FEDERAL COURT OF AUSTRALIA

Haque v Minister for Immigration & Citizenship [2010] FCA 346

THE COURT ORDERS THAT:

1.         Orders that the decision of the Migration Review Tribunal (the Tribunal) dated 1 September 2008 that the Tribunal had no jurisdiction to review the decision of a delegate of the first respondent refusing the appellant a Student (Temporary) (Class TU) visa (the “decision”) be quashed.

2.         Declares that the Tribunal has jurisdiction to review the decision.

3.         Orders that the matter be remitted to the Tribunal for review of the decision to be determined according to law under Part 5 of the Migration Act 1958 (Cth).

4.         Orders that the first respondent pay the costs of the appellant in the proceedings before the Federal Magistrates Court.

5.         Orders that the first respondent pay the costs of the appellant in this 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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     This is an appeal against a judgment of a Federal Magistrate of 20 July 2009 dismissing an application for judicial review of a decision of the Migration Review Tribunal (the Tribunal) delivered on 1 September 2008.  The Tribunal concluded that it had no jurisdiction because the application for review was received outside the statutory time limit.

PROCEDURAL HISTORY

2                     The appellant lodged an application for a Student (Temporary) (Class TU) visa with the Department of Immigration and Citizenship on 31 August 2007.  His application included his wife as a member of his family unit.  A delegate of the first respondent refused the application on 30 January 2008.  The delegate found that the appellant did not satisfy Regulation 573.223(2)(a)(i)(A) of the Migration Regulations 1994 (Cth) and clause 5A504 of Schedule 5A in relation to his visa application.  These provisions relate to English language proficiency.  The delegate notified the appellant of her refusal decision by letter dated 30 January 2008 (the decision letter).

3                     On 7 March 2008 the appellant applied to the Tribunal for a review of that decision.  The Tribunal found that the appellant was out of time to apply to it and, therefore, concluded it lacked jurisdiction.

4                     The Tribunal wrote to the appellant on 18 June 2008 inviting him to comment and provide further information in relation to the question of whether his application was eligible for review.  The appellant indicated that he was going to hire a lawyer and needed more time to comment.  The appellant made a request for and was granted an extension of time to respond by 11 July 2008.  The Tribunal granted 3 further extensions of time with the last extension being 22 August 2008.  A Tribunal officer made it clear that no further extensions of time would be granted. No submission in response to the eligibility issue was received

5                     On 1 September 2008, the Tribunal wrote to the appellant notifying him that the application was ineligible for review.  In its record for this decision, the Tribunal noted that the material before it indicated that the appellant did not give the Minister written notice under s 494D of the Migration Act 1958 (Cth) (the Act) of the name and address of an authorised recipient and that the decision notice, dated 30 January 2008, was sent by prepaid post on 30 January 2008 from a place in Australia to the appellant at an address in Australia, being the last residential address provided to the Minister by the appellant for the purposes of receiving documents.

6                     The Tribunal found that the decision letter was dispatched within 3 working days of the date of the letter to the correct address, in accordance with s 66(1) and s 494B(4) of the Act.  Therefore, the appellant by virtue of s 494C(4) was taken to have received the decision letter on 8 February 2008, being 7 working days after its date.  The Tribunal found that the appellant was properly notified of the delegate’s decision and was taken to have been notified on 8 February 2008 and accordingly, the prescribed period of 21 days within which the application for review could be lodged ended on 29 February 2008.  The Tribunal was also satisfied that the contents of the decision letter complied with the requirements of s 66(2) of the Act.  This last conclusion is central to this appeal. 

PROCEEDINGS IN THE FEDERAL MAGISTRATES COURT

7                     On 10 March 2009, the appellant applied to the Federal Magistrates Court for review of the Tribunal’s decision.  The appellant represented himself at the hearing of the application.  Essentially, the appellant took issue with the finding of the Tribunal that it did not have jurisdiction to hear the application for review.  The appellant also complained that the Tribunal did not notify him within a reasonable time that the application was ineligible, causing him to lose his right to lodge an application for another student visa application or to continue with his Bridging Visa 101BVA.  He also complained that his lawyer did not properly pursue his case.  

8                     The Federal Magistrate concluded that the Tribunal had before it adequate evidence to arrive at the factual conclusions that it did, and in particular, to arrive at the conclusions that the decision letter was:

(a)        dispatched within three working days;

(b)        sent to the correct address, being 3/309 Harborne Street, Glendalough WA 6016; 

(c)        sent from an address within Australia to an address within Australia, being the correct address and the last residential address provided by the applicant to the Minister. 

9                     The Federal Magistrate, against this background, found that by virtue of the Act, the decision letter constituted notification under s 66(2) of the Act and was taken to have been received by the applicant on 8 February 2008.

10                  The Federal Magistrate then concluded that, as the application was received by the Tribunal outside of the 21-day prescribed period for making an application to the Tribunal, it followed that the Tribunal did not have jurisdiction to entertain the application.

11                  Having found no jurisdictional error in the decision of the Tribunal, the application for review was dismissed. 

THE PRESENT APPEAL

12                  The appellant filed a notice of appeal on 10 August 2009.  The notice of appeal raises the following ground:

1.         The learned Federal Magistrate erred by failing to find that the Second Respondent (“Tribunal”) committed jurisdictional error by failing to exercise its jurisdiction.

Particulars:

(a)        In order for the Court below to have found that that [sic] the Tribunal did not have jurisdiction to review the application to it, it was required to have found as a jurisdictional fact that the delegate of the First Respondent (“Minister”) had strictly complied with the statutory requirements as to notification when it purported to notify the visa applicants of its decision to refuse the visas sought.

(b)        It was not open to the Court below to so find in the absence of any evidence before it capable of establishing that the visa applicants were notified as to where the application for review of the delegate’s review could be made, as required by section 66(2)(d)(iv) of the Migration Act 1958 (Cth) (“Act”). 

(c)        Further and in the alternative, it was not open to the Court to so find because the address to which the delegate purported to send its notification was not provided by the Appellant “for the purposes of receiving documents” and, therefore, the posting of documents to that address did not constitute notification by a method specified in section 494B, as required by section 66(1) of the Act and regulation 2.16(3) of the Migration Regulations 1994 (Cth).

(d)        Further and in the alternative, it was not open to the Court to so find because the delegate failed to notify the second applicant of its decision at all.

13                  The appellant submits that, properly understood, the grounds of alleged non-compliance with s 66(1) and (2) of the Act were before the Federal Magistrate.  He contends that:

(a)        ground 1 raised below (“the second respondent’s decision was in excess of jurisdiction in that the review was not a “proper, genuine and realistic” review”) was sufficiently wide so as to capture this allegation (although the Appellant did not explain this ground with reference to section 66).  This ground is on its face a complaint that the Tribunal committed jurisdictional error by refusing to conduct a review, which is essentially the point sought to be raised in the appeal – i.e. that the Tribunal had jurisdiction because notification pursuant to section 66 had not occurred, hence the Tribunal committed jurisdictional error by refusing to exercise its jurisdiction; and

(b)        irrespective of whether the Appellant raised it below, the issue was before the court below.  The court considered the validity of the notice sent to the Appellant in its reasons for judgment (see [3]-[13] at AB186-190).  Indeed, the leaned Federal Magistrate identified it as the ‘real’ issue in the proceedings.

14                  I do not accept either of these submissions. 

15                  I do not regard the phrase “proper, genuine and realistic” relied upon by the appellant as raising these issues.  Had that been the intent of the appellant I expect that in submissions written and/or oral below he would have in some way developed such an argument.  He did not do so.

16                  Further it is not the case that these were “issues” to which the Federal Magistrate, of his own motion, turned his mind.  It is the case that his Honour said at [3] that “the real issue in these proceedings, however, is whether the Tribunal had jurisdiction to hear the application made to it by the applicant …”.  However, whilst his Honour canvassed the relevant provisions concerned with notification of the Tribunal’s decision, including s 66 of the Act, he did not do so in order to resolve any issues between the parties which the appellant now seeks to ventilate before this Court.

17                  The Federal Magistrate, after setting out at [6] the relevant provisions of ss 66, 494B and 494C(4)(a) of the Act and Reg 2.16 of the Migration Regulations, observed at [7] that the relevant facts were not really challenged by the appellant. 

18                  Then his Honour said at [9]:

… the essential facts in relation to the decision that the Tribunal made are not challenged, particularly the fact of the receipt of the letter and indeed that letter is of course deemed to have been received on 8 February 2008, in any event, by reason of the relevant legislation.

The “letter” referred to here is the decision letter.

19                  It is plain, in my view that in the court below the appellant did not raise the issues now raised by him in this appeal.

20                  It follows that leave is required to raise these grounds.

LEAVE TO RAISE NEW GROUND OF APPEAL

21                  As was observed by the Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48]:

The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated.  Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. 

22                  There are other cases to similar effect: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [11]–[39]; Gomez v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 190 ALR 543; and Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [23]-[25].

23                  In NAJT v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2005) 147 FCR 51, Madgwick J at [165] and Conti J at [229] each suggested that the usual rules might be somewhat relaxed in “refugee” cases where the appellant appeared in person.  The appellant appeared in person in the court below.

24                  In Iyer [2000] FCA 1788 the Full Court, to like effect, said at [24] :

… in order to determine whether it is expedient and in the interests of justice that leave be given to argue new grounds it is necessary to give some consideration to the merits of the grounds raised. That does not mean that an appellate court should enter upon a full consideration of the grounds.  To do so would make the requirement for leave meaningless. It is sufficient to determine whether the grounds sought to be raised have a reasonable prospect of success. We also consider it appropriate to take into account whether the appellant had the benefit of legal representation at the hearing before the primary judge.

25                  This is not a refugee case, and it is therefore unnecessary to consider the question of whether there are special considerations for a grant of leave in refugee cases.  Whatever be the position in that respect, an application for leave must satisfy the Court that it has reasonable prospects of success on the merits.

26                  There are a number of other criteria which may be considered relevant to the exercise of the Court’s discretion on the question of leave.  I will, however, first deal with the matter of the merits of the appellant’s proposed grounds at the level identified by the Court in Iyer [2000] FCA 1788.

MERITS: ALLEGED NON-COMPLIANCE WITH S 66(2)(D)(IV) OF THE ACT

The Legislation

27                  The requirements of notification of a decision are prescribed by s 66 of the Act, which relevantly 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.

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

            (a)        …

            (b)        …

            (c)        …

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

                        (i)         that the decision can be reviewed; and

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

                        (iii)       who can apply for the review; and

                        (iv)       where the application for review can be made.

(3)        …

(4)        …

(5)        …

Note:   Sections 501C and 501G provide for notification of a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person. (Emphasis added)

28                  The final paragraph of the decision letter is as follows:

Applications for review must be lodged with the Migration Review Tribunal (MRT).  The enclosed leaflet provides information about the review process, how to lodge a review application and how to contact the MRT if you need further information.  (Emphasis added)

29                  The leaflet referred to in this paragraph of the decision letter was not before either the Tribunal or the Court below nor was it or its contents referred to in either case.

30                  In Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 308 Gray J made the following observation at [45]-[46] with which I respectfully agree:

[45]  The evident purpose of the provisions in s 66(2) of the Migration Act is to ensure that the legislative scheme in relation to rights of review of decisions operates fairly.  The intention is that not only should an unsuccessful applicant for a visa be told that his or her application has been unsuccessful, but he or she should also be given enough information to pursue the right of review if disposed to do so.  That information includes the criterion or criteria that the applicant failed to satisfy, any legislative provision that prevented the grant of a visa, in most cases the reasons why the criterion was not satisfied or the provision prevented the grant of the visa, and the steps required to make an application to review the decision.  Without all of this information, an unsuccessful applicant would be disadvantaged in the operation of the scheme, in which the time limits are strict and in which there exists no power, discretionary or otherwise, to enlarge them. …

[46]  In this context, it is easy to see that each element of the requirements of s 66(2) is an integral part of the scheme of notification.  The absence of any one item of information would disadvantage an unsuccessful applicant.  There is, therefore, a strong case for saying that, if one of the requirements of s 66(2) has not been complied with, the duty of notification imposed by the section has not been carried out.  (Emphasis added)

31                  The appellant, in effect, contends that the Tribunal committed jurisdictional error in that it was required to be satisfied but could not have been satisfied that the mandatory requirement under s 66(2)(d)(iv) of the Act had been met because the decision letter purporting to constitute notification under s 66(2)(d)(iv) did not identify “where the application for review can be made”. 

32                  The appellant submits that the court should infer, on the balance of probabilities, that no such leaflet was enclosed with the decision letter for the following reasons:

(a)        the documents before the court below were prepared pursuant to an obligation by the Minister to prepare a bundle of all relevant documents and, therefore, if there was any evidence that the leaflet was enclosed, it would have been included in the bundle;

(b)        no evidence as to how it is possible for the leaflet to have been enclosed without a file copy having been retained has been adduced by the Minister.  Such evidence is peculiarly within the Minister’s knowledge yet no explanation for its absence has been provided.  It is submitted that the Court should infer from this that any such evidence would not assist the Minister’s case, a fortiori in circumstances where a Tribunal officer appeared to have expected some record of the inclusion of the brochure to have been retained;

(c)        the Appellant lost the letter sent to him and is unable to recall either way whether the leaflet was enclosed, which does not point to the inclusion of the brochure.  However, he does give evidence that he recalls receiving the letter and the decision record within it.

33                  The first respondent submits that it is not enough for the appellant to say that there was no evidence before the Court below to demonstrate that the leaflet had been enclosed, as there is a presumption of regularity that public acts and duties have been regularly and properly performed: Commonwealth of Australia v Anti-Discrimination Tribunal (Tasmania) (2008) 169 FCR 85 at [76]-[77].  It further submits that in particular, s 66 is predicated on a presumption of validity and compliance:Milon v Minister for Immigration [2009] FMCA 85 at [22]. 

34                  If this presumption has application then it was rebutted by the content of the ‘decision letter’.  This was tendered before the Tribunal as evidence of compliance with s 66(2) of the Act.  It self-evidently does not establish the mandatory requirement under s 66(2)(d)(iv) that there be notification of “where the application for review can be made”.

35                  The concluding paragraph in the decision letter on this point is otherwise ambivalent.  It refers to the leaflet providing information about “how to lodge a review application” as well as “how to contact the MRT if you need further information”.  In either case no address was set out in the decision letter. 

36                  The appellant submits that the present case falls squarely within the principles enunciated in Zhan vMinister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 469.

37                  In Zhan 128 FCR 469, Allsop J held that the Tribunal failed to state where an application for review could be made because a leaflet giving the addresses of registries of the Migration Review Tribunal had been inadvertently not included with the letter purported notification.  His Honour observed at [64]-[67]:

[64]  I also base my conclusion upon s 66(2)(d)(iv). ... Nevertheless, the purpose is to give information as to where the applicant can "make the application", that is, initiate it. The applicant was told that lodgment of documents had to be at "a registry of the Tribunal". No address was given. A leaflet giving that information was not included with the letter and decision record. Mr Smith says that the applicant only had to look up the white pages of the Sydney phone book to find the entry annexed to these reasons.

[65]  However that entry gave no information as to whether level 3, 44 Market St in Sydney was a registry of the Tribunal or its head office or the site of some other activity of the Tribunal. Further inquiry needed to be made.

[66]  The scheme of the Act and regulations is such as to place the risk of postal delays on applicants. The consequences of that are reflected in the facts of this case. Neither the Court nor the Tribunal is empowered to give any extension of time. Parliament, as part of this scheme, requires the Minister or his delegate to provide sufficient information to the applicant to facilitate the timeous filing of an application for review directed to the relevant subject matter. One aspect of that is the requirement to tell the applicant where he or she is to go to make an application. If the registries of the Tribunal had been identified in the phone book it may be that the letter was adequate. I have some doubts about that, but, with no assistance given to the applicant as to the location of the registry of the Tribunal in communication or the phone book, I do not think the delegate has stated in the communication "where" the application may be made.

[67] …. In the context of the crucial importance of timeous filing, I think that s 66(2)(d)(iv) requires some direction to a location where the act of making the application may be done. Merely to state "at a registry of the Tribunal" seems to me to be insufficient. No doubt that was why the leaflet was intended to be included.

38                  However, the first respondent submits that this case may be distinguished on the facts from Zhan because here there is evidence from which it may be inferred that the leaflet was sent with the decision letter. 

39                  The first respondent submits that the evidence supports an inference that the leaflet was included for the following reasons.  First, the decision letter itself provides evidence of the inclusion of a leaflet that provided “information about the review process, how to lodge a review application and how to contact the MRT if you need further information”.  This is a circular argument and is unpersuasive.  Second, the fact that the appellant did in fact file an application in the Perth Registry of the Administrative Appeals Tribunal, albeit out of time, together with the affidavit evidence of the appellant explaining why his application to the Tribunal was late with no suggestion of the lateness being on account of not knowing the whereabouts of the registry, provides a further basis for an inference that the leaflet was included.  I do not agree.  That the appellant did so says nothing of itself as to whether or not the leaflet was enclosed.  Third, during the review the appellant was represented by a legally qualified migration agent who was “investigat[ing]” whether there had been proper notification.  The appellant’s agent was apparently provided with a copy of the Department’s file.  It was never suggested by the appellant, in answer to the Tribunal’s s 359A invitation to comment on the proposition that his application was out of time that there was an issue in connection with inclusion of “the leaflet” or a lack of awareness as to where to file the application for review, as required by s 66(2)(d)(iv).  Once again I do not regard this as evidence that the leaflet was enclosed.

40                  Fourth, the first respondent points to the existence of a Case Note apparently made by Ms Marketa Silhar which is said to reveal an inquiry made by her to the Minister’s delegate confirming that she put the leaflet into the envelope with the decision letter.  The first respondent submits that if leave was granted to the appellant to advance a new ground of judicial review on appeal, the Court should as a condition grant leave to the first respondent to adduce fresh evidence, namely the Case Note, so that any prejudice the Minister would otherwise suffer from the raising of the new ground may be “justly and practicably cured”: NAJT at [166].

41                  Accordingly, the first respondent submits that, if this fresh evidence were admitted the Court would find on the balance of probabilities that a leaflet was enclosed in the decision letter and that it contained information that stated “where the application for review can be made” for the purposes of s 66(2)(d)(iv).

42                  It may be observed immediately that the affidavit of Mr Benjamin May, which the first respondent characterised as fresh evidence, is not, in fact, fresh evidence.  It was evidence which could have been put before the Tribunal and the Court below but was not.  Furthermore, it is hearsay.  Mr May is a solicitor employed by the Australian Government Solicitor.  His affidavit deposes to and annexes, amongst other things, the Case Note apparently made by Ms Marketa Sihar, Team Leader – Client Services 2 of the Migration Review Tribunal, which in turn refers to a phone conversation with the Minister’s delegate, Raewynne James, to the effect that the delegate said that she did include the leaflet with the notification letter (the decision letter) and that she did not normally place a photocopy of the leaflet on file as proof.

43                  The alleged conversation occurred on 5 June 2008.  Ms James, according to the Case Note, did not provide a copy of the leaflet to Ms Sihar.

44                  Mr May, as appears from copy emails annexed to his affidavit, sought to obtain a copy of a leaflet such as the one Ms James was said to have enclosed with the decision letter.  He was sent what was purported to be such a leaflet but discovered that it was one which had not been current in January 2008.  He sought to have a copy which had been available at that time.  Ms Jocelyn Parkes, Senior Legal Officer from the Litigation and Opinions Branch of the Department of Immigration and Citizenship sent one to him.

45                  Ms James did not provide an affidavit.  There is no explanation in the Case Note annexed to Mr May’s affidavit as to how, beyond mere assertion, she was able to say that she included the leaflet with the decision letter which had been sent nearly 6 months prior to the alleged conversation mentioned in the Case Note.

46                  Contrary to the first respondent’s submission the Case Note does not say that Ms James or anyone else “put the leaflet in the envelope” with the notification letter (decision letter).  This is a gloss on the words used in the Case Note.  The Case Note states “She (the delegate) says that she did include the leaflet with the notification letter”.  The Case Note does not state whether it was she or someone else who actually attended to mailing the envelope. 

47                  I will admit the affidavit of Mr May into evidence as a condition of the grant of leave.  However, for the following reasons, I give its contents little weight and do not accept it as proof that the leaflet was included with the envelope sent to the appellant.  Mr May knows nothing of the relevant facts beyond what he has been told third hand.  The account of the alleged conversation recorded in the Case Note is assertive and lacking in the kind of detail which I would have expected on such an important point.  No explanation was given as to why Ms James, the Minister’s delegate did not herself provide an affidavit.

48                  The only objective evidence that something was sent to the appellant on 30 January 2008 is the Registered Post log.  The log for 30 January 2008 discloses something was sent to the appellant by registered post that day by the first respondent.  It does not disclose what it was.  It does not assist the resolution of the question concerning the leaflet.

49                  In my view, the first respondent, at all times, had the burden of establishing its compliance with the provisions of s 66 of the Act and particularly, in this case, s 66(2)(d)(iv).  Such proof ought not be left to inference unless it is the only inference reasonably open in the circumstances.  Such, in my view, is not the case here.  The guillotining effect of the deeming provisions, if effective, as was found here, cut off an applicant’s entitlement to a judicial review.  The consequences for someone in the appellant’s position are most serious.  His prospects of finishing his studies in Australia with all that entails would be dashed.

50                  It is of course regrettable that these matters were not raised below.  However the appellant, a foreign national, was not represented by counsel or a solicitor.  That position has been rectified before this Court. 

51                  The Federal Magistrate could not have been satisfied, on the whole of the evidence, that s 66(2)(d)(iv) had been complied with by the first respondent.  That he was satisfied amounted to a jurisdictional error on his part.  The first respondent did not comply with the statutory requirements for notification to the appellant of the refusal decision or, at least, did not prove that it so complied and accordingly time is still running for the purposes of lodgement of an application for judicial review.  The Tribunal, in those circumstances, contrary to its finding had and continues to have jurisdiction to hear the appellant’s application according to law.

52                  Accordingly I would grant leave to the appellant to raise this ground of appeal and I would allow the appeal.

MERITS: ALLEGED NON-COMPLIANCE WITH S 494B(4)(C)(II) OF THE ACT

Address for the purposes of receiving documents

53                  Regulation 2.16(3) of the Migration Regulations 1994 (Cth) states that 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.

54                  Section 494B(4) and (5) provide:

(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; or

                        (iii)       if the recipient is a minor--the last address for a carer of the minor that is known by the Minister.

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

            (a)        fax; or

            (b)        e‑mail; or

            (c)        other electronic means;

            to:

            (d)        the last fax number, e‑mail address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents; or

            (e)        if the recipient is a minor--the last fax number, e‑mail address or other electronic address, as the case may be, for a carer of the minor that is known by the Minister.

55                  Section 494C(4) and (5) provide:

(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.

56                  The appellant submits that the fact that he provided his residential address on the student visa application form should not be taken to mean that it was provided for the purposes of receiving documents as required by s 494B(4)(c)(ii). 

57                  The appellant in his written response to items 16 and 18 on this form provided his residential addresses in Bangladesh and Australia. He left blank the space in the form for a response to item 20 which asked for an ‘address for correspondence’.  The appellant relies on the decision in Chand v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 140, which examined the status of a now superseded application form which asked the question “to which address do you want notifications/ correspondence sent”.  In that decision, Moore J at [14]-[17] referred to this as the ‘election’ question and concluded that it was in relation to this question in which the correspondence address was to be identified. 

58                  It seems to me that item 20 only requires to be completed if the address for correspondence is different from the residential address in Australia.  For example, the appellant may have had a P.O. Box address for correspondence.  It is unreasonable to treat his failure to complete item 20 as meaning that he had not provided an address for the purposes of receiving documents when he had disclosed his residential address to which obviously documents were capable of being sent by prepaid post or by other prepaid means.

59                  In response to item 21 on the form: “Do you agree to the department communicating with you by fax, e-mail or other electronic means?” the appellant ticked “yes” and provided his email address.  He contends that by doing this he elected to receive correspondence by email, being a method of correspondence that would satisfy s 494B(5).  He also contends that his Australian residential address and Bangladesh residential address were provided merely for identifying as a fact where he lived as opposed to nominating the address as for the purposes of receiving documents. 

60                  In relation to item 73, in the form which stated “All written communications about this application should be sent to”, the appellant ticked a box indicating “Myself”.  The form stipulated that “All written communications will be sent to the address for communications that you have provided in this form”.  The appellant submits that on a proper construction of this response, only the email address fell within the description of an “address for communications”.  However under item 21 is to be found the following, printed “Note: If this visa application is refused you will be notified by mail.” 

61                  Accordingly, the appellant cannot be taken to have nominated or elected to be notified of the delegate of the Minister’s refusal decision by email.  The position is quite to the contrary.

62                  The appellant submits that the only way the Minister could have complied with the requirements of regulation 2.16(3) and s 494B was to send the notification by email to the nominated email address, which it did not do.  For the reasons I have just expressed I reject this submission. 

63                  Moreover the appellant’s submission that communication of the decision notice could only have occurred by email from the first respondent does not sit happily with his submission that in providing his residential address he did not state that he did so “for the purposes of receiving documents”.  The same phrase is used in s 494B(5) concerning communication by email. 

64                  The appellant’s consent to the receipt of communications by email did not oblige the first respondent to communicate with him by that means.  An email address does not constitute an “address” for the purposes of s 494B(4)(c)(i) of the Act.  It is but one of the several methods by which the first respondent may give a document to a person and is expressly provided for in this respect under s 494B(5) of the Act.  It was open to the first respondent to use any one of the methods provided for under s 494B, even to have done so by email despite the content of the note to which I have referred.  Whilst an email address was provided by the appellant to receive correspondence, there is no requirement for the Tribunal to send communication electronically: see Maroun v Minister for Immigration[2009] FMCA 535; Milon v Minister for Immigration [2009] FMCA 85.   

65                  The delegate’s decision letter was sent to the appellant at 3/309 Harborne Street, Glendalough, WA 6016 which was the residential address provided by the appellant on his student visa application form.  It was “the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents”, in compliance with s 494B(4)(ii) of the Act.  That this was provided for those purposes is an objective fact to be inferred from the provision by the appellant of the address in the context of his application to the first respondent in circumstances where, objectively, communication from the first respondent to the appellant was to be expected.

66                  The fact that no “address for correspondence” was provided by the appellant was, in this case, immaterial.  Section 494B specifies alternative methods for giving a document to a person.  Regulation 2.16(3) only requires the Minister to notify an applicant by one of the methods specified in s 494B of the Act.  The Minister sent the notification letter to an address provided for by the appellant.  There was nothing to indicate that the appellant had advised the Minister that his residential address had changed for the purpose of receiving documents.  It appears that the Tribunal was first aware of the appellant’s change of address on 5 June 2008. Case Note 2338894 dated 5 June 2008 written by Ms Sihar, recorded a phone call with the appellant, which  includes the following comments:

I confirmed his current address and he advised me that he was moving this weekend to:

2/305 Drake Street, Morley WA 6062.

I asked him to put his change of address details in writing and send it to the Tribunal ASAP. RA agreed to this.

67                  This ground has no reasonable prospect of success and I would not grant leave to raise it now.

Issue 4

68                  The appellant contends that the Minister failed to notify the second visa applicant of its decision at all.   

69                  Section 52(3C) provides that if, in accordance with the regulations, 2 or more non-citizens apply for visas together, notifications given to any of them about the applications are taken to be given to each of them.  As there was no notification given to the appellant for the purposes of s 66 of the Act there was therefore no such notice given to the second visa applicant.

ORDERS

70                  It follows that, on the ground in respect of which I have granted leave, the appeal should be allowed.  The decision of the Tribunal will be quashed.  There will be a declaration that the Tribunal has jurisdiction to review the decision of the delegate.  The matter will be remitted to the Tribunal to be determined according to law.  The first respondent will be ordered to pay the costs of the appellant in the Court below and on this appeal.  

Associate:        

Dated:         13 April 2010