FEDERAL COURT OF AUSTRALIA

Haque v Minister for Immigration & Citizenship (No 3) [2010] FCA 772

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the costs of the first respondent to be taxed if not agreed.    

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.

2                     The appellant lodged an application for a Student (Temporary) (Class TU) visa with the Department of Immigration and Citizenship (Department) 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).  

The Tribunal

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 that 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 to 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 (Decision Record), 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.  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. 

The Federal Magistrates Court

6                     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.  Primarily, 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.  

7                     The Federal Magistrate concluded that the Tribunal had before it adequate evidence to arrive at the factual conclusions that it did, and in particular 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. 

8                     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 appellant on 8 February 2008.

9                     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.

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

The present appeal

11                  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.

12                  In effect, there are three separate grounds constituted by first, (a) and (b) read together, second (a) and (c) read together and third by 1(d).

13                  At the initial hearing of the appeal the appellant submitted that, properly understood, the grounds of alleged non-compliance with s 66(1) and (2) of the Act were before the Federal Magistrate.  He contended 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                  He then submitted that, in any event, the Court should grant leave to raise these grounds. 

15                  Following an adjournment for consideration I concluded that these were indeed new grounds raised for the first time.  I granted leave to the appellant to raise only the first ground namely his complaint of jurisdictional error arising from the asserted failure on the part of the first respondent to prove compliance with s 66(2)(d)(iv) of the Act.  

16                  At the final hearing of the appeal on 16 June 2010 the appellant, without objection, sought leave to amend his grounds of appeal primarily to reflect only the ground on which leave was granted.  The ground as amended is in these terms:

1.         The learned Federal Magistrate erred by failing to find that the Second Respondent (“Tribunal”) committed jurisdictional error by failing to exercise its jurisdiction or that the Tribunal would have jurisdiction upon proper notification of the delegate’s decision.

Particulars

            (a)        The Tribunal had (or will have upon proper notification of the delegate’s decision) jurisdiction to conduct a review of the delegate’s decision.  This is because the notification of the delegate’s decision did not comply with section 66(2)(d)(iv) of the Act, whereas strick compliance is required.

The Legislation

17                  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)

18                  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)

19                  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.

20                  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)

21                  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”. 

22                  Whilst the final paragraph of the Decision Letter 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”, it does not state at which address(es) a review application might be lodged.  This information, according to the first respondent, was contained in the leaflet.

23                  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.

24                  In Zhan, 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.

25                  However, the first respondent submits that this case may be distinguished on the facts from Zhan because here there is evidence, both direct and indirect, that a leaflet was sent with the Decision Letter. 

26                  It is for the appellant to demonstrate jurisdictional error.  The appellant acknowledged that he had this onus but that it was sufficient for him to discharge this onus by proving a negative proposition namely that he did not in fact receive the leaflet with the Decision Letter.  He cited the well-known passage from Apollo Shower Screens Pty Limited v Building and Construction Industry Long Service Payments Corporations (1985) 1 NSWLR 561 at 564-565:

What the plaintiffs have to prove in the present proceedings is really in the nature of a negative proposition …. The onus in these proceedings lies on the plaintiffs to prove the negative.  The burden of proof required to satisfy such an onus is not usually difficult to discharge, particularly where (as in the present case) the other party has the greater means to produce evidence which contradicts the negative proposition for which the onus-carrying party contends.

and later

… where the facts are peculiarly within the knowledge of one party, … all evidence is to be weighed according to the proof which it was in the power of one side to produce, and in the power of the other to have contradicted. 

27                  This authority was recently referred to by the Full Court on this point with apparent approval: Worimi v Worimi Local Aboriginal Land Council (2010) 181 FCR 320 at [71].

28                  The appellant submits that the negative proposition is demonstrated inferentially, on a prima facie basis, from the first respondent’s own records which disclose that no copy of the leaflet was kept on file together with the Decision Letter and the Decision Record. 

29                  I do not accept that the negative proposition has been established.  If it did arise by inference on such a prima facie basis then the explanation of Ms James, which I have accepted, as to why a copy of the leaflet was not kept on file, displaces that inference. 

30                  Counsel for the appellant acknowledged that there was not only no other evidence to prove the negative proposition but that “the appellant (could) not give much useful evidence because his evidence is that he did not recall whether or not the leaflet was enclosed …”.  The appellant did not prove a negative fact namely that the leaflet was not included.  The evidence on that question was, at best, neutral as I will now explain. 

31                  The appellant, through his counsel, accepts that he received the Decision Letter and a copy of the Decision Record although he did not give evidence before me.  Accordingly, he did not give positive evidence that he did not receive the leaflet together with the Decision Letter and the Decision Record.  At its highest the evidence points to a conclusion that he does not know whether or not he received the leaflet.  In a written Case Note, again by Ms Silhar of the MRT, she records a telephone conversation with the appellant on 5 June 2008 when he told her that he could not find any paperwork from the Department and could not remember what paperwork he had been sent.  In his written submissions on the appeal the appellant refers to this Case Note and makes the submission that he had lost the letter (the Decision Letter) and was unable to recall one way or the other whether the leaflet was enclosed.  In an affidavit sworn by the appellant on 10 March 2009 in support of his application for judicial review to the Federal Magistrates Court he deposed at para 30 that “On or around mid February 2008 I received a registered letter from the Department informing me that the Department and/or his delegate had refused my Student (Temporary) (Class TU) (subclass 573DD) visa application, being the primary decision dated 30 January 2008.”  I find on the basis of all of this evidence that the appellant did receive the Decision Letter and the Decision Record.  Indeed in his written submissions he accepts this to be the position. 

32                  In any event, it is in my view, on the totality of the evidence, for the following reasons, probable that the leaflet referred to in the Decision Letter was enclosed with that letter. 

33                  Following the grant of leave to the appellant to raise his new ground I gave leave to the first respondent to lead evidence by way of affidavit from Ms Raewynn James affirmed on 10 June 2010.  The appellant did not oppose the grant of leave.  It was conditioned on Ms James being available for cross-examination. 

34                  Ms James is employed in the Department of Immigration and Citizenship.  In January 2008 she was a Client Service Officer in the Client Service Branch of the Department in Perth.  Her duties included assessing and making decisions in relation to a range of visa applications including student visa applications.  Her written evidence was adduced upon the jurisdictional fact issue as to whether there had been compliance with s 66(2)(d)(iv) of the Act.  She was extensively cross-examined upon her affidavit.

35                  In her written evidence she said that she could not recall making the decision concerning the appellant or signing the Decision Letter.  Nor did she have any specific recollection of arranging for the Decision Letter to be mailed to the appellant.  She explained, reasonably in my view that this was due to the passage of about two and a half years since the time in question.  However, she described her usual practice in relation to the despatch of such decisions which was to enclose a copy of the relevant Decision Record and Tribunal leaflet with the letter informing the applicant of the outcome of the application.  Her usual practice, at that time, was not to include a copy of the Tribunal leaflet on the file as it was a generic document and because the Decision Record referred to the leaflet.  I take her to mean that the Decision Letter, not the Decision Record, referred to the leaflet.  She said that in her previous employment with a government department that it was not a requirement to place copies on the relevant files of such generic documents sent with correspondence and at that time she had not been aware of any requirement for it to be done by the Department.  I accept her explanation and do not regard the omission of a copy leaflet from the Department’s file as evidence necessarily giving rise to an inference that a leaflet was not enclosed with the Decision Letter.  In June 2010 she obtained what she was told by Ms Diedre King, an employee at the Migration Review Tribunal, was a copy of the M10 brochure that was current as at January 2008.  It is a brochure such as this which she says, following her usual practice, she would have enclosed with the Decision Letter to the appellant and which is described in the Decision Letter as the ‘leaflet’. 

36                  She said that her usual practice in notifying a decision to a client was to print two copies of the Notification of Decision and the Decision Record, review the documents, attach the MRT leaflet M10 to one copy of the Notification of Decision and Decision Record and place it in an envelope.  The ‘Notification of Decision’ in this case is the Decision Letter.  She would then stamp the envelope with the ‘registered mail’ stamp and place this in the outwards mail tray for Client Services.  The mail tray would be cleared several times a day by Converga, the Department’s mail services contractor, and the mailing of the letter recorded by Converga and sent to Australia Post in the next daily mail pickup from the Department.  There was annexed to her affidavit a copy of a Converga registered post record recording the appellant’s name and dated 30 January 2008. 

37                  She said, in cross-examination, in effect, that she invariably followed her ‘usual practice’ as I have described above.  I accept her evidence in this respect. 

38                  When pressed repeatedly in cross-examination about her compliance with her usual practice Ms James said that it was her practice to ‘double-check’ that the ‘M10’, as she called it, was included with the Decision Letter.  She had not mentioned this aspect of her usual practice in her affidavit.  I do not regard her failure to do so as evidence of recent invention or embellishment.  She said it was an oversight not to have included this in her affidavit.  I accept that explanation.  As counsel for the first respondent submits, and I agree, it is not uncommon for a witness to expand in such a way, in answer to more detailed questions in cross-examination. 

39                  Ms James struck me as a careful and intelligent young woman.  Her evidence was coherent and persuasive.  She had nothing to gain or lose from telling other than the truth.  She gave a very clear explanation as to why, about four months after the date the letter was sent she had told Ms Makita Silhar from the MRT that she had enclosed the leaflet.  She said, as I explained earlier, that, at that time, she was confident that this was the position.  On this basis I find that Ms James included, what she described in the 5 June email, as “a copy of the M10” leaflet with the Decision Letter.  Her evidence before me, some 2½ years later, that she could not recall actually following that practice is as unsurprising as it is candid.  It does not alter the conclusion to which I have come that she included the M10 leaflet with the Decision Letter.  Had Ms James not been an honest witness she could readily have given evidence that she in fact recalled, at the time of the hearing of the appeal, that she had included the leaflet with the Decision Letter.  That she did not do so is the hallmark of a careful and honest witness. 

40                  Included as annexures to her affidavit are two documents dated 5 June 2008.  The first document is a copy of an email from Ms James addressed to Ms Silhar and was sent following a telephone conversation between the two the day before.  The email refers to that telephone conversation and states that “a copy of the M10 was included in the refusal letter”.  The reference to ‘M10’ is an apparent reference to the leaflet in the ‘refusal letter’, which is the Decision Letter.  The second document is a copy of Case Note 2338910 created by Ms Silhar which notes the telephone conversation with Ms James including a note that Ms James had told her that “she did include the leaflet with the notification letter and the decision record to the client and did not normally place a photocopy of the leaflet on file as proof.”  The ‘notification letter’ is the Decision Letter.  Ms James said that she is confident that her recollection, at that time, that she had included the M10 with the Decision letter, was accurate.  This conversation occurred approximately four months after the Decision Letter had been despatched.  She further explained that as at the time of the Decision Letter she had only done five student visa refusals.

41                  The M10 leaflet includes detailed information as to where applicants could lodge in person, post or fax, their applications.  This included the addresses of the Registries of the Tribunal in New South Wales and Victoria as well as those of the Registries of the Administrative Appeals Tribunal (AAT) in Queensland, South Australia and Western Australia.  The leaflet explained that the AAT receives applications on behalf of the Tribunal.

42                  The first respondent submits that the M10 leaflet produced by Ms James was a business record within the meaning of s 69 of the Evidence Act 1995 (Cth).  However it is not a representation contained in the M10 leaflet which the first respondent seeks to prove.  Rather it is the fact that it was a document in the same terms which was sent to the appellant.  Section 69 is not directed to that purpose.  The question is whether it was the leaflet current as at 30 January 2008.  On its face it bears the description ‘M10 (February 2007)’ at the foot of each page.  Ms James was told by Ms Deidre King from the Tribunal that it was the version then in use.  This evidence is inadmissible hearsay.  Ms King did not give evidence.  There was no evidence that she was ‘unavailable’ within the meaning of s 63(1) of the Evidence Act.  It is not clear whether Ms King herself was relaying information from her own knowledge or whether it was also hearsay.

43                  Nonetheless, I find that the M10 leaflet in evidence was, on the balance of probabilities, the then current leaflet sent to the appellant.  I have found that the leaflet which Ms James sent was an ‘M10 leaflet’.  This is how the leaflet in evidence is styled.  It predates 30 January 2008, the date of the Decision Letter. 

44                  Apart from this I infer from the fact that the Decision Letter stated that the leaflet provided information as to “how to lodge a review application” that this included the address where such an application could be lodged.  I am fortified in this conclusion for two further reasons.  First, the fact that the appellant did in fact file an application in the Perth Registry of the Administrative Appeals Tribunal, albeit out of time.  The appellant’s affidavit of 10 March 2009 explained the reason for the delay was because of “my misunderstanding and miscalculation about the lodgement date”, and there was no suggestion that the lateness was on account of not knowing the whereabouts of the registry.  Second, 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). 

45                  Accordingly this case falls to be distinguished on the facts from the case of Zhan.  The evidence taken as a whole supports the conclusion that s 66(2)(d)(iv) was complied with by the first respondent.

46                  The appeal should be dismissed with costs.

Associate:        

Dated:         23 July 2010