FEDERAL COURT OF AUSTRALIA

Cheng v Minister for Immigration and Citizenship [2011] FCA 1290

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The Appellant in the present proceeding, Mr Jihui Cheng, applied to the Department of Immigration and Citizenship for a Student (Temporary) (Class TU) visa on 10 March 2010. A delegate refused to grant that visa on 30 April 2010, concluding (in part) as follows:

The applicant has been unable to provide evidence of any course of study undertaken during the accumulative period of almost 9 months of non-study while holding a 571 student visa.

The delegate also considered the prospect of granting other subclasses of visa, but further concluded that Mr Cheng did not satisfy the relevant criteria. A letter dated 30 April 2010 and posted on 4 May 2010 notified Mr Cheng of that refusal.

2    Mr Cheng applied to the Migration Review Tribunal for review of the delegate’s decision on 21 June 2010. The Tribunal, however, on 27 August 2010 concluded that it did not have jurisdiction. The Tribunal found that Mr Cheng was “taken to have been notified” of the delegate’s decision on 11 May 2010 and that the 21 day prescribed period within which the application for review could be lodged expired on 1 June 2010. There was no jurisdiction, the Tribunal concluded, where the application for review had not been received by the Tribunal until 21 June 2010.

3    An application was then filed with the Federal Magistrates Court of Australia seeking review of the Tribunal’s decision. That Court dismissed the application and published its reasons for decision on 24 June 2011: Cheng v Minister for Immigration and Citizenship [2011] FMCA 461.

4    Mr Cheng now appeals to this Court. His Amended Notice of Appeal, in summary form, alleges that the Federal Magistrate erred:

    in failing to find that the decision of the Tribunal was affected by “jurisdictional error” by reason of a denial of “natural justice”;

    in failing to find that “the decision of the Tribunal had failed to make a finding” that the delegate’s decision was “induced or affected by fraudulent or mistaken representation”; and/or

    in the construction and application of s 494B(4) and s 494C(7) of the Migration Act 1958 (Cth).

5    An Outline of Written Submissions has been filed by the Appellant and by the First Respondent.

6    The appeal is to be dismissed.

An Incorrect Address and Notification

7    Mr Cheng’s 10 March 2010 application for a student visa stated in part that his current residential address was “06/31-37 Hassall Street, Parramatta”. The same application form repeated the same address under the heading in the form titled “Contact details”. That part of the form asked any applicant to “Give details of your postal address in Australia” and further provided:

Communicating with you

We can communicate about your application more quickly using e-mail and/or fax. Do you agree to this Department communicating with you via e-mail and/or fax ?

That part of the application form was answered “Yes” and an email address was provided.

8    The 30 April 2010 letter was sent to the Hassall Street address provided. The Tribunal found that the letter had been posted on 4 May 2010.

9    The address provided, however, was incorrect. The correct address was “506/31-37 Hassall Street, Parramatta”. This explains why the letter was returned to the Department as “unclaimed”. The person who had forwarded the 10 March 2010 application for the student visa to the Department – and upon whom Mr Cheng had been placing reliance, Mr Denver Lee – turned out not to be a registered migration agent.

10    Little is known as to the role played by Mr Lee other than that he “assisted” Mr Cheng in enrolling in a course of Business Management. It is not known when Mr Cheng learnt that Mr Lee was not registered. There was, however, a meeting in “early May 2010” when Mr Lee informed Mr Cheng that his “application ha[d] been refused”. When Mr Cheng went to Mr Lee’s office he was also informed that the “decision letter ha[d] been returned to DIAC unclaimed”. Clarification was then sought as to whether the address shown on the 10 March 2010 application form was correct and the mistake apparently then revealed. Mr Lee contacted the Department to inform them of the correct address.

11    Thereafter, on or about 2 June 2010, there was also a telephone conversation between an officer of the Department and Mr Cheng. The officer inquired whether the address, “506/31-37 Hassall Street, Parramatta,” was correct. Mr Cheng told the officer that that was the correct address but that he had already moved on 24 May 2010 to an address in Rhodes. Mr Cheng said that the officer told him that he had six days in which to seek review by the Tribunal. A copy of the 30 April 2010 letter was again sent to Mr Cheng – this time at the Rhodes address. That copy was received by Mr Cheng on 8 June 2010.

12    The application for review was made on 21 June 2010 by a different migration agent on behalf of Mr Cheng, Mr Guan. Mr Guan is also a solicitor. The letter recounted, inter alia, the chronology of events and stated that Mr Guan had first been approached by Mr Cheng for assistance on 18 June 2010. The letter accompanying the application for review extracted the following passage from the 30 April 2010 letter, namely:

You are entitled to apply for a review of this decision. If you decide to lodge a review application, you must do so within 21 calendar days after you receive this letter. You are taken to have received it 7 working days after the date of this letter.

The letter seeking review submitted in part that “21 calendar days must be counted after 8 June 2010. Today is 21 June 2010, and it is within 21 calendar days after 8 June 2010”.

13    On 8 July 2010 the Tribunal wrote to the new migration agent, Mr Guan, and expressed the view that “your application is not a valid application as it was not lodged within the relevant time limit”. The letter continued on to state: “If you wish to make any comments on whether a valid application has been made, you are invited to do so, by 22 July 2010”. There was no response to that invitation.

14    Notwithstanding the letter advising Mr Cheng of the refusal of his student visa and the time within which he could seek review being sent to an erroneous address, both the Tribunal and the Federal Magistrate concluded that there was no jurisdiction for the Tribunal to entertain the application for review which was made on 21 June 2010.

Sections 347, 494B and 494C

15    The three principal provisions of the Migration Act 1958 (Cth) of present relevance are ss 347, 494B and 494C.

16    Section 347(1) provides the manner in which and the time within which an application for review is to be made to the Migration Review Tribunal. That subsection provides in part as follows:

(1)    An application for review of an MRT-reviewable decision must:

(a)    be made in the approved form; and

(b)    be given to the Tribunal within the prescribed period, being a period ending not later than:

(i)    if the MRT-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A) – 28 days after the notification of the decision; or

…

The provision of present relevance is s 338(2). Section 347(1)(b) refers to a “period ending not later than” 28 days after the notification of a decision, including one “covered by” s 338(2). Regulation 4.10(1)(a) of the Migration Regulations specifies a 21 day period. That regulation relevantly provides:

(1)    For paragraph 347 (1) (b) of the Act, the period in which an application for review of an MRT-reviewable decision must be given to the Tribunal:

(a)    if the MRT-reviewable decision is mentioned in subsection 338 (2) or (7A) of the Act – starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received; or

…

An application received outside the time limit prescribed has been held not to be a valid application and one that the Tribunal does not have jurisdiction to review: e.g., Keo v Minister for Immigration and Citizenship [2009] FCA 676, 177 FCR 479. See also: Lee v Minister for Immigration and Multicultural Affairs [2002] FCA 303. The time limits imposed have been described as “stringent”: Han v Minister for Immigration and Multicultural Affairs [2000] FCA 1071 at [21], 103 FCR 517 at 521 per Sackville J.

17    Section 494B provides for the methods by which documents may be given to a person. Section 494B(4) provides as follows:

Dispatch by prepaid post or by other prepaid means

(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.

Given that the 10 March 2010 application for the student visa also provided the Department with an email address for the purpose of communication, albeit Mr Lee’s email address,  494B(5) should also be noted. That subsection provides as follows:

Transmission by fax, e-mail or other electronic means

(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.

18    Section 494C deals with when a person is taken to have received a document. Subsections (4) and (7) provide as follows:

Dispatch by prepaid post or by other prepaid means

(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.

…

Document not given effectively

(7)    If:

(a)    the Minister purports to give a document to a person in accordance with a method specified in section 494B (including in a case covered by section 494A) 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.

19    Section 494C has been described as “a statutory deeming provision”: Minister for Immigration and Citizenship v Manaf [2009] FCA 963 at [21], 111 ALD 437 at 441. Sundberg J there further observed that it “does not create a rebuttable presumption that notification has occurred”. His Honour there went on to refer with approval to the following observations of Spender, Kiefel and Dowsett JJ in Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172:

[13]    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. …

[14]    Spender J, in Murphy v Minister for Immigration & Multicultural & 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 documents 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 proscribes with precision the steps to be taken in notifying a visa applicant of the outcome of his or her application.

Where a document has been sent by a method specified in s 494B(4), s 494C “conclusively deems it to have been received by the person to whom it was sent seven working days after the date of the document”: SZNZL v Minister for Immigration and Citizenship [2010] FCA 621 at [36], 186 FCR 271 at 278. Barker J there went on to observe that “[s]ending a notification letter in accordance with [s 494B(4)] therefore has the result that the notification is taken to have occurred at the end of the relevant period, regardless of whether it was actually received”.

The Tribunal Decision Declining Jurisdiction

20    The findings of facts and reasons of the Tribunal for declining jurisdiction in the present proceeding were expressed as follows:

FINDINGS AND REASONS

13.    The Tribunal has before it the Department’s file no. CLF2010/84727.

14.    The material before the Tribunal indicates, and the Tribunal finds, that the applicant was not in immigration detention when notified of the decision.

15.    The Tribunal finds that the applicant is seeking review of an MRT-reviewable decision covered by s.338(2) and that the applicable prescribed period is 21 days, starting when the applicant was validly notified of the decision in accordance with the Act: s.347(1)(b)(i) and r.4.10(1)(a).

16.    The Tribunal is satisfied that the contents of the delegate’s decision notice complied with the requirements of s.66(2).

17.    The material before the Tribunal indicates that the applicant did not give the Minister written notice under s.494D of the name and address of an authorised recipient and that the decision notice, dated 30 April 2010, was sent by prepaid post on 4 May 2010 from a place in Australia to the applicant at an address in Australia, being the last residential address provided to the Minister by the applicant for the purposes of receiving documents.

18.    As the decision notice was sent by registered mail, the Tribunal made enquiries with the Department’s mail and distribution services, Converga, to determine whether the documents were dispatched within 3 working days. On l July 2010, Converga confirmed that the documents were posted on 4 May 2010, within 3 working days of the date of the decision notice.

19.    The Tribunal finds that the decision notice 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). Therefore, the applicant is taken to have received the notice on 11 May 2010, being 7 working days after the date of the notice.

20.    The Tribunal finds that the applicant was properly notified of the delegate’s decision and is taken to have been notified on 11 May 2010. Therefore, the prescribed period of 21 days within which the application for review could be lodged ended on 1 June 2010.

21.    The application for review was not received by the Tribunal until 21 June 2010, after the prescribed period had expired.

22.    For these reasons, the application for review was not valid and the Tribunal has no jurisdiction in this matter.

DECISION

23.    The Tribunal does not have jurisdiction in this matter.

A Denial of Natural Justice?

21    The first Ground of Appeal advanced on behalf of Mr Cheng, seeking to challenge the decision as to an absence of jurisdiction, alleges a “fail[ure] to give … natural justice”. This Ground was expressed in the Amended Notice of Appeal (without alteration) as follows:

1.    Her Honour erred in failing to find that the decision of the Migration Review Tribunal (“the Tribunal”) was affected by jurisdictional error because the Tribunal had failed to give the Appellant natural justice in determining that it had no jurisdiction in the application before it, by:

(a)    totally disregarding submissions made by the Appellant setting out the circumstances of the notification errors caused by a third party to the First Respondent, and

(b)    failing to discharge its duties under s 494C(7) of the Migration Act.

So expressed, it is uncertain whether the argument is really one as to a denial of natural justice or an argument as to the correct construction and application of s 494C(7). Perhaps it was intended to be both. However the Ground may be construed, it is to be rejected.

22    Notwithstanding differences in language between the manner in which the present Ground of Appeal is expressed when compared with the ground advanced before the Federal Magistrate, it is considered that the arguments now sought to be raised on appeal were arguments that were raised before the Federal Magistrate.

23    Although it was difficult to discern the precise argument now sought to be advanced on appeal, it was understood that the essence of the natural justice argument focuses upon the contention that Mr Cheng was not told – and was not given an opportunity to comment upon – either:

    the fact that the 30 April 2010 letter was returned unclaimed; and

    whether the letter had been resent to “506/31-37 Hassall Street” and whether that letter had also been returned unclaimed.

Whatever other difficulties Mr Cheng may have arising out of the application of s 494B or s 494C to the facts of his case, any argument as to a denial of procedural fairness emanating from such a lack of opportunity is without substance.

24    The fact is that he was told by telephone on 2 June 2010 that he had six days within which he could seek review. Having been told that, he (for whatever reason) only approached Mr Guan on 18 June 2010. He had an opportunity to file an application for review within the time prescribed by the legislature, namely 21 days. An opportunity to comment upon the reasons why a letter was returned unclaimed or why the incorrect address had been provided in the 10 March 2010 application, only assumed any significance if he failed to file his application for review within time.

25    Why Mr Cheng did not file an application for review within the six days following 2 June 2010 and why he delayed until 18 June 2010 before approaching Mr Guan was not explained.

26    The fact remains that he did not seek review and there is no power vested in the Tribunal to extend the time within which an application for review may be made. No suggestion is made that the telephone conversation that occurred on 2 June 2010 led Mr Cheng to believe that time could be extended; the conversation, apparently, was to the opposite effect and the need to act promptly was stressed. Nor could any misconstruction of the text of the 30 April 2010 letter preclude the 21 day period running in accordance with the provisions of s 494C(4): Singh v Minister for Immigration and Citizenship [2011] FCAFC 27, 190 FCR 552. Keane CJ, Collier and Logan JJ observed:

[48]    In this regard, those who seek the benefits of the Act and officers of the executive government are equally bound by the provisions of the Act. Neither the officers of the Department nor the Tribunal have any legal authority to vary the prescriptions of the Act and Regulations. They could not, by express agreement with the appellants, alter the timetable applicable under the Act and Regulations: a fortiori, their conduct could not give rise to an estoppel having the same effect.

[49]    [I]t is necessary to understand that the rights enjoyed by the appellants as visa holders were created by the Act, and the Act determined the extent of those rights and the conditions on which they might continue to be enjoyed. Parliament has made it quite clear that the rights of review conferred on the appellants were to be exercised within a short time frame. This time frame may not be extended by officers of the executive government, the Tribunal or the courts. It is a matter for the legislature to fix the time limits for the exercise of the rights conferred by the Act; neither officers of the executive government, nor the Tribunal, nor the courts, have authority to set aside or vary the provisions made by Parliament. That having been said, it should also be noted that in this case there does not appear to have been any reason why the appellants could not have made their application for review to the Tribunal within the time fixed by the notification of 5 March.

27    Even if it were to be concluded that Mr Cheng had an entitlement to be heard, it is difficult in any event to envisage what it is that he could have meaningfully said.

28    There were potentially two issues to be addressed – one being the reasons why an application was not made within time and whether there is any ability to extend time; the second being the factual basis upon which the decision refusing the student visa was said to be wrong. This second area of discourse would only arise, of course, if the Tribunal assumed jurisdiction. Perhaps because there had been a decision as to an absence of jurisdiction, more attention has understandably been focussed upon the former issue rather than the latter.

29    Given the absence of any power to extend the time within which an application for review may be made, and an apparent acceptance of the underlying factual basis upon which the Tribunal declined jurisdiction, the utility of extending any opportunity to be heard in respect to the return of the letter and the circumstances in which the erroneous address was provided remains elusive. It may well have been “a hollow opportunity”: SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 at [39] per Bennett J. “Whether one talks in terms of procedural fairness or natural justice”, it will be recalled that “the concern of the law is to avoid practical injustice”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 at [37], 214 CLR 1 at 14 per Gleeson CJ. See also: Button v R [2010] NSWCCA 264 at [15] per Latham J (Simpson and Kirby JJ agreeing); Medan v R [2011] WASCA 142 at [59] per Buss JA (Pullin JA and Hall J agreeing); Re Roth; Ex parte Cazaly Iron Pty Ltd [2011] WASC 226 at [30] per Beech J. In SZNZL [2010] FCA 621 at [46], 186 FCR 271 at 279 a question was similarly raised as to whether “issues of procedural fairness arise in connection with the Tribunal’s consideration of whether it has jurisdiction”.

30    Where there is a genuine dispute as to the facts, including whether or not a letter was in fact posted or where there is a discretion to extend time, an opportunity to be heard may have some utility. But that is not the present case.

31    An opportunity to make submissions as to jurisdiction, however, was extended to Mr Cheng. The Tribunal extended that opportunity by its letter dated 8 July 2010. The relevant chronology of events was set forth in that letter. The fact that the letter did not refer to either the return of the 30 April 2010 letter or whether it had been re-sent did not deprive Mr Cheng of an opportunity to be heard in respect to the manner in which jurisdiction was to be resolved.

32    Moreover, it should perhaps be recalled that the origin of the present dispute was the delegate’s decision refusing the now Appellant a student visa. The legislature has afforded unsuccessful claimants an opportunity to seek review on the merits by the Migration Review Tribunal. There is no suggestion in the present case that a period of six days was an inadequate period of time in which to make such submissions as Mr Cheng saw fit in respect to the refusal of his student visa. Given the confined basis upon which the delegate made the decision to refuse the visa, there is no suggestion in the present case that Mr Cheng was unable to or even attempted to collate such materials as he wished to place before the Tribunal for its consideration. When Mr Guan made the submission on 21 June 2010 that the 21 day period should run from 8 June 2010, reliance was only placed upon the chronology of events as to when Mr Cheng received notice; no substantive submission was then made that Mr Cheng could not have made an application for review to the Tribunal within the six day period of which he was advised. The letter dated 21 June 2010 only obliquely referred to the merits of the delegate’s decision when Mr Guan made reference to a number of regulations and concluded: “The applicant told me that he was enrolled in a course for that period of time”. But no further details were provided.

33    There has been no denial of natural justice in the present case for Mr Cheng and relief would have been refused in the exercise of discretion even had a denial been established. It has been assumed in Mr Cheng’s favour, of course, that he was entitled to the procedural protection afforded by the principles of natural justice. Whether the source of the application of those principles was to be found in the common law, or whether any common law principles have been excluded by the provisions of the Migration Act, given the conclusions reached, need not now be resolved.

34    As also noted in Singh [2011] FCAFC 27 at [44], 190 FCR 552 at 564, any question as to whether a “defective notice” may be “cured under s 494C(7)” arises only if the 30 April 2010 letter was defective. As in Singh, the 30 April 2010 letter was sent to the address provided. It was not defective. Whether the mistake in the initial provision of the Hassall Street address is to be attributed to either Mr Lee or Mr Cheng, that was the address in fact provided. There is no “error” on the part of the Minister or his delegate in sending the 30 April 2010 letter to the address provided. There is no “error” for the purposes of s 494C(7).

35    The first Ground of Appeal is dismissed.

Fraud or Mistaken Representation?

36    The second and third Grounds of Appeal as set forth in the Amended Notice of Appeal were expressed (without alteration) as follows:

2.    Her Honour erred in failing to find that the decision of the Tribunal had failed to make a finding that the notification of a delegate of the First Respondent’s decision to the Appellant was induced or affected by fraudulent or mistaken representation, and consequent to this fraud or mistake the Tribunal did not exercise its jurisdiction.

PARTICULARS

a.    The Appellant’s former migration advisor had provided an incorrect address for service of documents in his visa application.

b.    The advisor, not being a properly registered migration agent, withheld the fact that the Appellant was in fact represented in the process of his visa application. The advisor had deliberately failed to give his own information as an authorised recipient under s 494D. Further, the advisor had fraudulently impersonated the Appellant in his communications with the First Respondent on emails and telephone calls.

c.    Consequently, the notification of visa refusal was sent to the incorrect address, without the Appellant knowing it or receiving it in time, and without any possible way that the First Respondent could notify the Appellant properly under s 494C.

d.    The Tribunal had been informed of these circumstances fully, yet still relied on the deeming clause under s 494C(4) to refuse to exercise its jurisdiction.

e.    Her Honour erred in upholding the Tribunal’s decision.

FURTHER, or in the alternative to Ground 2:

3.    Her Honour erred in failing to find the Tribunal’s decision not to exercise its jurisdiction in the application before it had been affected by jurisdictional error because in determining jurisdiction the Tribunal had failed to consider the circumstances of fraudulently or mistakenly provided address details that had in effect disabled the First Respondent’s proper notification process under the Migration Act and the Migration Regulations, thus adversely impacting the appellant’s rights to receive notification of its decision in time.

PARTICULARS

Particulars stated in Ground 2 apply.

37    The “fraud” or “mistaken representation” sought to be attributed to Mr Lee emanates from the 10 March 2010 application. That application was apparently completed “online” by Mr Lee on Mr Cheng’s behalf. Significance is sought to be ascribed to the following question and answer:

As was the conclusion of the Federal Magistrate, it is not considered that the manner in which the application form was completed constitutes fraud.

38    Notwithstanding the fact that Mr Cheng prepared an affidavit for use in the Federal Magistrates Court, no attempt was there made to make out any case of fraud or even mistake on the part of Mr Lee. That affidavit fails to set forth in any detail the instructions given by Mr Cheng to Mr Lee. Although the practical difficulties of securing any evidence from Mr Lee may be recognised, no attempt was made by Mr Cheng to set forth at least his side of any conversation he may have had in respect to – for example – the address he provided to Mr Lee or whether anything was said as to whether Mr Cheng had his own email address or whether the form should be completed using Mr Lee’s email address. All that the affidavit relevantly set out to establish was that Mr Cheng went to Mr Lee and that he later found out that he was not a registered migration agent. There was also a question raised by Mr Lee when he and Mr Cheng met in “early May 2010” as to whether the address shown on the 10 March 2010 application was correct. Presumably an inference is available that on that occasion nothing was said as to any necessity to lodge an application for review within 21 days.

39    But such limited facts fail to establish fraud or even the fact that the 10 March 2010 application had not been completed in accordance with instructions previously provided. The written submissions advanced on behalf of Mr Cheng that Mr Lee “answered fraudulently” or that he “impersonated the Appellant” are no substitute for evidence.

40    No conclusion is open other than that the address provided was a mistake. But it is unknown whether the mistake may be attributed to erroneous instructions initially provided by Mr Cheng to Mr Lee or in a mistake on Mr Lee’s part in recording the instructions provided. No inference is open that the erroneous address provided in the 10 March 2010 application was provided with any intention to mislead or deceive; there was no reason to do so. As in Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17, 245 ALR 501, there is an insufficient evidential basis upon which any finding as to fraud may be founded. Tamberlin, Finn and Dowsett JJ there concluded:

[32] We have already indicated that we do not consider that a finding that the agent was unregistered was open on the evidence. Even assuming it was, and assuming, moreover, that the respondent was thereby misled, we do not consider that all of the agent’s acts or omissions vis-à-vis the respondent are thereby to be characterised as dishonest. Nor do we consider that any particular such act or omission which directly effects the Tribunal’s discharge of its imperative statutory functions in a manner which is adverse to a person seeking review can in turn be characterised as a “fraud on the Tribunal”.

[33] … The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal. As we have indicated, particularly having regard to the level of satisfaction required by Briginshaw v Briginshaw (1938) 60 CLR 336 at 363 and 368 in cases where fraud is alleged, we do not consider that it was open to his Honour to infer fraud.

See also: SZMGX v Minister for Immigration and Citizenship [2009] FCAFC 67 at [25] per Bennett, Reeves and Foster JJ; SZNNJ v Minister for Immigration and Citizenship [2009] FCA 1356 at [21] per Cowdroy J.

41    Whatever may be the source of the mistake or the reason for it, the mistake cannot deny the legal consequences attaching to the posting of the letter by reason of ss 494B and 494C. As stated by Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [53], 232 CLR 189 at 207:

[53] … [T]here are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. …

The sending of the letter to the address provided cannot so vitiate the decision of the Tribunal that it can be concluded that it failed to exercise its jurisdiction. The 30 April 2010 letter was sent to that address and thereafter s 494B(4) operated according to its terms. Section 494C operated as “a statutory deeming provision”. Given those facts, the Tribunal would have erred had it purported to extend time or to assume jurisdiction.

42    The second and third Grounds of Appeal are dismissed.

Misinterpretation and Misapplication of Sections 494B(4) and 494C(7)

43    The fourth Ground of Appeal as set forth in the Amended Notice of Appeal provides (without alteration) as follows:

4.    Her Honour misinterpreted or misapplied the statutory requirements in relation to notification under the Migration Act and the Migration Regulations by:

(a)    misinterpreting “the last residential … address for service” in s 494B(4)(c)(ii) of the Migration Act as not including the plural, disregarding two later addresses for service while three addresses had been provided to the First Respondent, and

(b)    misapplying or misinterpreting the statutory requirements on notification by finding the Tribunal had no duty to consider whether to exercise its jurisdiction under s 494C(7) once the s 494B procedural requirements were found satisfied, while there had been obvious defects or errors in the notification process as provided by statute.

(c)    failing to find that the circumstances of the matter could not satisfy the statutory requirement of notification under s 494B(4), in that the first address for service was in fact NOT “provided to the Minister by the recipient”.

To some extent, the reliance placed upon s 494C(7) may add little to the first Ground of Appeal if that Ground is construed as intending to embrace an argument that there was a denial of natural justice by both the Tribunal and the Federal Magistrate by reason of Mr Cheng not having an opportunity to advance his present argument. The difficulty in accepting an argument that there has been a denial of natural justice by reason of not putting a submission when there was an opportunity to do so may be left to one side.

44    This proposed Ground, it is understood, is intended to focus attention upon the construction and application of s 494B(4)(c)(ii) rather than upon any question as to whether or not there was previously an opportunity to advance the same argument. The proposed Ground, however, confronts a number of additional difficulties.

45    First, it is difficult to discern the manner in which it is contended on behalf of Mr Cheng that s 494B(4)(c)(ii) had been “misinterpreted or misapplied”. It is understood that Mr Cheng wishes to contend that there were a number of addresses provided to the Department, namely:

    one being the incorrect address first provided;

    the second being the corrected address;

    the third being the Rhodes address.

No reliance is placed upon the email address. The contention, it is understood, is that the Tribunal erred in not regarding the Rhodes address as “the last residential … address for service” in s 494B(4)(c)(ii).

46    But, as at the date upon which the 30 April 2010 letter was sent to Mr Cheng, there was only one address. And that letter was sent to the last residential address then “provided to the Minister”, namely the address provided in the 10 March 2010 application. That application unequivocally identified “06/31-37 Hassall Street” as the residential address of Mr Cheng. The fact that this address was erroneous and the fact that Mr Lee was not a registered migration agent does not alter the fact that the form of application set forth the address “provided … by the recipient” for the purposes of s 494B(4)(c)(ii). The fact that the Department and its officers were told after the 30 April 2010 letter had been posted that the address “provided” was erroneous does not strip the posting of that letter in accordance with the manner permitted by s 494B(4) of legal effectiveness.

47    In the absence of any reason to reach a contrary conclusion, the “duty” of the Tribunal was to consider the application before it and to apply the law. And that is what it did. Before the Tribunal was evidence that the 30 April 2010 letter had been sent in accordance with s 494B. Section 494C(4) then operated to identify the date when Mr Cheng was “taken to have received” the letter. Mr Cheng then had 21 days in which to apply for review. He failed to do so. The Tribunal accordingly concluded it did not have jurisdiction.

48    Assuming that there is otherwise merit in the argument that the address to which the 30 April 2010 letter was sent was not an “address provided … by” Mr Cheng (but rather by Mr Lee), the factual foundation for any such argument is missing. The evidence is simply that Mr Lee provided “assistance” to Mr Cheng, presumably that assistance extending to the identification of the address to which correspondence should be forwarded. There is no reason to now seek to qualify the extent of the “assistance” provided. Mr Cheng had the opportunity when he prepared his affidavit to lay the groundwork for a submission that he did not “provide” the address in the application form. But he did not do so. Had he attempted to do so, the Respondent Minister may have asked more questions in cross-examination.

49    It was presumably in recognition of the manner in which s 494C(4) operated that Mr Cheng sought to rely in his proposed new Ground of Appeal upon the existence of a “duty”.

50    The source of any “duty” on the part of the Tribunal – as canvassed in the proposed fourth Ground of Appeal – and the content of any such “duty” remained elusive. Left uncertain was what was intended to be conveyed by the expression “duty to consider whether to exercise its jurisdiction under s 494C(7) once the s 494B procedural requirements were found satisfied”. Section 494C(7) is simply not a provision conferring any “jurisdiction” or “duty”. It is a provision which dictates when a person “is taken to have received” a document in the circumstances there identified.

51    The Outline of Written Submissions filed on behalf of Mr Cheng nevertheless referred to the reasons for decision of the Tribunal and sought to give greater clarification as to the source and content of the “duty” sought to be relied upon as follows:

37.    Further, despite that the Tribunal found satisfactorily all the elements of s 494B were present, it does not discharge its duty to enquire whether s 494C(7) was applicable. The appellant contends that a finding of the first respondent satisfying s 494B should not lead automatically to a finding that it is not bound to consider s 494C(7). The appellant says the Tribunal needs to apply both tests in his circumstances, as distinguished from Singh.

38.    In Singh, the appellant had nominated a migration advisor, who was a properly registered migration agent and had supplied two correct addresses but specified only one to be used for service. The Full Court found that since s 494B was satisfied, there was no need to consider s 494C(7) in those circumstances.

39.    In the present case, the appellant was represented by an agent not properly registered, and this representation was not conveyed to the first respondent throughout the application process. Further, this agent gave an incorrect address for service.

40.    The consideration of the elements as set out in s 494C(7) is an duty that the Tribunal must perform, which it failed to do so. Her Honor erred in finding that this duty did not arise after the Tribunal considering s 494B.

These submissions again referred to s 494C(7) and a “duty that the Tribunal must perform, which it failed to do”.

52    In Singh v Minister for Immigration and Citizenship, supra, two notices of visa cancellation had been forwarded to the two appellants by a delegate of the Minister. The first notice had been sent to the migration agent’s post office box; after a complaint made by the migration agent, a second notice was forwarded to the migration agent’s street address. The second notice stated a later deadline for review. The appellants applied for review after the date specified in the first notice but before the expiration of the date in the second notice. The Tribunal dismissed the applications as out of time. This decision was upheld by both the Federal Magistrate and the Full Court. It is, with respect, difficult to distil from the reasons of the Full Court any support for a “duty” – presumably – that the Tribunal must consider “the elements as set out in s 494C(7)” in a manner which assists Mr Cheng.

53    The manner in which that decision was sought to be relied upon by Mr Guan was, with respect, not explained. In the present proceeding, and unlike the situation in Singh, the delegate had not sent two notices specifying different deadlines for seeking review. Only one letter had been sent, namely the 30 April 2010 letter. The fact that a further copy of that same letter was sent to Mr Cheng does not make the present proceeding comparable to that confronting the Court in Singh. Section 494C(7) in the present proceeding was simply not engaged because there had been no “error” on the part of the delegate.

54    Moreover, the decision in Singh, as Mr Guan pointed out, was handed down on 4 March 2011. The hearing before the Federal Magistrate in this proceeding took place on 21 March 2011. Mr Guan’s written submissions curiously stated that: “It was not possible to identify and differentiate the issues raised in that case in a timely manner for the appellant”. It may well be queried whether that is a satisfactory explanation for not previously raising the argument now sought to be raised on appeal. But that possible explanation can be left to one side. The absence of any apparent merit in the proposed Ground of Appeal perhaps assumes greater importance.

55    This fourth Ground of Appeal was not raised before the Federal Magistrate. Although new arguments can be raised on appeal, no leave to do so should be granted where the new argument is without any apparent merit and where it has the potential to prejudice an opposing party.

56    Leave to raise the fourth and final Ground of Appeal is refused.

Conclusions

57    Left to one side is whether any of the first three Grounds of Appeal, even if made out, would also have been a sufficient basis upon which the decision of the Tribunal could have been set aside.

58    None of these Grounds of Appeal have been made out.

59    Leave to raise the fourth Ground of Appeal is refused.

60    The appeal is to be dismissed.

61    There is no reason why the normal rule as to costs should not apply such that Mr Cheng should pay the costs of the First Respondent.

ORDERS

The Orders of the Court are:

1.    The appeal is dismissed.

2.    The Appellant is to pay the costs of the First Respondent.

Associate:

Dated:    11 November 2011