FEDERAL COURT OF AUSTRALIA

Cao v Minister for Immigration and Citizenship [2009] FCA 586

MIGRATION – appeal – application for review lodged out of time in Federal Magistrates Court – whether appellant properly notified of decision of Refugee Review Tribunal – deemed receipt taken to have occurred seven days after date of letter – requirement for letter to be sent within three days of date of letter for time to run under Migration Act 1958 (Cth) – whether delegate must state in notification letter three day requirement

Migration Act 1958 (Cth) ss 66, 347, 494B, 494C, 494D

Migration Regulations 1994 (Cth) regs 2.16, 4.10

Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172

ZHANG LIANG CAO v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL

NSD 175 of 2009

NORTH J

18 MAY 2009

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal is dismissed.

2.         The appellant pay the first respondent’s costs fixed in the sum of $4,700.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                          Before the Court is an appeal from a decision of the Federal Magistrates Court delivered on 15 December 2008.  The Federal Magistrate dismissed an application for a review of a decision of the Migration Review Tribunal (the Tribunal) which was signed on 1 September 2008.  The Tribunal determined that it did not have jurisdiction to hear the application because the application for review to it was not filed within time.

THE FACTS

2                          The appellant applied for a Student (Temporary) (Class TU) visa on 27 March 2007.  On 6 October 2007 the delegate of the Minister refused the application.  On the same day the delegate notified the decision.  This notification was in the form of a letter sent to the appellant’s authorised recipient by prepaid post on 8 October 2007.  Relevantly, the letter stated:

The applicant is entitled to apply for a review of this decision.  If the applicant decides to lodge a review application, they must do so within 21 calendar days after you receive this letter.  You are taken to have received it seven working days after the date of this letter.

3                          On 13 November 2007 the appellant lodged the application for review.

THE RELEVANT STATUTORY PROVISIONS

4                          Section 347(1)(b)(i) of the Migration Act 1958 (Cth) (the Act) provides that an application for review in the present circumstances has to be given to the Tribunal within the prescribed period being a period ending not later than 28 days after the notification of the decision.  Under reg 4.10 of the Migration Regulations 1994 (Cth) (the Regulations) the period in which an application for review of the decision has to be given to the Tribunal starts “when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received”.

5                          Section 66(1) of the Act provides:

(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.

Regulation 2.16(3) prescribes that the notification had to be by one of the methods specified in s 494B.  The relevant method consisted of the Minister dating the document and then dispatching it within three working dates of the date of the document (s 494B(4)(a)).  Section 494D allowed for the notification to be sent to an authorised recipient on behalf of an applicant and provided that notification given that way was taken to have been given to the applicant.

6                          Where the Minister gives notification in accordance with s 494B(4)(a) the person is taken to have received the document seven working days after the date of the document (s 494C(4)(a)).  Section 66(2) relevantly provides that:

(2)        Notification of a decision to refuse an application for a visa must:

            …

(d)  if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500 – state:

…

(ii)  the time in which the application for review may be made;

ARGUMENTS ON APPEAL

7                          The grounds of review were reformulated at the commencement of the hearing of the appeal, and in the end only two matters were argued.  The first reflected grounds already stated in the notice of appeal and was the main argument agitated before the Federal Magistrate.  The second matter argued was a new ground for which leave to argue was required.  I will deal with each of these matters in turn. 

Ground 1

8                          Ground 1, as reformulated, was that the Federal Magistrate erred in failing to hold that s 66(2)(d)(ii) required the letter of notification to state that the deemed notification referred to in s 494C(4)(a) is subject to the fulfilment by the Minister of the condition precedent stated in s 494B(4)(a).

9                          Mr Killalea, who appeared as counsel for the appellant, contended that the letter of notification should have included a statement to the following effect:

If this letter is sent to you

(i)         by prepaid post; and

(ii)        it was sent to your last address for service provided to the Minister, or was sent to your last residential or business address provided to the Minister; being an address in Australia; and

(iii)       this letter was dispatched from the Department of Immigration, in Australia, within 3 days of its date,

then you are taken to have received it 7 days after the date of the letter. 

10                        By failing, in particular, to make any reference to the requirement that the notification letter had to be dispatched within three working days of the date of the document as required by s 494B(4)(a) the form of the letter failed, so it was argued, to reflect the requirement of s 66(1).  That section required that the mode of giving notice be set out in the letter because the section required the Minister to notify the applicant of the decision “in the prescribed way.”  Counsel argued that s 494B(4) prescribed the way in which notice was given, and consequently its requirements had to be set out in the letter itself.

11                        Next, it was argued that the letter must comply with the law and be correct at the time of sending.  A letter couched in the present terms may or may not be correct.  It would be incorrect if in the events which happened the letter was not posted within three days.  In that situation the time limits described in the letter would not have applied. 

12                        Finally, it was argued that unless the precondition for the operation of the running of time was set out in the letter the section would have an unfair operation.  If the letter were not posted within three working days the recipient would have no means of knowing from the letter that the time had not commenced to run.  It was argued that the information given did not provide the basis for determining the time in which the application for review could be lodged.

13                        Section 66(2)(d)(ii) requires that the notification state the time in which the application for review must be made.  It may well suffice to comply with this provision that a statement of the date at which the time to apply expires was made.  It does not require an explanation of the way in which the time is calculated or arrived at.  The text of the section is clear.  The context of the provision confirms this conclusion.  The cases which give rise to the need for such notification often involve non-English speaking applicants and often without legal representation.  It is likely that Parliament chose to make the notification as simple as is consistent with proper communication.

14                        Indeed, the section would probably allow, as I have said, the mere statement of the date by which the application must be lodged.  To require descent into the intricacies of the calculation of the period would not assist clear communication. 

15                        Counsel for the appellant argued that the alternative construction led to some unfair results.  Thus, if the letter in the present terms was not posted within three working days the recipient would not know the facts and might be misled into thinking that the time for lodging an application for review had expired when, in truth, time had not yet begun to run.  Whilst some unfair operation of the section so construed can be imagined, such cases should not govern the interpretation of the section.  Its terms are clear.  Some unfairness may be the cost of the clear, certain and efficient scheme for notification.  Those are factors particularly relevant to the special jurisdiction here involved which concerns a high volume of notifications often made to non-English speaking and unrepresented recipients.

16                          Counsel for the appellant also relied on the terms of s 66(1) to argue that the requirement to notify an applicant of the decision “in the prescribed way” was a reference to the prescription in s 494B, and therefore meant that the relevant terms of that section had to be included in the notification letter.  However, s 66(1) has the function of stipulating that notification must be made in a certain way.  It does not stipulate the contents of the notification.  That is the special function of s 66(2).  The first ground therefore should not be upheld. 

Ground 2

17                        The appellant sought leave to argue the following ground which had not been raised before the Federal Magistrate.  The second ground was that the decision of the Tribunal was attended by jurisdictional error as the delegate failed to comply with the requirements of s 66(2)(d)(ii) as the delegate’s decision notice did not correctly state the time in which the application for review might be made by the appellant for the reason that the delegate’s letter dated 6 October 2007 incorrectly referred to “receive this letter” and “notice is received” when the letter should have referred respectively to “taken to have received this letter” and “notice is taken to be received.”

18                        In Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172, the Full Court held that the deemed receipt provisions in s 494C(4) apply to the notification referred to in s 347(1)(b) and reg 4.10(1)(a).  The result is that reg 4.10(1)(a) operates so that the period starts when the applicant receives notice in the sense that the applicant is taken to have received notice by operation of s 494C(4). 

19                        It follows, so the appellant sought to argue, that the letter dated 6 October 2007 was incorrect in stating:

If the applicant decides to lodge a review application, they must do so within 21 calendar days after you receive this letter. 

20                        Mr Killalea sought to argue that the letter should have stated something like “if the applicant decides to lodge a review application they must do so within 21 calendar days after you have been taken to have received this letter.”

21                        The appellant argued that there is an apparent contradiction in the final two sentences of the third paragraph of the letter which is set out at [2] of these reasons.  On the one hand the second sentence directs attention to time running by reference to the receipt of the letter.  Then in the third sentence there is a reference to a deemed receipt.  It followed that the delegate failed to comply with s 66(2)(d)(ii) when the time for lodging the application for review did not begin to run. 

22                        The argument should not be accepted.  The third sentence is a clear reference to the point at which the 21 days referred to in the previous sentence commenced to operate.  It qualifies the operation of the second sentence and makes clear that receipt of the letter for the purpose of the running of 21 days is the end of the seven days from the date of the letter.

23                        The proposed second ground of appeal is therefore bound to fail and in those circumstances it is not appropriate to give leave to the appellant to argue that ground on the appeal. 

24                        The appeal is therefore dismissed.

Associate:

Dated:         1 June 2009