomare’s application for review, which was not received by the Tribunal until 1 November 2007, was received outside the nine day time limit (which expired on 26 October 2007) and the Tribunal lacked jurisdiction in respect of the application.

13                  The Minister does not dispute that if the notice that was delivered to Mr Pomare on 17 October 2007 was not in accordance with s 501G(1) of the Act, the nine day time limit did not begin to run.

Consideration

14                  On the hearing of the appeal, Mr Pomare filed in Court with leave an amended notice of appeal stating as questions of law the following:

(i)         whether the facts fully found by the AAT…fell within sub-para 501G(1)(f)(iv) of the Migration Act 1958

(ii)        whether the facts fully found by the AAT…fell within sub-para 501G(1)(f)(v) of the Migration Act 1958

(iii)       whether the AAT had jurisdiction, under s 500(1)(b) of the Migration Act 1958, to hear the application before it dated 18 October 2007 and lodged with the AAT on 1 November 2007.

15                  Questions (i) and (ii) are aspects of question (iii).

Did the notice comply with subpara 501G(1)(f)(iv) of the Act?

16                  The letter that was delivered by hand to Mr Pomare on 17 October 2007 enclosed various documents, one of which was headed “INFORMATION ABOUT REVIEW RIGHTS FOR VISAS CANCELLED UNDER SECTION 501 OF THE MIGRATION ACT 1958”.  The first paragraph in that document stated:

The decision to cancel your visa under s501 of the Migration Act can be reviewed by the Administrative Appeals Tribunal (AAT) if the decision was made by a delegate of the Minister of the [sic] Immigration & Citizenship.

17                  Under the heading “HOW TO APPLY FOR REVIEW”, the following appeared:

To apply to the AAT for a review of the decision, you can either:

·        Write to the AAT and explain the details of the decision and the reasons you seek a review, or

·        Complete an application form obtainable from the AAT that outlines all of the information required.

Your application for review must be accompanied by a copy (or the original) of the document notifying you of the decision plus a set of all the documents given to you at the time of notification of the decision.  Unless you do this your application for review will be invalid.

The address of the AAT office in Victoria is listed overleaf.  There is a fee payable when you apply for a review.  This fee can sometimes be waived.  More information about fees can be obtained from the AAT.

(emphasis in original)

18                  The sentence “The address of the AAT office in Victoria is listed overleaf” is bewildering.  Mr Pomare was incarcerated in New South Wales.  Moreover, what appeared overleaf was the following:

ADMINISTRATIVE APPEALS TRIBUNAL OFFICE

Information may be obtained by calling at your local Tribunal, by writing to the Tribunal at GPO Box 9955 in the capital city of your State, or by telephoning the local-call-fee-only number provided.

Postal Address:  GPO Box 9955

Telephone: 1300 366 700.

19                  The terms of para (f) of s 501G(1) make it plain that is it not a compliance with subpara (f)(iv) of s 501G(1) of the Act merely to state that a person has a right to have a cancellation decision reviewed by the Tribunal. The notice must, in addition, state “where” the application to the Tribunal for review can be made.

20                  The AAT Act does not throw much light on the answer to the question where the application to the Tribunal for review can be made.  Subsection 29(1) of the AAT Act provides only that an application to the Tribunal for a review of a decision must be, relevantly, in writing and may be made in accordance with the prescribed form.

21                  It was, correctly, common ground on the appeal that an application to the Tribunal is not “made” until it is received by the Tribunal.  In my opinion, in order to state where an application for review by the Tribunal can be made, the written notice must state the place where the person can cause the Tribunal to receive his or her application, and so, in the present case, cause the time limit fixed in s 500(6B) of the Act to cease to run.

22                  Counsel for the Minister conceded, again correctly in my view, that an application for review would not be received by the Tribunal and therefore would not be made to the Tribunal when either:

·                    the application was posted in an envelope addressed to the Tribunal at the post office box specified in the written notice that was handed to Mr Pomare; or

·                    the application in that envelope reached that post office box.

23                  It was common ground that the application would be received by the Tribunal, and therefore made, only when it reached a registry office of the Tribunal. In any event, I would have so held.  It should not be readily accepted that a notification would be in accordance with subpara 501G(1)(f)(iv) by specifying a post office box in view of the difficulty or impossibility for a person and, indeed, the Tribunal itself, of ascertaining and proving the time when an application reached the specified post office box.  The importance of being able to know when an application is received, and therefore “made”, is obvious, as the present case shows.  All difficulty disappears if the relevant place where an application may be made is a registry office of the Tribunal.  I use the expression “registry office” to mean the office of the Registrar where applications initiating proceedings before the Tribunal are received, and can be lodged and delivered, and where the Tribunal’s files relating to proceedings before it are maintained.  The word “registry”, standing alone, may be sufficient to convey that meaning.

24                  The view that an application is received by, and therefore made to, the Tribunal only when it reaches the registry office is consistent with subreg 9(1) of the Administrative Appeals Tribunal Regulations 1976 (Cth) which provides that the Registrar must cause the date on which a document was lodged or received at his or her office to be recorded on the document.  It is also consistent with other provisions found in those Regulations which refer to receipt or lodgement or delivery:  see, for example, regs 6(2), 8, 9(2), 9(3), 10.

25                  Consistently with subreg 9(1), Mr Pomare’s application in the present case bears the imprint of the Tribunal stamp reading:

RECEIVED

1 NOV 2007

Administrative

Appeals Tribunal

SYDNEY

and indicates a time of 3.00 pm.  I infer that the date and time mark the date and time of receipt at the registry office.

26                  In summary, in my opinion, in order to satisfy subpara (f)(iv) of s 501G(1) of the Act the written notice that the Minister gives to the person must state the address of a registry office or the addresses of registry offices of the Tribunal.  I need not decide whether the written notice is required to state the addresses of all of the registry offices of the Tribunal at which the person would be entitled to lodge the application.  The notice in the present case stated none.

27                  In Zhan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 469 (Zhan), Allsop J had to deal with an alleged failure of a written notice to comply with s 66(2) of the Act.  That provision related to notification of a decision to refuse an application for a visa.  In the circumstances, the notification was required to state where an application for review of the decision could be made (subpara 66(2)(d)(iv) of the Act).  His Honour said (at [64]) that the purpose of such a statement was to give information as to where the applicant could “make the application”, that is, “initiate it”.  His Honour’s statement is consistent with my holding above.

28                  In Zhan, the applicant was told that lodgement of documents had to be at “a registry of the Tribunal” and no address was given.  A leaflet giving that information was not included with the letter.  His Honour left open the possibility that identification of “registries” of the Tribunal in the telephone directory might have sufficed to supply the meaning of the expression “a registry of the Tribunal”, but the fact was that the telephone directory did not specify that the address given in it was that of a “registry”.  Allsop J remarked (at [65]) that the address given in the telephone directory might have been the Tribunal’s head office or the site of some other activity of the Tribunal.

29                  The word “registry” assumed a special significance in Zhan because of its appearance in the letter – a feature that is absent from the present case.  In this respect Zhan is distinguishable.

30                  Counsel for the Minister submits, correctly, that the facts of the present case are different from those in Zhan because the written notice in the present case did state “the Tribunal at GPO Box 9955”.  However, as noted earlier, the Minister correctly concedes that an application would not be received by the Tribunal and therefore would not be made to the Tribunal when it reached that address.  If an applicant led evidence to support an inference that an application reached the nominated post office box, it would nonetheless be open to the Minister to defeat the application by proving that the application was not in fact received in the registry office of the Tribunal.

31                  In Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1292, Gray J, after referring to Zhan, held (at [53]) that where any of the requirements of s 66(2) of the Act were not complied with, there was no “notification” with the result that time did not begin to run in respect of an application to the Migration Review Tribunal.  The same reasoning must apply to a non-compliance with paras 501G(1)(c)-(f).  In any event, the parties accepted that if I should uphold Mr Pomare’s submission that the notice did not comply with subpara 501G(1)(f)(iv), the matter should be remitted to the Tribunal to be heard and determined in accordance with law.

Did the notice comply with subpara 501G(1)(f)(v) of the Act?

32                  Because of the conclusion I have reached in relation to subpara (f)(iv) of s 501G(1), it is not necessary for me to consider Mr Pomare’s submission based on subpara (f)(v) of s501G(1).  However, it seems appropriate to indicate that I would not have upheld Mr Pomare’s submission that the written notice handed to him did not satisfy that provision.

33                  The relevant statements in the notice that was handed to Mr Pomare were as follows:

·        Subsection 500(6B) provides that if an applicant is onshore ie in Australia then the application for review to the Administrative Appeals Tribunal (the AAT) must be lodged within 9 days after the person being notified of his/her visa refusal or cancellation.

·        Subsection 501(6C) provides that the AAT review application must include a copy or original of the document notifying the person of the decision made and one set of all documents given to the person at time of notification of the decision;

34                  Counsel for Mr Pomare submits in relation to s 500(6B) that the statement did not state the “effect” of that subsection because it did not add the words “in accordance with s 501G of the Act”.

35                  In relation to s 500(6C), counsel for Mr Pomare makes three submissions. First, he submits that the statement made in relation to s 500(6C) contained a clerical slip or error in that the reference to “501” should have been to “500”.  I do not think that this clerical slip or error prevented the notice from satisfying the statute.  Second, counsel submits that the word “include” was erroneous because s 500(6C) requires that the application be “accompanied by” certain documents.  Third, counsel submits that reference in the statement to “one set of all documents given to the person at time of notification of the decision” involved a failure to state the effect of s 500(6C) because, while it is true that that subsection requires the application to the Tribunal to be accompanied by one set of certain documents, the documents are those given to the person under s 501G(2), and that provision requires that two copies of certain documents be given to the person, so that it was at least misleading for the notice to Mr Pomare to have referred to “one set of all documents”.

36                  There is no substance, in my view, in any of the attacks made on the notice insofar as it purported to state the effect of ss 500(6B) and (6C).  While there may be argument over the extent of the requirement that a document state the “effect” of a statutory provision, I think it is clear that the requirement is not one that every aspect of the statutory provision be referred to, otherwise the legislature would have simply required that a copy of the statutory provisions be supplied with the notice.  The notice handed to Mr Pomare did state the effect of ss 500(6B) and (6C).

Conclusion                                  

37                  The decision of the Tribunal will be set aside and the matter remitted to the Tribunal for hearing and determination in accordance with law.  The Minister should pay Mr Pomare’s costs.

Associate:

Dated:              9 April 2008