FEDERAL COURT OF AUSTRALIA

Butt v Minister for Immigration and Border Protection [2014] FCA 1354

THE COURT ORDERS THAT:

1.    The first respondent has leave to rely on the affidavit of Mr Lorenzo De Vera, affirmed 10 September 2014.

2.    The appeal is dismissed.

3.    The first respondent is to pay directly to counsel for the appellant costs in relation to the preparation and filing of written submissions after the conclusion of the appeal, such costs fixed in the sum of $2500.

4.    The appellant pay the first respondent’s costs of and incidental to the appeal, excluding the costs of preparing and filing written submissions on behalf of the first respondent after the conclusion of the appeal.

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

REASONS FOR JUDGMENT

SUMMARY

1        The appellant appeals from a decision of the Federal Circuit Court made on 23 April 2014, dismissing his application for judicial review of a decision of the Migration Review Tribunal made on 14 November 2013.

2        For the reasons given below the appeal must be dismissed.

BACKGROUND

3        The appellant is a national of Pakistan who was granted a Student (Temporary) (Class TU) (Subclass 572) visa in October 2011. On 11 September 2013, the Department sent to the appellant a notice of intention to consider cancellation of his visa, on the basis that he had failed to comply with a condition of his visa that he remain enrolled in a registered course. The notice alleged that the appellant had not been enrolled in a registered course since 7 January 2013.

4        The appellant responded to the notice on 17 September 2013. He did not dispute he had not been enrolled in a registered course. Rather, he gave an explanation based on his mental health. He stated that he had been suffering depression and anxiety problems for the last seven or eight months and he was not going to college because he was not able to concentrate on his studies. He stated he had been consulting a doctor, and was now receiving treatment and counselling, so that his health had improved and he had resumed his studies. He attached medical certificates supporting what he said.

5        On 20 September 2013, a delegate cancelled the appellant’s visa, pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (Migration Act), on the basis that the appellant had breached condition 8202(2)(a) of his visa, which required him to be enrolled in a registered course. A copy of the decision with covering letter was sent to the appellant by registered post and email on the same day.

6        On 3 October 2013, the appellant applied through a migration agent to the Tribunal for review of the delegate’s decision. On 18 October 2013, the Tribunal sent to the appellant an invitation to comment on the validity of his application for review, pursuant to s 359A of the Migration Act. It had formed the view that the appellant’s application was not valid, as it was not lodged within the relevant time limit of seven working days from the day he was taken to have been notified of the decision. As the application was emailed to him on 20 September 2013, the Tribunal informed the appellant that he was taken to have received it on that date and the last date for application for review was therefore 1 October 2013.

7        On 31 October 2013, the appellant responded in writing to the Tribunal’s invitation. He explained that he did not receive the delegate’s decision until 27 September 2013, when he received a copy by post. He explained he was not able to secure the assistance of a migration agent until 2 October 2013. He stated that he did not receive the delegate’s decision by email.

THE TRIBUNAL’S DECISION

8        On 14 November 2013, the Tribunal made a decision that it did not have jurisdiction to consider the appellant’s application. Relevantly, the Tribunal found (at [3]-[6]):

Pursuant to s.347(1)(b) of the Act and r.4.10 of the Migration Regulations 1994 an application for review of this decision had to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements.

The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 20 September 2013 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

On 18 October 2013, the Tribunal wrote to the applicant informing him that his review application was not lodged within the relevant time limit and inviting him to comment. On 4 November 2013, the applicant provided the Tribunal with a written submission addressing the issue. The Tribunal has considered that submission.

The Tribunal finds that in accordance with s.494C of the Act, the applicant has taken to have been notified of the decision on 20 September 2013. Therefore the prescribed period within which the review application could be made ended on 11 October 2013. As the application for review was not received by the Tribunal until 3 October 2013 it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction to hear this matter.

9        On 2 December 2013, a corrigendum was issued by the Tribunal to strike out the date “11 October 2013” at [6] of the Tribunal’s reasons and replace it with “1 October 2013”. No corrigendum was issued in relation to the period specified in the Tribunal’s reasons of 21 days, which was also incorrect.

THE REVIEW IN THE FEDERAL CIRCUIT COURT

10        On 27 November 2013, the appellant applied for judicial review of the Tribunal’s decision in the Federal Circuit Court. The grounds of the application were as follows:

1.    S477, Judicial review can be lodged within 35 days after tribunal review has been finalised

2.    I am not happy with tribunal decision, applying for judicial review for legitimate decision

3.    I do have exceptional circumstances beyond the MRT application lodgement previously

11        On 23 April 2014, the Federal Circuit Court dismissed the appellant’s application for review: Butt v Minister for Immigration and Border Protection [2014] FCCA 926. After unnecessarily describing the appellant’s first ground of review as “nonsense”, the Court went on to consider the reasoning of the Tribunal in relation to the time limit for the appellant’s review application to the Tribunal.

12        The reasons for judgment of the Court note that the Tribunal had made an error in its reasons with respect to the prescribed time limit for applying for review at the Tribunal (at [14]-[15]):

The Court accepts the written submissions of the first respondent that the Tribunal erred in stating that 21 days was the relevant prescribed time period for a review of the decision of the delegate to cancel a visa. The Court accepts that the relevant prescribed time was seven working days after the applicant was deemed to have been notified of the delegate’s decision to cancel the visa. The court refers to ss.338(3) and 347(1)(b)(i) of the Act and reg.4.10(1)(b). Seven working days from 21 September 2013 expired on 1 October 2013. The Court finds that the prescribed period ended on 1 October 2013. That is what the corrigendum stated…

The application to the Tribunal was received by it on 3 October 2013 and was therefore outside the prescribed period. The Tribunal concluded the application for review was not made in accordance with the legislation and it therefore had no jurisdiction. The Court finds that the Tribunal did not err in law.

13        Citing the decision of North J in VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965, the primary judge found that, as there was an “independent and unimpeachable basis” for the Tribunal’s decision, it would not be appropriate for the Court to remit the matter for reconsideration because of an error elsewhere. His Honour then referred to SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26, where the Court held that, in cases where “no useful result could ensue” from granting the desired relief, the Court should dismiss the appeal on discretionary grounds, as to “divert the court’s time and resources into examining a supposed technical breach is not a proper use of its energies”: at [29] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ, at [88] per Kirby J. The Court held that the errors in the Tribunal’s reasons were immaterial and did not undermine the essential legal basis that sustained the decision. Accordingly, it found there was no jurisdictional error on the part of the Tribunal.

THE APPELLANT’S NOTICE OF APPEAL

14        On 5 May 2014 the appellant filed a notice of appeal from the decision of the Federal Circuit Court. He appeals the decision on the following grounds:

The applicant visa 572 TU was cancelled by DIBP on the basis of student visa criterion under the Migration Act 1958; Applicant, TOUQEER ARIF BUTT has lodged the application in timeframe before his visa expiry. As Department of Immigration And Border protection (DIBP) has information in its records that Applicant is not satisfying the 572 visa subclass criterion. However, Department has sent a letter to applicant regarding cancellation of visa, according to that letter he has lodged the review at Migration review Tribunal. But tribunal says he is out of the time frame because of Tribunal has found the information in this regard that applicant has been notified by email which wasn’t received to applicant. Here, there is no mistake has been found from applicant side, it should haven’t been. Differently, tribunal making his application as an invalid application for review. Therefore, applicant comes to federal circuit court for legitimate decision but honourable judge Turner has been misguided by solicitors of DIBP, it has been found by applicant on hearing date on 23/04/2014.

The applicant has not had any control of his situations which became very bad in Australia to provide reasons at Tribunal, but Migration Review Tribunal has made applicant ineligible to lodge the review application in Australia. According to letter received by mail applicant has lodged the review application in time frame. New argument came to light which demonstrates the unsatisfactory evidence hasn’t been done by Applicant, the provision of false and misleading evidence and manifest error. Does the Court below [1] have power to re-open the original appeal pursuant to either a common law power or pursuant to statute?

2. The Federal court derives its powers to accept to check my argument to give legitimate decision on the basis of Applicant is ready to provide valid reasons why he had to have unsatisfactory progress in further education, and how he is eligible to lodge the review application at Migration review tribunal if he is given chance by Federal court or DIBP (Department of Immigration and Border Protection)

Under the Federal court regulations, court has power to re-open an appeal in circumstances where it can be demonstrated that a Federal court has court hasn’t even looked at applicant claims as there was big barrier “Judicial review has been made which has not been proved by applicant to make it Valid application”, but he has exceptional circumstance beyond his control.

15        An affidavit sworn by the appellant on 5 May 2014 was filed with the Court on the same day. The affidavit annexes the decisions of the delegate and Tribunal and the orders of the Federal Circuit Court judge, and states:

I am not happy with decision made by Migration review Tribunal

(a)    As well as DIAC decision

I am not happy with decision of Federal Circuit court of Australia

THE MINISTER’S INITIAL SUBMISSIONS

16        By submissions filed with the Court on 7 August 2014, the Minister submitted that the appeal grounds advanced by the appellant did not identify any legal errors made by the Tribunal, or any error on the part of the Federal Circuit Court on judicial review. He submitted the Federal Circuit Court was correct to find that the errors made by the Tribunal in its reasons did not go to jurisdiction. He contended that the appellant is seeking to re-agitate the merits of his case in a manner not permissible on judicial review.

17        The focus of the Federal Circuit Court, and the Minister’s submissions, on the errors in the Tribunal’s reasons, even once corrected by the corrigendum issued on 2 December 2013, is understandable. The kinds of errors apparent in the Tribunal’s reasons are undesirable. There is, however, no merit in any suggestion those errors could amount to an excess or want of jurisdiction. That is because whether the Tribunal had jurisdiction to review the delegate’s cancellation decision depended entirely on the operation of various provisions of the statute in light of known facts. Whether the Tribunal recorded that operation correctly or incorrectly in its reasons could not affect its jurisdiction. The Federal Circuit Court was correct to find the errors in the Tribunal’s reasons were not jurisdictional.

THE NOTIFICATION ISSUE

18        If the Tribunal was correct to approach the question of its jurisdiction by reference to the email transmission of the cancellation decision, then it is clear the review application lodged on 3 October 2013 was lodged outside the mandatory and non-extendable time limit in s 347(1)(b)(i) of the Migration Act, read with reg 4.10. On this analysis, the Tribunal had no jurisdiction to conduct the review.

19        However, the evidence discloses the delegate sent the cancellation decision to the appellant on 20 September 2013, using not one but two of the methods prescribed for the purposes of s 127(1) by reg 2.55 of the Regulations: namely, dispatch by prepaid post to the appellant’s last residential address and transmission by email. There is no dispute on the evidence that the appellant received and responded to the cancellation decision as dispatched by prepaid post. As I have observed, he disputes receiving the email but, given the operation of reg 2.55, whether or not in fact he received the email is of no legal relevance to the operation of the time limit provisions in s 347(1)(b)(i) read with reg 4.10.

20        The Tribunal’s reasons, the Federal Circuit Court judgment and the Minister’s initial submissions all refer to the application of ss 494B and 494C of the Migration Act to the sending of the cancellation decision by the delegate, rather than s 127(1) and reg 2.55. There is a question whether ss 494B and 494C are the applicable provisions.

21        Sections 494B and 494C provide:

494B Methods by which Minister gives documents to a person

Coverage of section

(1)    For the purposes of provisions of this Act or the regulations that:

(a)    require or permit the Minister to give a document to a person (the recipient); and

(b)    state that the Minister must do so by one of the methods specified in this section;

the methods are as follows.

(1A)    If a person is a minor, the Minister may use the methods mentioned in subsections (4) and (5) to dispatch or transmit, as the case may be, a document to an individual (a carer of the minor):

(a)    who is at least 18 years of age; and

(b)    who the Minister reasonably believes:

(i)    has day-to-day care and responsibility for the minor; or

(ii)    works in or for an organisation that has day-to-day care and responsibility for the minor and whose duties, whether alone or jointly with another person, involve care and responsibility for the minor.

Note:    If the Minister gives an individual a document by the method mentioned in subsection (4) or (5), the individual is taken to have received the document at the time specified in section 494C in respect of that method.

(1B)    However, subsection (1A) does not apply if subsection 52(3C) (which relates to giving notifications in the case of combined applications) applies in relation to the minor.

Giving by hand

(2)    One method consists of the Minister (including by way of an authorised officer) handing the document to the recipient.

Handing to a person at last residential or business address

(3)    Another method consists of the Minister (including by way of an authorised officer) handing the document to another person who:

(a)    is at the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; and

(b)    appears to live there (in the case of a residential address) or work there (in the case of a business address); and

(c)    appears to be at least 16 years of age.

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.

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.

When the Minister hands a document by way of an authorised officer

(6)    For the purposes of sections 494C and 494D, a reference in those sections to an act of the Minister includes, if the act is of a kind referred to in subsection (2) or (3) of this section, a reference to an act of the Minister by way of an authorised officer.

Documents given to a carer

(7)    If the Minister gives a document to a carer of a minor, the Minister is taken to have given the document to the minor. However, this does not prevent the Minister giving the minor a copy of the document.

494C When a person is taken to have received a document from the Minister

(1)    This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A).

Giving by hand

(2)    If the Minister gives a document to a person by the method in subsection 494B(2) (which involves handing the document to the person), the person is taken to have received the document when it is handed to the person.

Handing to a person at last residential or business address

(3)    If the Minister gives a document to a person by the method in subsection 494B(3) (which involves handing the document to another person at a residential or business address), the person is taken to have received the document when it is handed to the other person.

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.

Transmission by fax, e-mail or other electronic means

(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.

(6)    Subsection (5) applies despite section 14 of the Electronic Transactions Act 1999.

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.

22        Section 127 of the Migration Act imposes an obligation on the Minister (or delegate) to notify a visa holder of the cancellation of a visa in “the prescribed way”.

23        Regulation 2.55 provides:

(1)    This regulation applies to:

(a)    the giving of a document to a holder or former holder of a visa relating to the proposed cancellation or the cancellation of a visa under the Act; and

(b)    the giving of a document under subsection 501G(3) of the Act relating to a decision to cancel a visa under subsection 501(1) or (2) or 501A(2) or section 501B or 501F of the Act; and

(c)    the giving of a document to a holder or former holder of a visa relating to the revocation of the cancellation of a visa under the Act.

(2)    However, this regulation does not apply in relation to:

(a)    a notice to which section 137J of the Act relates; or

(b)    a person who is in immigration detention.

Note:    See regulation 5.02.

(3)    Subject to subregulation (3A), for a document mentioned in paragraph (1)(a) or (c), the Minister must give the document in one of the following ways:

(a)    by handing it to the person personally;

(b)    by handing it to another person who:

(i)    is at the person’s last residential or business address known to the Minister; and

(ii)    appears to live there (in the case of a residential address) or work there (in the case of a business address); and

(iii)    appears to be at least 16 years of age;

(c)    by dating it, and then dispatching it:

(i)    within 3 working days (in the place of dispatch) of the date of the document; and

(ii)    by prepaid post or by other prepaid means;

to the person’s last residential address, business address or post box address known to the Minister;

(d)    by transmitting the document by:

(i)    fax; or

(ii)    e-mail; or

(iii)    other electronic means;

to the last fax number, e-mail address or other electronic address known to the Minister.

Note:    Subregulation (3A) deals with giving documents mentioned in paragraphs (1)(a) and (c) to minors.

(3A)    If the person is a minor, the Minister must give a document mentioned in paragraph (1)(a) or (c) in 1 of the following ways:

(a)    by handing it to the minor personally;

(b)    by handing it to another person who:

(i)    is at the last residential or business address for the minor that is known to the Minister; and

(ii)    appears to live there (in the case of a residential address) or work there (in the case of a business address); and

(iii)    appears to be at least 16 years of age;

(c)    by dating and then dispatching the document:

(i)    within 3 working days (in the place of dispatch) of the date of the document; and

(ii)    by prepaid post or by other prepaid means;

to the minor’s last residential address, business address or post box address known to the Minister;

(d)    by transmitting the document by:

(i)    fax; or

(ii)    e-mail; or

(iii)    other electronic means;

to the minor’s last fax number, e-mail address or other electronic address known to the Minister;

(e)    by dating and then dispatching the document:

(i)    within 3 working days (in the place of dispatch) of the date of the document; and

(ii)    by prepaid post or by other prepaid means;

to a carer of the minor at the last residential address, business address or post box address for the carer of the minor that is known to the Minister;

(f)    by transmitting the document by:

(i)    fax; or

(ii)    e-mail; or

(iii)    other electronic means;

to a carer of the minor at the last fax number, e-mail address or other electronic address for the carer of the minor that is known to the Minister.

(4)    Subject to subregulation (4A), for a document mentioned in paragraph (1)(b):

(a)    if the person has held the visa for less than 1 year when the document is to be given, the Minister must give the document in one of the ways mentioned in subregulation (3); and

(b)    if the person has held the visa for at least 1 year when the document is to be given:

(i)    Immigration must try to find the person; and

(ii)    the Minister must give the document in one of the ways mentioned in subregulation (3).

Note:    Subregulation (4A) deals with giving documents mentioned in paragraph (1)(b) to minors.

(4A)    If the person is a minor:

(a)    the Minister must give a document mentioned in paragraph (1)(b) in 1 of the ways mentioned in subregulation (3A); and

(b)    if the minor has held the visa for at least 1 year when the document is to be given, Immigration must try to find the minor.

(4B)    If the Minister gives a document to a carer of the minor in accordance with this regulation, the Minister is taken to have given the document to the minor.

(4C)    Nothing in subregulation (4B) prevents the Minister giving the minor a copy of the document.

(5)    If the Minister gives a document to a person by handing it to the person, the person is taken to have received the document when it is handed to the person.

(6)    If the Minister gives a document to a person by handing it to another person at a residential or business address, the person is taken to have received the document when it is handed to the other person.

(7)    If the Minister gives a document to a person by dispatching it 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.

(8)    If the Minister gives a document to a person by transmitting it 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.

(9)    If:

(a)    the Minister purports to give a document to a person by a method specified in this regulation but makes an error in doing so; and

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

the Minister is taken to have given the document to the person and the person is taken to have received the document:

(c)    at the time specified by this regulation for that method; or

(d)    if the person can show that he or she received the document at a later time—at that later time.

24        By reg 2.55(1)(a) it is apparent that the regulation applies to the giving of a document to a holder of a visa relating to the cancellation of a visa under the Migration Act. That is the situation in which the appellant was placed.

25        Regulation 2.55(3) then prescribes the ways in which, in the alternative, the Minister or delegate must give a document to a person. Paragraph (c) involves prepaid post and was one of the methods used by the delegate. Paragraph (d) involves transmission by email and was the second method used by the delegate.

26        Subregulations (5), (6), (7) and (8) then set out the time at which a person is deemed to have received a document given to her or him by the alternative methods in subreg (3). Relevantly, subreg (7) applies in relation to a document dispatched by prepaid post and subreg (8) applies in relation to a document transmitted by email. In the former case, a person is deemed to have received the document seven working days after the date of the document. In the latter case, a person is deemed to have received the document at the end of the day on which it was transmitted.

27        There is no material difference between the terms of reg 2.55 and ss 494B and 494C of the Migration Act. As they are currently expressed, they impose the same time limits and contain the same deeming provisions. Section 494B did not apply, and s 494C’s application is, as s 494C(1) makes plain, dependent on the application of s 494B.

28        Applying these provisions to the appellant’s circumstances, by subreg (7) he is deemed to have received the cancellation notification sent by registered post on 1 October 2013. By subreg (8) he is deemed to have received the cancellation sent by email at the end of 20 September 2013.

29        If subreg (7) applies, his review application on 3 October 2013 was within the period set out in s 347(1)(b)(i), read with reg 4.10. If subreg (8) applies, his review application was, as the Tribunal and the Federal Circuit Court found and as the Minister submitted, out of time.

30        The issue which arises is as follows. In circumstances where, on the same day and deliberately, a delegate gives a document by two of the permissible methods in reg 2.55, do the Migration Act or the Regulations authorise or require a choice as to which of the deeming provisions in reg 2.55 should be applied to determine when a visa holder is taken to have received the cancellation notification for the purposes of the time limits in s 347(1)(b)(1) and reg 4.10? Or does the statutory scheme itself indicate which of the notifications is the operative one?

31        As an unrepresented litigant, and given the technical nature of this issue, there was understandably little that the appellant himself could contribute to the resolution of this issue.

The Minister’s submissions at the hearing

32        On 13 August 2014, an email was sent from the Court to the Minister’s representatives, raising the following matters:

The evidence discloses the delegate sent the cancellation decision to the appellant on 20 September 2013, using not one but two of the methods prescribed for the purposes of s 127(1) by reg 2.55 of the Migration Regulations 1994 (Cth): namely, dispatch by prepaid post to the appellant’s last residential address and transmission by email. The decision and reasoning of the Tribunal proceeded on the basis of calculating the time limits under s 347(1)(b) and reg 4.10 by reference to the method of transmission by email.

If the calculation had been undertaken by reference to dispatch by prepaid post, then it may be the case, by operation of s 494C, read with s 347(1)(b) and reg 4.10, that the appellant’s review application to the Tribunal was within time.

The Court would be assisted in its consideration of the appeal by submissions from the Minister as to the basis, in the Act and the Regulations, empowering or requiring the Tribunal to choose to determine that the operation of the time limit provisions in s 347(1)(b) should proceed by reference only to the prescribed method of transmission by email, which involved the shorter of the two time limits.

33        In response to this email, at the hearing on 14 August 2014 the Minister’s representative handed up some written submissions addressing this issue. By those written submissions, and in submissions made orally at the hearing, the Minister contended that the effective notification was that made to the appellant by email, and that “[s]econd or subsequent instances of deemed receipt do not affect the timeframe in which a review application may be made to the Tribunal”. The Minister submitted that the Tribunal was not able to “choose” which notification applied, but was “obliged to operate by reference to the first time at which the Appellant was deemed to have been notified … by relying on the email notification of 20 September 2013”. In support of that submission, the Minister relied on the decision of Sundberg J in Minister for Immigration and Citizenship v Manaf (2009) 111 ALD 437; [2009] FCA 963, where his Honour found that subsequent notifications were “incapable of having any effect because the first notification letter was effective”, and the Full Court decision in Singh v Minister for Immigration and Citizenship (2011) 190 FCR 552; [2011] FCAFC 27, where, the Minister contended, the Court did not consider a subsequent notification to have affected the running of a time period initiated by the first notification.

34        Given the uncertainty as to which provisions of the Migration Act and the Regulations apply, and the fact that the appellant is unrepresented in this appeal, with the consent of the Minister at the conclusion of the hearing I made orders requiring the Minister to file and serve further submissions. Those submissions were to address the applicable provisions in the Migration Act and the Regulations concerning notification and deemed receipt; and how the Minister submits the Tribunal’s jurisdiction is to be ascertained in circumstances where there are two different methods of notification employed by the delegate, both in accordance with the statute. I also made a referral for the appellant to receive pro bono legal assistance pursuant to r 4.12 of the Federal Court Rules 2011 (Cth).

The Minister’s further written submissions

35        The Minister filed further submissions with the Court on 10 September 2014. He also sought to rely on an affidavit of Mr Lorenzo De Vera, a Departmental Case Officer, affirmed on 10 September 2014. In that affidavit Mr De Vera gave evidence that he contacted the appellant on 11 September 2013 on his mobile telephone, and confirmed the appellant’s email address and residential address. Mr De Vera states that the appellant agreed the Department could contact him by email. Annexed to Mr De Vera’s affidavit is an electronic file note record Mr De Vera made of the telephone conversation. In his affidavit Mr De Vera then gives the following evidence:

Also on 11 September 2013 I sent the Notice of Intention to Consider Cancellation (NOICC) to the Appellant to his email address. A copy of the NOICC was also sent by post to his Dean Park address on the same day. The document at pages 17-18 of the Appeal Book is a true copy of the email dated 11 September 2013.

On 17 September 2013 I received an email from the Appellant in response to the NOICC. The document at page 19 of the Appeal Book is a true copy of the Appellant’s email dated 17 September 2013.

On 20 September 2013 at 10:04 am I sent an email to the Appellant attaching, among other things:

(a) a “Notification of Cancellation of Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa under s116 (General Power) of the Migration Act 1958” dated 20 September 2013 (Notification of Cancellation Decision); and

(b) a "Decision Record" dated 20 September 2013 (Decision Record).

The document at pages 36-38 of the Appeal Book is a true copy of the email dated 20 September 2013, without attachments. The documents that appear at pages 25-35 of the Appeal book are identical to those attachments to that email, save that the Notification of the Cancellation Decision was unsigned.

After sending the email, also on 20 September 2013, I placed a copy of the Cancellation Decision, the other documents attached to the email dated 20 September 2013, and a covering letter dated 20 September 2013, in the "Post Office Mail bag". The document that appears at page 24 of the Appeal Book is a true copy of the covering letter. The documents that appear at pages 25-35 of the Appeal Book are true copies of the Notification of Cancellation Decision and the Decision Record that were posted to the Appellant.

The Postal Office Mail bag is collected on a daily basis and transported to a central mail location in the Department. The barcode of the registered post number is scanned and recorded and the client's name suburb, state and postcode are recorded. The information is then put onto an Austpost lodgement sheet on a daily basis and attached with a complete registered post outgoing sheet. One copy of the outgoing sheet is given to Austpost and one copy given to Converga to keep as a reference. Converga is the external contractor that looks after record management and all internal and external mail for the Department. The information on the outgoing sheet is kept for the purpose of determining the dispatch date of any outgoing registered post.

The copy of the Cancellation Decision, and the other documents attached, that was posted to the Appellant was dispatched from the Department on 23 September 2013.

(a) The email receipt generated by the scanner, with its attachment (being a copy of the registered post envelope), shows that this letter was scanned for record management purposes at 10:28 on 20 September 2013. Annexed and marked “LDV 2” is a copy of that email receipt.

(b) The registered post outgoing sheet shows that the Cancellation Decision, and the other documents attached, was dispatched on 23 September 2013. Column “A” of that sheet is the date the item is dispatched, column “B” is the registered post reference number, column “C” is the name of the client and column “D” is a description of the postal address. Annexed and marked “LDV 3” is a copy of the registered post outgoing sheet for 23 September 2013, with the names of third parties redacted.

36        The appellant did not object to the Minister having leave to rely on Mr De Vera’s affidavit. The respondent will have leave to rely on that affidavit and it has been treated as read in the appeal.

37        The Minister contended that each of ss 494A-494C and reg 2.55 apply in their terms to a cancellation decision under s 127. The Minister relied on the Full Court decision in Singh 190 FCR 552; [2011] FCAFC 27 to support the proposition that s 494A permits a cancellation decision under s 127 to be notified using one of the methods in s 494B.

38        The Minister also submitted that neither provision purports to exclude the other, and the fact that the provisions were added at the same time (by the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 (Cth) and the Migration Amendment Regulations 2001 (No 6) (Cth)) and similarly amended at the same time (by the Migration Amendment Regulations 2008 (No 8) (Cth) and Migration Amendment (Notification Review) Act 2008 (Cth)) supported the conclusion that there is no conflict between these provisions and they are intended to operate harmoniously. In support of this submission he relied on Zhang v Minister for Immigration and Citizenship (2007) 161 FCR 419; [2007] FCAFC 151, where the Full Court rejected an argument that s 494A overrides reg 2.55 and, on the facts in that case, the Court found it was not material whether the letter had been served under reg 2.55 or ss 494A-494C.

39        In the face of two different methods of notification employed on the same day, the Minister submitted that there was in fact only one valid notification — the emailed notification was in fact the operative notification, and the posted letter was a mere copy. The Minister relied on the form of the notification letter, which is marked “sent by email”, and calculates the time for bringing an application by reference to the limits relating to email notification. The Minister submitted that the actual sequence of events is not as relevant as these facts but, in any event, the email was sent first. In support of this submission the Minister referred to Mr De Vera’s evidence, extracted at [35] above, which the Minister submitted demonstrates the delegate sent the email before placing the notification in the post.

40        The Minister maintained his earlier submission that there could be only one effective notification, and therefore only one timeframe, for applying to the Tribunal for review. Again the Minister relied for this submission on the decisions of Manaf 111 ALD 437; [2009] FCA 963 and Singh 190 FCR 552; [2011] FCAFC 27 and the decision in the Federal Magistrates Court of Nguyen v Minister for Immigration and Citizenship [2009] FMCA 933, which, he submitted, demonstrate that sending the same decision to the same person by different methods does not create two separate notifications, and that the sending of a later notification does not invalidate an earlier notification — a Tribunal’s jurisdiction is determined by the earlier notification.

41        The Minister noted this line of authority is inconsistent with the earlier Full Court decision in H v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 153; [2002] FCAFC 18, the correctness of which, he submitted, was in any event left open in Zhang. The Minister also seeks to distinguish H on the basis that the facts in that case involved a subsequent notification to a different person (the applicant’s authorised recipient — the first being sent directly to the applicant).

42        The Minister also pointed to an acknowledgement by the appellant’s then agent in the cover letter attached to the application to the Tribunal, which refers to the decision record being sent by email.

The appellant’s written submissions on the notification issue

43        Following the filing of the Minister’s further written submissions, and upon confirmation that the pro bono referral had been accepted by counsel, I made orders requiring the appellant to file and serve written submissions in response to the Minister’s further written submissions of 10 September 2014. By submissions filed with the Court on 9 October 2014, the appellant contended that ss 494A-494C did not apply in his case.

44        The appellant submitted that s 127 is in mandatory terms and imposes a duty, whereas ss 494A-494C are general provisions. Applying the principle set out in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1, taken with the prescriptive nature of the terms of s 127, the appellant submitted s 127, read with reg 2.55, applies and operates to exclude ss 494A-494C. This construction, the appellant submitted, is consistent with the cases relied upon by the Minister. In Singh 190 FCR 552; [2011] FCAFC 27, the Full Court stated (at [13]) that s 494B and reg 2.55 should not be read as “supplementing each other”. In Zhang 161 FCR 419; [2007] FCAFC 151, the Court stated that the relevant method of notification complied with reg 2.55 and “coincidentally” conformed with s 494B (at [31]). The appellant submitted this demonstrated an acceptance by the Full Court that reg 2.55 was the provision that in fact applied. The appellant also submitted that, while the content of reg 2.55 currently is the same as ss 494B-494C, it is open for this situation to be changed by amendment.

45        The appellant submitted that the Minister notified the appellant in two valid ways. He does not contend that either method renders the other invalid. In response to the Minister’s submissions, he noted that the cover letter to the notification did not refer to being “sent by email”. He noted that the notification did refer to being “sent by email”, but also as being directed to the appellant’s physical address. The appellant also referred to the statement at the end of the notification record, which states that “the original of this letter was sent to” the appellant’s physical address. He also pointed to the fact that the notification sent by prepaid post was signed, but the notification attached to the email was not signed.

46        The appellant contended that the Court ought to adopt the possibility of a second timetable referred to in H. He noted that neither H nor Manaf concerned the provisions for which the appellant contended apply — s 127 read with reg 2.55 — so neither is binding, although they may be persuasive in this analogous context. The appellant submitted that the Court in Zhang expressly avoided expressing any view on the correctness of the possibility of a second timetable articulated in H. Therefore, the appellant submitted, given that Manaf is a decision of a single justice and H is a decision of the Full Court, the judgment of the Full Court should be preferred.

CONSIDERATION

Section 127 and Regulation 2.55 apply

47        It is important to recall the nature and effect of the cancellation provisions in Div 3 of Pt 2 of the Migration Act. Under the scheme created by the Migration Act, cancellation of a visa transforms the immigration status of an individual from a lawful to an unlawful non-citizen: see ss 13 and 14 of the Migration Act. That transformation in turn exposes the individual to loss of liberty through mandatory detention (see s 189) and removal (see s 198). Cancellation also restricts the ability of an individual to apply “onshore” for further visas, by reason of the operation of s 48 of the Migration Act, read with reg 2.12 of the Regulations, as the notification letter to the appellant in this case pointed out. In summary, the effects of cancellation of a visa on an individual are significant. The scheme of the Migration Act then creates a tightly regulated merits review regime, access to which is dependent on the operation of non-extendable time limits, such as the ones under consideration in this appeal in s 347(1) and reg 4.10. Reinforcing the tightness of the merits review scheme are the deeming provisions in both s 494C and reg 2.55, creating the situation that a person’s review rights do not depend on actual notification.

48        The Full Court in Zhang found that ss 494A-494C did not “override” reg 2.55. That being the case, at best for the Minister’s contentions, the two can somehow operate side by side. I do not accept the Minister’s submission that is how the statutory scheme is intended to operate. In a scheme as detailed and comprehensive as the Migration Act, and in relation to an issue as critical as notification of cancellation of a visa, the scheme should be construed in a way which promotes certainty in the operation and application of its provisions. The link made by the scheme between notification and an applicant’s review rights, together with the effect of the deeming provisions, means the scheme should be given an operation that is as specific and clear as possible.

49        An approach which allows, on an apparently ad hoc basis, either of ss 494A-494C and s 127 read with reg 2.55 to apply creates uncertainty, and lack of clarity. I accept the submissions made on behalf of the appellant that the principles in Anthony Hordern apply to the resolution of the operation of ss 494A-494C and s 127, read with reg 2.55.

50        As the appellant pointed out, although the content of the provisions is currently similar, that need not remain the case. If Parliament were to change the content of ss 494A-494C, then there would be a disconformity on a critical aspect of the operation of the scheme, and the disconformity would result from provisions of general application. In my opinion that does not reflect the intention of Parliament in relation to the procedure for cancellation of visas. In s 127, Parliament has specifically contemplated a prescribed notification process. Section 127 appears in subdiv E which is headed “Procedure for cancelling visas under Subdivision D in or outside Australia”. This subdivision then sets out the procedure for notice of intention to cancel, the content of such notices, opportunities to respond and notification of a decision. Section 127(1), which provides for the manner in which notification of a decision to cancel is to be given, is expressed in mandatory terms. Given the nature of the cancellation power, and the context and purpose of these provisions, it is clear the legislature intends there to be compliance with the procedure set out in the subdivision.

51        If, as the Full Court has held in Zhang, ss 494A-494C cannot “override” s 127 and reg 2.55, then the Minister’s contentions have the consequence that s 127(1) can be construed as providing nothing more than an optional and alternative method, which may or may not be employed on cancellation of a visa otherwise in accordance with subdiv E. I do not accept that is the correct approach.

52        There are also textual reasons to reach this conclusion. A reference to s 494B is a precondition to its application: see s 494B(1)(b). Section 127(1) does not refer to s 494B. Section 494C(1) in its terms makes clear that it only applies if s 494B applies.

Application of section 127 and regulation 2.55 on the evidence

53        Despite my conclusions above, I would adopt the same approach in terms of the evidence and my findings of fact if, contrary to the opinion I have expressed, ss 494A-494C apply.

54        While it is correct, as the appellant contended, that some aspects of the evidence support the proposition that there were in fact two notifications, I have concluded on the balance of probabilities that is not what the evidence reveals. Rather, the evidence reveals the delegate gave notification by email. The notification letter itself provides the best and primary evidence of what constitutes the notification for the purposes of s 127(1).

55        The notification letter states that it is “sent by email”. This appears at the top of the first page of the letter, under the date. It is an unmistakable indication of the notification method adopted by the delegate. The appellant’s email address is also given at the top of the letter. In between the endorsement “sent by email” and the appellant’s email address is the appellant’s full name and postal address as recorded in departmental records. In my opinion, contrary to the appellant’s submissions, the setting out of the appellant’s full name and postal address is not a clear indication of the method of notification adopted. It identifies the appellant himself: in other words, together with the other identifiers subsequently set out (date of birth, “cancellation ID” and file number) the appellant’s address is part of the way in which the delegate delineates the identity of the person whose visa is being cancelled. For example, if numbers in the cancellation ID or the file number were accidentally transposed, the postal address would provide a way of correctly identifying the appellant. It also records the address to which the original of the decision letter will be sent.

56        The second significant piece of evidence in the notification letter is that in the section dealing with the appellant’s review rights, the non-extendable time period for review is set out, and the letter then states:

As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.

57        There is no reference to the deeming period for receipt of a letter sent by prepaid post. The delegate — as the repository of the power in s 119, and the person on whom the duty in s 127(1) is relevantly imposed — is describing the method through which he has complied with his statutory duty, and the effect of that method on the appellant’s review rights. In my opinion this matter is highly probative of the method of notification in fact used.

58        I note also that a sentence in identical terms is then repeated on p 4 of the notification letter.

59        The appellant is correct that the letter ends by stating that the “original of this letter including attachments” was sent to the appellant’s postal address. The appellant is also correct that the delegate’s evidence confirms only the original letter was signed, and the email was not. In my opinion that fact simply reflects the employment of an electronic notification process, without the use of either an electronic signature or the printing out and signing of a letter before scanning and emailing. The fact that such additional steps were not taken is not capable of displacing the clear identification by the delegate himself in the letter of the notification method employed. If anything, the absence of a signature is more consistent with the actual notification having occurred by email.

60        Of less significance, but nevertheless material, is the delegate’s evidence that prior to the notification, on 11 September 2013, he telephoned the appellant to confirm his contact details, including his postal address and his email. The delegate’s evidence, which is not contradicted and is supported by a contemporaneous file note, is that he informed the appellant he was sending a notice regarding the appellant’s non-enrolment and that he asked the appellant if he could use his email address. The appellant agreed.

61        The uncontested evidence is that the notice of intention to consider cancellation was sent on 11 September 2013 by email and prepaid post to the appellant, who replied by email on 17 September 2013. The 11 September notice of intention to cancel letter, which was in evidence, had the same relevant attributes as the cancellation letter: namely, it carried the “sent by email” endorsement, and the statement at the end of the letter that the original of the letter was sent by post.

62        What this evidence shows is that the delegate, as the repository of the cancellation power and the person on whom the duty in s 127(1) was imposed, previously employed email as his method of notification to the appellant. He did so in identical terms to the 20 September 2013 notification. The posting of the letter in each case was nothing more than a confirmation of what had occurred by email, as the Minister submitted.

The effect of the Full Court’s decision in H v Minister for Immigration and Multicultural Affairs

63        Given my findings of fact as to the method of notification employed by the delegate in this matter, it is unnecessary for me to resolve any potential conflict between the approach taken by the Full Court in H, and the approach taken by Sundberg J in Manaf. Accordingly, I do not propose to express any views on those matters.

CONCLUSION

64        The appeal must be dismissed. The Federal Circuit Court was correct to conclude the Tribunal had no jurisdiction to conduct a review, because the application for review was outside the prescribed time limit.

65        Nevertheless, this appeal has exposed a significant question about the construction and application of the notification provisions. It was not a matter to which the Federal Circuit Court adverted. The correct approach has been the subject of detailed written submissions, in circumstances where the Minister accepted from the outset this was a matter of importance to the operation of the scheme, independently of the appellant’s individual circumstances. The Minister’s submissions on the application of ss 494A-494C have not been accepted, although the Court has accepted his submissions on the facts. The appellant’s submissions on the application of s 127(1) and reg 2.55 have been accepted, and have contributed to a clarification of the construction of the Migration Act, although that matter is of no personal benefit to the appellant.

66        In those circumstances, the Court’s broad discretion as to costs is relevant. I do not consider this is a situation where costs should simply follow the event. On the assumption that the precondition in rr 4.19(1) and (3) of the Federal Court Rules is met and there is a costs agreement between counsel and the appellant, I consider it appropriate that counsel retained after a referral from the Court should have a modest order for costs in her favour in relation to the preparation of what were detailed and helpful written submissions. I propose to fix those costs at $2500. There will be orders accordingly. If it is the case that there is no such costs agreement, the Court can be notified of this fact and the order will be vacated.

67        Subject to the matter in the next paragraph, the appellant has been unsuccessful on the appeal and there are no circumstances which would justify anything other than the usual order as to costs as to the remainder of the appeal.

68        The costs order in favour of the Minister should not in my opinion include the costs of and incidental to the Minister’s written submissions prepared and filed after the conclusion of the appeal. Those submissions were filed at the request of the Minister, but the request was occasioned by matters raised by the Court and not by the appellant. They were matters of law, of wider importance to the Minister and to the administration of the Migration Act. In my opinion it is not appropriate to compel the appellant to compensate the Minister for those costs.

Associate:

Dated: 12 December 2014