FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Citizenship v Abdul Manaf [2009] FCA 963

MIGRATION – Visa application refused by Minister’s delegate – applicant validly notified of decision by registered mail – later notification of applicant’s change of address – further notification to non‑existent address invalid – whether second notification invalidates or cancels effect of first notification.

ELECTION – Tribunal holds it has no jurisdiction to entertain application to review visa refusal – Federal Magistrate quashes decision and orders Minister to notify applicant of refusal of visa – Minister complies with order and then seeks an extension of time within which to appeal – whether by not seeking a stay of Magistrate’s order Minister has elected so as no longer able to appeal – whether right to seek stay and right to appeal are inconsistent rights.

Migration Act 1958 (Cth) ss 5(23), 66, 347(1)(b), 494B, 494C

Migration Amendment (Notification Review) Act 2008 sub‑s (7)

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

Acts Interpretation Act 1901 (Cth) s 33(1)

Burgess v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 58 cited

Dutton v Republic of South Africa (1999) 162 ALR 625 cited

H v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 153 distinguished

Jess v Scott (1986) 12 FCR 187 cited

Kim v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 64 cited

Minister for Immigration and Multicultural Affairs v Bahwadj (2002) 209 CLR 597 distinguished

Minister for Immigration and Multicultural Affairs v Watson (2005) 145 FCR 542 cited

Nguyen v Minister for Immigration and Citizenship [2007] FCAFC 38 applied

Sargent v ASL Developments Ltd (1974) 131 CLR 634 applied

Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 626 considered

SZBMF v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 485 cited

SZJUA v Minister for Immigration and Cultural Affairs [2007] FCA 1184 cited

VOAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 397 cited

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

Zhang v Minister for Immigration and Citizenship (2007) 161 FCR 419 considered

MINISTER FOR IMMIGRATION AND CITIZENSHIP v ZAHARA ABDUL MANAF, JAMAIN MOHAMED AMIN, NUR LINA BINTE MOHAMED AMIN, MOHAMMED FAKHRI MOHAMED AMIN, MOHAMED RIZAL MOHAMED AMIN and MIGRATION REVIEW TRIBUNAL

VID 200 of 2009

SUNDBERG J

31 AUGUST 2009

MELBOURNE

THE COURT ORDERS THAT:

1.         The time within which the appellant may file and serve a notice of appeal be extended to 2 April 2009.

2.         The appeal be allowed.

3.         The orders of the Federal Magistrates Court made on 6 March 2009 be set aside, and in lieu thereof it be ordered that:

(a)     the application filed on 14 July 2008 in the Federal Magistrates Court as amended on 21 October 2008 be dismissed; and

(b)     the applicants pay the first respondent’s costs of and incidental to the said application.

4.         There be no order as to the costs of the application for extension of time or of the appeal.

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

INTRODUCTION

1                          The applicant (the Minister) seeks an extension of time in which to appeal from a decision of a Federal Magistrate quashing a decision of the sixth respondent (the Tribunal) that it did not have jurisdiction to entertain an application for review of a decision of the Minister’s delegate to refuse the first respondent’s application for a Temporary Business (Class UC) Independent Executive subclass 457 visa. The Tribunal decided that valid notification of the delegate’s decision had occurred on 16 August 2007, with the result that the prescribed period within which an application could validly be made to the Tribunal was 6 September 2007. See Migration Act 1958 (Cth) (the Act) s 347(1)(b) and Migration Regulations 1994 (Cth) (the Regulations) reg 4.10(1)(a). The first respondent’s application for review was not made until 28 February 2008. The Magistrate found that the initial valid notification had been invalidated by a subsequent invalid notification, and declared that the first respondent had never been notified of the delegate’s decision. If an extension of time is granted, the appeal will be heard forthwith.

FACTS

2                          The first to fifth respondents are a family consisting of a mother (the first respondent), her husband and their three children. I will call the first respondent “the respondent”. The respondent and her family are citizens of Singapore. The respondent entered Australia in February 2002 on a four year Temporary Business (Class UC) Independent Executive subclass 457 visa.

3                          In February 2006 the respondent lodged an application for a further business visa in which she provided an address to which correspondence should be sent (the Bridgewater Way address). On 7 August 2007 the delegate refused to grant the visa. Later on that day the delegate sent a letter by registered post to the Bridgewater Way address (the first notification letter), which enclosed a copy of the delegate’s decision.

4                          On 22 August 2007 the respondent advised the Department of Immigration and Citizenship of a change of address (the Bindowan Drive address). On 23 August 2007, in response to that advice, the Department sent a further letter to the respondent enclosing the first notification letter (the second notification letter). However, as a result of an error the second notification letter was not sent to the Bindowan Drive address but to an address that did not exist. On 24 August 2007 the first notification letter was returned to the Department unopened. On 3 September 2007 the second notification letter was returned to the Department marked “no such address”.

5                          On or about 8 February 2008 the respondent became aware of the delegate’s decision. On 28 February 2008 she applied to the Tribunal for review of the decision. On 6 May 2008 the Tribunal found it did not have jurisdiction to review the decision because the application had not been made within time. This was based on the Tribunal’s acceptance that the respondent had been notified of the delegate’s decision on 16 August 2007 by the first notification letter.

6                          The respondent applied for judicial review of the Tribunal’s decision. The Federal Magistrate rejected the respondent’s contention that the first notification letter was not a valid notification of the delegate’s decision for technical reasons which it is not necessary to record. However, he upheld a submission by the respondent that the second notification letter amounted to a re‑notification which cancelled the first notification letter. His Honour rejected the Minister’s submission that the second notification letter was merely a courtesy letter, in effect advising of the decision, and that it did not invalidate the earlier notification. He said:

Having elected to re‑notify, then the first notification is redundant and cannot form the basis, in my view, for the calculation of prescribed time limits.

Of course, if there was an attempted re‑notification, as I find there was, then the attempted re‑notification failed because it was clearly sent to the wrong address and in keeping with the legislative imperative that the applicant be notified of the outcome, the second notification plainly did not satisfy that imperative.

…

I find that the Tribunal erred in its determination that an effective notice was served because the re‑notification invalidated the first notification and, because of it being sent to the wrong address, the re‑notification plainly did not satisfy the legislative scheme.

7                          The Magistrate declared that the respondent had never been notified of the delegate’s decision, quashed the Tribunal’s decision, and required the Minister to determine which of the options for notification given by s 494B of the Act was to be used to notify the respondent of the delegate’s decision and to notify her of the decision by that means. Those orders were made on 6 March 2009.

8                          On 24 March 2009 the Department sent the respondent’s solicitor a letter (the third notification letter) enclosing a letter to the respondent dated 23 March 2009 and the Decision Record dated 7 August 2007 by which the delegate refused her visa application. The 23 March letter stated that the visa application had been refused.

9                          On 2 April 2009 the Minister filed and served a notice of appeal to this Court from the Magistrate’s decision. Later on that day the Court’s registry informed the Minister’s solicitors that the notice of appeal had been filed out of time.

10                        On 8 April 2009 the Minister’s solicitors filed and served an application for extension of time to file and serve a notice of appeal and an amended draft notice of appeal. The amendment consisted of adding the family members other than the respondent as respondents.

11                        On 14 April 2009 the respondent applied to the Tribunal to review the delegate’s decision.

EXTENSION OF TIME

12                        The Minister’s notice of appeal should have been filed and served by 27 March 2009. It was filed and served six days late. Order 52 rule 15(2) empowers the Court to extend time for “special reasons”. In Jess v Scott (1986) 12 FCR 187 at 195 the Full Court said that “special reasons”:

is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served.

13                        The main factors relevant to the exercise of the discretion are the applicant’s prospects of success on an appeal, and whether a sufficient explanation for the delay has been provided: Nguyen v Minister for Immigration and Citizenship [2007] FCAFC 38 at [20] and [27].

Explanation for delay

14                        I will deal first with the explanation that has been provided for the delay. On 6 March 2009, the date of the Magistrate’s decision, the Minister’s solicitors advised him that the last day to file and serve a notice of appeal was 3 April 2009. According to the solicitor handling the matter, that date was calculated by reference to s 477A of the Act. Reliance on that section was misplaced, because the section applies to applications to the Court in its original jurisdiction and not its appellate jurisdiction. The Minister acted on that advice, and within the advised appeal period, on 1 April instructed his solicitors to file a notice of appeal. That was done on 2 April. As I have said, later that day the Registry informed the Minister’s solicitors that the notice was out of time. The solicitors informed the Minister of that fact, and the Minister said he would consider his position and provide instructions by 6 April. On that day the Minister decided to seek an extension of time. That application was filed on 7 April together with a supporting affidavit setting out the matters recorded in this paragraph.

15                        In my view the Minister has sufficiently explained the short delay in filing the notice of appeal. In several cases an extension of time has been granted where there has been a short delay caused by reliance on incorrect advice as to time limits. Jess v Scott was such a case.

Prospects of success

16                        Section 494B of the Act provides in part:

(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

(c)     to:

(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.

17                        Regulation 2.16(3) of the Regulationsrequires the Minister to notify an applicant of a decision to refuse to grant a visa by one of the methods in s 494B.

18                        Section 494C provides in part:

(1)        This section applies if the Minister gives a document to a person by one of the methods specified in section 494B …

…

(4)        If the Minister gives a document to a person by the method in subsection 494B(4) … 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.

19                        It will be recalled that the Federal Magistrate concluded that the respondent had not been notified of the delegate’s decision because the Department’s decision to re‑notify the respondent of the decision rendered the first notification “redundant” or “invalidated” it. See [6].

20                        The Minister submits that the Magistrate identified no legal principle for his decision. Rather he focused on whether the second notification letter was a courtesy letter or a re‑notification letter. The rejection of the Minister’s courtesy letter submission in favour of the respondent’s re‑notification characterisation does not, says the Minister, provide a legal principle by reference to which the act of sending the second notification letter affects the validity of a notification that had already occurred.

21                        Section 494C is a statutory deeming provision. It does not create a rebuttable presumption that notification has occurred. Section 5(23) of the Act provides that:

To avoid doubt, in this Act is taken, when followed by the infinitive form of a verb, has the same force and effect as is deemed when followed by the infinitive form of that verb.

22                        In Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 at [13]‑[14] the Full Court said:

Subsection 494C(4) does not purport to create a rebuttable presumption of fact. It provides that in certain circumstances, a person is to be “taken to have received the document …”. Nothing in the section suggests that this is merely a rebuttable presumption...

Spender J, in Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 550 at [69] observed:

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 document 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”.

We agree. The sequence of statutory and regulatory provisions to which we have referred prescribes with precision the steps to be taken in notifying a visa applicant of the outcome of his or her application.

23                        Other recent decisions are to the same effect: SZBMF v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 485; Kim v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 64; SZJUA v Minister for Immigration and Cultural Affairs [2007] FCA 1184.

24                        The Minister says that s 494C(4) would have operated to deem the first notification letter to have been received even if the respondent’s notification of change of address had been received by the Department between 7 August 2007 (when the letter was sent) and 16 August 2007 (when it was deemed to have been received). In VOAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 397 at [22] French J said:

I do not accept the submission that the process of sending remains notionally in effect until deemed receipt and is halted by the intervening notice of a new address. Neither the language nor the evident purpose of the statutory and regulatory scheme supports such a construction.

25                        Of course in the present case, on the Minister’s submission, s 494C(4) had fully operated on the first notification letter before the respondent notified her change of address.

26                        In my view the Minister has a strong case that once the Federal Magistrate had rejected the technical attacks on the validity of the first notification letter, he should have concluded that the respondent had been notified of the delegate’s decision on the ground that the defect in the second notification letter cannot affect the validity of a notification that had already been “taken” or “deemed” to have occurred prior to the second notification letter being sent.

Discretionary considerations

27                        The respondent advanced three matters she said should lead to the refusal of an extension of time. The first was that an appeal is of academic interest only, and will not determine any question now at issue between the parties. The respondent has a review proceeding on foot in the Tribunal in respect of the delegate’s decision. That review will determine whether she is entitled to the visa. It was submitted that if an extension of time were granted and the appeal upheld, that would not affect the conduct of the review or the validity of the Tribunal’s decision on the review. The position would be the same if the appeal were to be dismissed.

28                        The contention that the respondent’s application for review will determine her right to a visa is in my view much weaker than the Minister’s strong case described at [26]. On that case, the third notification letter was incapable of having any effect because the first notification letter was effective. Accordingly the Tribunal would have no jurisdiction to entertain the application. Section 347(1) requires an application for review to be made in the approved form and be given to the Tribunal within the prescribed period. The prescribed period in reg 4(10)(1)(a) is 21 days after the notification of the decision. Notification took place on 16 August 2007. The current application was not made within the prescribed period, and accordingly is not competent. The Tribunal has no jurisdiction to entertain it. The Department’s letter of 24 March 2009 cannot confer on the Tribunal jurisdiction it does not have. The respondent’s discretionary consideration depends on the Minister’s contention, just described, being erroneous. All I need say at this stage is that in view of the strength of the Minister’s case, I do not regard this discretionary consideration, which is at odds with that strong case, to be sufficiently persuasive to cause me to refuse an extension of time.

29                        As part of this first discretionary consideration, the respondent contended that the Minister made an election by not seeking a stay of the Magistrate’s orders and indeed complying with them, and that he cannot resile from the consequences of that conduct. In Sargent v ASL Developments Ltd (1974) 131 CLR 634 at 655 Mason J said:

A person is said to have a right of election when events occur which enable him to exercise alternative and inconsistent rights.

…

Essential to the making of an election is communication to the party affected by words or conduct of the choice thereby made and it is accepted that once an election is made it cannot be retracted …

A person confronted with a choice between the exercise of alternative and inconsistent rights is not bound to elect at once. He may keep the question open, so long as he does not affirm the contract or continuance of the estate and so long as the delay does not cause prejudice to the other side.

30                        Apart from saying that the Minister did not seek a stay of the Magistrate’s order, the respondent did not identify the Minister’s two alternative and inconsistent rights. Presumably the right other than the right to seek a stay is the right to appeal. In my view these rights are not inconsistent rights. Unsuccessful litigants frequently comply with orders which they intend to challenge without thereby losing their right of appeal. For example a litigant ordered to repay money to the Commonwealth is unlikely to be advised to seek a stay, because there would be no risk of the Commonwealth being unable to repay the money in the event of a successful appeal. The notion that the consequence of not applying for a stay and complying with an adverse order is the loss of the right to appeal is quite foreign to the way in which appellate litigation is conducted. That the right to apply for a stay and the right to appeal are not inconsistent is shown by the fact that they so often travel together. For example, an unsuccessful party who is ordered to pay money to an opponent he thinks will use it to pay heavy debts so as to make it unlikely he will be able to repay it if the appeal is successful, will both appeal and seek a stay.

31                        The second discretionary consideration relied on by the respondent is that the legal issues the Minister wishes to raise on an appeal are of academic interest. She relies on s 494C(7) of the Act which provides:

If:

(a)        the Minister purports to give a document to a person in accordance with a method specified in section 494B … but makes an error in doing so; and

(b)        the person nonetheless receives the document or a copy of it;

then the person is taken to have received the document at the times mentioned in this section as if the Minister had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is  taken to have received  it at that time.

32                        Subsection (7) was introduced by the Migration Amendment (Notification Review) Act 2008 (Cth) (the Amending Act) and came into operation on 5 December 2008 so as to apply to documents given by the Minister after that date. Accordingly, it does not apply to the present case. The respondent’s argument was that if the circumstances before the Court were to arise again under the amended legislation, a court or tribunal would find that the second notification letter was defective and would have the effect of cancelling or invalidating the first notification letter. On that approach the Minister has made an error in giving a document to the respondent in accordance with a method specified in s 494B, but the respondent nevertheless received it on 12 February 2008. She is thus taken to have received the document at that time. The time within which to apply to the Tribunal would run from that date. Because of this change in the law, the respondent says that the issues raised are no longer matters of public importance, and I should not write a judgment about them because “Parliament has moved on”.

33                        The Explanatory Memorandum to the Bill which became the Amending Act explains that the notification provisions in the Act and regulations are highly prescriptive and create fertile ground for the courts to find defects in notifications. Technical errors can be relied on by those seeking to delay the resolution of their cases despite no apparent prejudice flowing from the defect. The Memorandum gives examples of defects, including the use of the wrong postcode, where the document is nevertheless received by the addressee. The Memorandum identifies two key changes to the notification regime:

·      Provide that substantial compliance with the required contents of a notification document is sufficient unless the recipient is able to show the error or omission in the document causes them substantial prejudice.

·      Provide the deemed time of notification provisions will operate despite non‑compliance with a procedural requirement for giving a document to an individual where the individual has actually received the document unless the individual is able to show they received the document at a later date in which case they will be taken to have received the document at that date.

34                        In explaining the point of s 494C(7), the Memorandum states that the new subsection:

relates to the deemed receipt of a document that contains a minor or insignificant error. It provides that a person is taken to have received a document at the times mentioned in s 494C even if the document, the envelope containing the document or any accompanying material, contains an error or omission that is minor or insignificant, unless the person can show that the error or omission substantially prejudices him or her.

35                        The viability of the second discretionary consideration depends on the soundness of the contention that the second notification letter negates the effect of the first. As I have said at [28], the Minister’s argument to the contrary is much stronger than the respondent’s argument in support of denying the extension of time. What I have said there is applicable to this discretionary consideration.

36                        The third discretionary consideration relies on what is described as “the justice of the matter”. In this connection it is said that the Tribunal review application is on foot. The Tribunal is the only body in which merits review can take place, and “there is no question of the decision of that tribunal being defeasible at all, ever”. As I have said at [28], the Minister’s argument to the contrary is of much greater strength than this assertion.

37                        Having regard to what I regard as the Minister’s strong prospects of success on an appeal, if leave is granted, and the comparative weakness of the discretionary considerations which are entwined and at odds with the Minister’s case, I propose to grant an extension of time.

THE APPEAL

38                        In dealing with the application for extension of time, I have said that the Minister has strong prospects of success on an appeal. Having heard the argument on the appeal itself, I have concluded that the matters recorded at [16]‑[26] and [28] lead to the conclusion that the appeal should be allowed. It is necessary, however, to deal with the respondent’s submissions on the appeal that were not deployed on the extension application.

39                        The respondent submits that the Act does not prevent the Minister notifying a decision on more than one occasion, either because there is doubt whether the duty imposed by s 66 had been discharged or because it is expedient to do so. It was said that Minister for Immigration and Multicultural Affairs v Bahwadj (2002) 209 CLR 597 shows that where a person exercising statutory power realises a purported exercise is not legally effective, the person can re‑exercise the power. In that case an applicant’s agent informed the Immigration Review Tribunal that the applicant was unable to attend a hearing and wanted a later hearing date. By error that information was not drawn to the attention of the member constituting the Tribunal, who made a decision adverse to the applicant. On discovering the error, the Tribunal held a further hearing and decided in the applicant’s favour. The Minister’s application to set aside the second decision on the ground that the Tribunal was functus officio once it had made the first decision was dismissed. Four members of the Court held that the Tribunal’s first decision was made in jurisdictional error (denial of natural justice), did not constitute a review as required by the Act, and was of no legal effect.

40                        The present case is quite different. Here the Tribunal found, correctly, that it did not have jurisdiction to entertain the appeal. Once it had done that, it was functus officio. If it had purported to re‑exercise its power, any “decision” would have been of no effect. The essence of Bahwadj is that the Tribunal’s first decision was a nullity, and thus no obstacle to a fresh decision.

41                        The respondent relied on s 33(1) of the Acts Interpretation Act 1901 (Cth) for the contention that the requirement in s 66 of the Act that the Minister notify an applicant of the decision whether to grant or refuse a visa can be exercised from time to time. That subsection provides:

Where an Act confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as the occasion requires.

As I understood it, this provision was deployed in support of the contention that a subsequent notification could displace an earlier one.

42                        Section 33(1) was mentioned in Bahwadj. There the Minister argued that the subsection does not confer any power to make a further decision, because the Act disclosed an intention to the contrary. The High Court held that once it was seen that the first decision was a nullity, the Tribunal was required to revisit the matter because its duty remained unperformed. At [53] Gaudron and Gummow JJ said this was so “regardless of s 33(1)”. At [156] Hayne J said that s 33(1) did not require consideration because the Tribunal had performed its duty only once, by the making of the second decision.

43                        Whatever the scope of s 33(1), it cannot in my view operate in the way in which the respondent seeks to have it apply, namely to invalidate or cancel the legal effect of an earlier performance of a duty. The subsection says nothing about displacing the legal effect of an earlier exercise of power or performance of duty. That it does not have that effect is supported by the contrast provided by subs (3):

Where an Act confers a power to make, grant or issue any instrument (including rules, regulations or by‑laws) the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend or vary any such instrument.

44                        In Dutton v Republic of South Africa (1999) 162 ALR 625 at [32] Branson J observed that s 33(1) does not refer to the withdrawal or cancellation of the exercise of a power. Her Honour pointed to the contrast between subss (1) and (3) in this respect.

45                        The observations of Hely J in Minister for Immigration and Multicultural Affairs v Watson (2005) 145 FCR 542 at 547 are to the same effect:

In my view, s 33(1) … (assuming it applies) does not have the effect that once there is a valid exercise of the s 501(2) power to cancel a visa, the visa can be effectively restored to the former holder by a second exercise of that power. Whilst the Minister has a discretion whether or not to exercise the s 501(2) power, the power in question is simply a power to cancel a visa which, if validly exercised, results in the former holder acquiring the status of an unlawful non-citizen with the consequences prescribed by the Act. There is no occasion for the re-exercise of the power once it has been validly exercised.

46                        In Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 626 the Minister refused to grant a temporary entry permit. Later the applicant asked that the refusal be reviewed in the light of additional material. That request was refused. The applicant sought judicial review of both refusals. The ground of review of present relevance concerned the second refusal, which was attacked on the ground that the decision maker erroneously concluded that he did not have power to reconsider his decision. French J considered whether the power to grant or refuse to grant an entry permit carried with it a power to reconsider an earlier exercise of the power. His Honour concluded it did not. He said at 444:

While it may be accepted that a power to reconsider a decision made in exercise of a statutory discretion will have the advantage of convenience, it cannot always claim the virtue of necessity. And in the context of the Migration Act as it presently stands with specific provisions for review of decisions and the making of regulations relating thereto, I do not consider, in the absence of clear words, that it would be proper to imply such a power.

47                        French J did not refer to s 33(1). However, in Burgess v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 58 at 62 Katz J expressed the view that his Honour would have come to the same conclusion had he taken that provision into account.

48                        If, contrary to my view, s 33(1) could in an appropriate statutory context operate in the manner sought by the respondent, it could not do so in the present case because the notification scheme of the Act, especially s 494C, discloses a contrary intention. The prescriptive timing regime that runs through the Act is inconsistent with the notion that, as the Minister put it, “you can reset the clock as often as you like by just sending a new letter”.

49                        In support of the contention that a subsequent notification cancels the effect of an earlier one, the respondent relied on H v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 153. There notification had first been sent to the appellant’s agent and was later handed to the appellant in person. Notification to the agent gave the appellant more time in which to lodge his application for review. The Refugee Review Tribunal dismissed the application on the ground that it was out of time. The primary judge dismissed an appeal from that decision. The appellant’s appeal was upheld by the Full Court. The Court agreed with the Tribunal’s decision so far as it concerned personal notification, but said that the Tribunal had overlooked the notification to the agent. At [9] their Honours said:

On the basis of this notification, there are two alternative bases for concluding that the application for review was within time. The first is that the notification to the migration agent was the only relevant notification of the decision, so that the application for review could be lodged at any time before 14 November. This approach assumes that once the Minister first notified the appellant of the decision, that exhausted the Minister’s obligation under s 66. If that be correct, any further “notifications” (for example, by personally serving the appellant with a copy of the decision), would not be notifications under the statute and would have no legal consequence.

The second basis for holding the application to be within time assumes that the second notification cannot be ignored, and that it brought into operation a second timetable within which the applicant could file a notice of review. In that event the applicant has been given two inconsistent timetables within which to make application for review and, in the absence of any statutory basis for giving one priority over the other, the appellant was entitled to choose the timetable that best suited him. That is what occurred in this case, albeit the appellant did not know he was making a choice.

50                        In Zhang v Minister for Immigration and Citizenship (2007) 161 FCR 419 the appellant relied on the second basis in H, which the Full Court described at [23] as an “ambitious claim”. At [25] their Honours said it was unnecessary to express any view on the correctness or otherwise of the second basis in H and in particular “whether there can be two operative and effective notifications made”. They were of the opinion that in the case before them two methods of notification were not utilised giving rise to inconsistent timetables.

51                        In my view the Full Court in H was not endorsing both alternative bases. Only one can be the correct approach. An assumption is part of each of them. I understand the Court to have said that on whichever of the two bases argued was the correct one, the application for review was within time. It was thus unnecessary to decide which was the true view. For the reasons I have given, the first basis is to be preferred. That would appear to have been the opinion of the Court in Zhang.

CONCLUSION

52                        An extension of time in which to appeal should be granted to the Minister and the appeal allowed. Ordinarily the Minister would have to pay the costs referable to the extension application and the respondent those referable to the appeal. In these circumstances the appropriate order is that there be no order as to costs.

Associate:        

Dated:         31 August 2009