Federal Court of Australia

Kassem v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 451

ORDERS

THE COURT ORDERS THAT:

1.    The originating application be dismissed.

2.    The applicant pay the first respondent’s costs as assessed or agreed.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal, to dismiss an application for merits review of a decision of a delegate of the first respondent, the Minister. The Tribunal found that it did not have jurisdiction to entertain the merits review application because it was not made within the required nine day time limit, there being no provision for any extension of time.

2    On 29 September 2022, the delegate decided, under s 501CA of the Migration Act 1958 (Cth), not to revoke the mandatory cancellation of the applicant’s visa (non-revocation decision). Notice of the non-revocation decision, and the reasons for it, were emailed to the applicant’s then solicitor the same day. The applicant was in immigration detention at the time of the non-revocation decision and had been since the cancellation of his visa.

3    An application was made by the applicant, via new solicitors, for merits review of the delegate’s decision just over a month later, on 1 November 2022. Section 500(6B) of the Migration Act required such an application to be made within nine days of the applicant being given notice of the delegate’s decision.

4    The Tribunal found that the application for merits review of that decision had not been made within nine days after the date upon which the applicant had been given notice of the delegate’s decision. In reaching the conclusion that it did not have jurisdiction, the Tribunal considered, but rejected, arguments advanced on behalf of the applicant that he had never been notified of the delegate’s decision in the manner required by the Migration Act and the Migration Regulations 1994 (Cth). The Tribunal found that the email to the applicant’s then solicitor constituted the required giving of notice.

5    No issue has been raised as to the validity or sufficiency of the form or contents of the notice of the delegate’s decision, with the sole dispute concerning the mode of giving of that notice to the applicant. Nor is there any suggestion that the applicant did not in fact become aware of the delegate’s decision prior to the expiry of the nine-day period within which to make an application to the Tribunal for merits review. Rather, the applicant challenges the Tribunal’s conclusion that sending written notice of the delegate’s decision, together with a copy of the delegate’s reasons, by email to the solicitor he had formally appointed to represent him, met the requirements imposed by the Migration Act and the Regulations for giving him that notice. He contends that nothing less than giving notice to him in person or by registered post would suffice.

6    If sending the email to the applicant’s then solicitor with the attached reasons did amount to giving notice in accordance with the relevant provisions of the Migration Act and the Regulations, then the application for merits review was required to be made by 10 October 2022, such that the Tribunal correctly found it did not have jurisdiction to entertain the application. However, if sending that email did not amount to giving notice as required, the required notice has never been given, and the nine-day period for making an application for merits review has never commenced to run. This would mean that the applicant would still have been in time in applying to the Tribunal for merits review on 1 November 2022, such that the Tribunal committed a jurisdictional error by failing to exercise jurisdiction in hearing and determining that application.

7    For the reasons that follow, the Tribunal did not err in finding that the required notice had been given, such that the application for merits review was out of time. It follows that the Tribunal correctly found that it did not have jurisdiction to entertain that application. Therefore, the originating application must be dismissed with costs.

The relevant provisions and factual circumstances

8    The relevant provisions of the Migration Act and of the Regulations in relation to giving notice of the delegate’s decision made on 29 September 2022 are as follows:

(a)    s 501G(1)(ba) and (c)-(d), provided that if a decision was made under s 501CA not to revoke a decision to cancel a visa, the Minister must give the former visa holder a written notice setting out the decision, the provision under which it was made, and the reasons for the decision;

(b)    s 501G(3) provided that a notice under s 501G(1) “must be given in the prescribed manner”;

(c)    s 5(1) defined “prescribed” as “prescribed by the regulations”;

(d)    reg 2.55(1)(b)(ii) applied to the giving of a document under s 501G(3) relating to a decision under s 501CA not revoke a cancellation decision, but reg 2.55(2)(b) provided that reg 2.55 did not apply to persons in immigration detention, such as the applicant;

(e)    the note to reg 2.55(2) advised the reader to see reg 5.02, which provided (emphasis added):

For the purposes of the Act and these Regulations, a document to be served on a person in immigration detention may be served by giving it to the person himself or herself, or to another person authorised by him or her to receive documents on his or her behalf.

(f)    s 494A(1), which commenced on 10 August 2001, provided (emphasis added):

If:

(a)    a provision of this Act or the regulations requires or permits the Minister to give a document to a person; and

(b)    the provision does not state that the document must be given:

(i)    by one of the methods specified in section 494B; or

(ii)    by a method prescribed for the purposes of giving documents to a person in immigration detention;

the Minister may give the document to the person by any method that he or she considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section).

Note: Section 494D deals with giving documents to a person’s authorised recipient.

(g)    s 494B provided the methods by which the Minister can give documents to a person, and in particular, s 494B(5)(b) and (d) provided:

Transmission by fax, email or other electronic means

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

(a)    …

(b)    email; or

(c)    …

to:

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

(h)    s 494C(1) provided that s 494C applied if the Minister gave a document to a person by one of the methods specified in s 494B, including in a case covered by s 494A;

(i)    s 494C(5) provided:

Transmission by fax, email 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, email 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.

(j)    s 494D relevantly provided:

(1)    If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to receive documents in connection with specified matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents in connection with those matters that the Minister would otherwise have given to the first person.

Note:    If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.

(2)    If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. However, this does not prevent the Minister giving the first person a copy of the document.

(k)    s 500(6B) relevantly provided:

If a decision under section 501 of this Act, or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa, relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1). Accordingly, paragraph 29(1)(d) and subsections 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 do not apply to the application.

9    The way in which the applicant’s solicitor was appointed to represent him, an appointment which remained in place until after the email was sent on 29 September 2022, is directly relevant to the regime summarised above, including in particular reg 5.02 and ss 494A, B, C and D. By a form titled “Appointment of a registered migration agent, legal practitioner or exempt person” dated 22 December 2021, and signed both by the applicant’s then solicitor and the applicant himself:

(a)    in “Part A – New Appointment Registered migration agent/legal practitioner/exempt person’s details”:

(i)    in answer to question 7 “Do you agree to the Department communicating with you by fax, email or other electronic means”, the “Yes” box was ticked and the email address of the applicant’s solicitor was provided in handwriting;

(ii)    in answer to question 15, “Are you providing assistance with an application process, a cancellation process or specific matter? (tick one only)”, the “Specific matter” box was ticked and the words “notice of visa cancellation under section 501(3A) of the Migration Act 1958” was handwritten;

(iii)    in answer to question 17, “Have you been authorised to receive written communication on behalf of your client(s) in relation to the matter indicated in Question 15”, the “Yes” box was ticked;

(b)    Part B dealing with ending such an appointment, is blank;

(c)    In “Part C – Declarations”:

(i)    under the heading “Declaration by registered migration agent/legal practitioner/exempt person”, at paragraph 22, the first of two boxes is ticked, with the text for that box being “Appointment – I declare that I have been appointed by the client named in Part A of this form as a registered migration agent/legal practitioner/exempt person and that I will act on the client’s behalf as permitted by law”;

(ii)    under the heading “Declaration by client”, at paragraph 23, the first of two boxes is ticked, with the text for that box being “Appointment – I declare that I have appointed the registered migration agent/legal practitioner/exempt person named in Part A of this form to provide assistance with matters as indicated on this form”.

10    It follows that there is no doubt that the applicant had appointed a solicitor to act for him in his dealings with the Minister’s Department, and that the solicitor as part of that appointment form had authorised communications by email, which is how the entire process of seeking revocation of the cancellation was conducted, including sending the email advising or and enclosing the delegate’s non-revocation decision on 29 September 2022.

11    The Tribunal summarised the key uncontested events as follows at [5] (omitting footnotes):

In its written submissions, the Respondent has helpfully outlined the relevant timeframe necessary for a fulsome understanding of whether or not the Applicant has met this nine day timeframe. Those facts confirm:

•    the Applicant told the Respondent that he sought revocation of the mandatory cancellation decision and that he was doing so via duly appointed legal representatives who formally announced their involvement in the matter to the Respondent’s department.

•    in so doing, the Applicant’s legal representatives provided the Respondent’s department with written confirmation that they held the Applicant’s instructions and, at the same time, provided an email address to which communications intended for the Applicant were to be sent.

•    those representatives were called ‘Birchgrove Legal’. The announcement of their involvement in the matter occurred by way of an email dated 28 December 2021 under the hand of [name of law clerk redacted]. The nominated email address on the relevant revocation form was recorded thus: [email address not reproduced].

•    on 17 and 20 January 2022, plus 29 and 30 June 2022, plus 28 July 2022, plus 25 August 2022, the Respondent’s department and the Applicant’s representatives exchanged email correspondence in the regular course of the revocation application propounded on behalf of the Applicant. The fact of the passage of that correspondence is not in issue;

•    on 29 September 2022, following consideration of the Applicant’s representations for revocation, a delegate of the Respondent made a decision refusing to revoke the mandatory cancellation decision pursuant to s 501CA(4) of the Act;

•    this particular decision was forwarded by the Respondent’s department to the Applicant using the self-same email address that had been provided by the Applicant’s representatives to the Respondent’s department. In so doing, the Respondent’s department sought to ensure compliance with s 501G(3) of the Act (read with Regulation 5.02 of the Migration Regulations 1994 (Cth) (‘the Regulations’);

•    on or about 1 November 2022 the Applicant changed his legal representation from Birchgrove Legal to ‘IMMI House Legal’. The person having carriage of the file at the latter office was nominated as ‘Amina Youssef’;

•    the new representatives for the Applicant sought to propound an alleged difficulty or shortfall in the provision of the non-revocation decision to the Applicant.

Resolution of the competing arguments

12    Provided s 494A(1) applied to the applicant, then necessarily each of s 494B(5)(b) and (d), s 494C(1), s 494C(5), and s 494D(1) also applied, rendering the email to the applicant’s then solicitor an effective giving of written notice of the delegate’s non-revocation decision. The Minister’s primary argument is that s 494A(1) did apply, and if that is correct, the present application must fail.

13    The Minister’s alternative argument is that even if s 494A(1) did not apply to the applicant, reg 5.02 was in any event complied with by giving written notice of the delegate’s non-revocation decision to a person authorised by him to receive documents on his behalf, by emailing it to the applicant’s solicitor. This argument depends upon interpreting giving notice as including doing so by email. If that is correct, then again the present application must fail.

14    It follows that the applicant must succeed in demonstrating both that s 494A(1) did not apply to him, and that the terms of reg 5.02 were not otherwise satisfied. The argument advanced by the applicant is that strict compliance with the formal requirements for giving notice of a delegate’s decision was required, and that this required nothing less than giving written notice to him of the delegate’s non-revocation decision. The essence of the applicant’s case is that:

(a)    s 494A(1) did not apply because s 501G(3), being the relevant provision identified for the purposes of s 494A(1)(a) and (b):

(i)    while meeting the description in (a) of requiring the Minister to give a document (the written notice);

(ii)    did not meet the description in (b) of not stating that the document must be given either by one of the methods in s 494B or by a method prescribed for the purposes of giving documents to a person in immigration detention;

(iii)    that was said to be because the concept of “state” in (b) extends to providing for or effectively providing for that to take place;

(b)    therefore the only applicable provision for the giving of written notice of the delegate’s non-revocation decision, as required by s 501G(3), was reg 5.02; and

(c)    reg 5.02 required the written notice to be given to the applicant in person, and not to anyone else on his behalf.

15    The essence of the Minister’s primary case is that it is not correct that the only applicable provision for the giving of notice of the delegate’s non-revocation decision was reg 5.02, although that remained as an option. The Minister’s alternative case is that even if reg 5.02 was the only applicable provision for the giving of notice of the delegate’s non-revocation decision, that was complied with because of the second limb allowing for that to take place by giving it to the another person authorised by the applicant to receive documents on his behalf, namely his solicitor, with such alternative service not being confined to giving notice to the solicitor in person.

The meaning of the phrase in s 494A(1)(b) “the provision does not state that the document must be given”

16    The applicant contends that s 494A(1) was not engaged at all, because s 501G(3), in providing that a notice under s 501G(1) “must be given in the prescribed manner”, had to be read with reg 5.02, and thereby met the description in s 494A(1)(b)(ii) of stating, by providing or effectively providing, for the document to be given to him. The applicant therefore contends that the mechanism for a wider range of means of giving notice than allowed for by reg 5.02 is not enlivened by s 494A(1), so that none of s 494B(5)(b) and (d) as to transmission including by email, and the facilitative provisions in s 494C(5) and s 494D(1) applied. This left only the giving of actual written notice of the delegate’s non-revocation decision either to him, or to his solicitor, neither of which had taken place.

17    The Minister’s contrary argument is that the phrase in s 494A(1)(b) “the provision does not state that the document must be given” by one of the methods in s 494B or by a method prescribed for the purposes of giving documents to a person in immigration detention is met because s 501G(3) does not make or include any such statement. The Minister points out that the language in s 501G(3) is quite different from other provisions, such as ss 359(3)(b), 359A(2)(b), 360A(2)(b), 424(3)(b), and 425A(2)(b), all of which use a particular phrase in relation to how a document must be given, namely “by a method prescribed for the purposes of giving documents to such a person”. Such a phrase in s 501G(3) would fall within the description of stating that a document must be given to a person in immigration detention by a method prescribed. However, all that s 501G(3) does is require that notice “must be given in the prescribed manner”, which is insufficient to amount to a statement that excludes the operation of s 494A(1)(b)(ii), and thereby the ability of the Minister to give notice by “any method that he or she considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section)”. Accordingly, the Minister submits that the terms of s 501G(3) are not such as to exclude the operation of s 494A(1)(b), and therefore the operation of the provisions that flow from that in s 494B(5)(b) and (d), s 494C(1) and (5) and s 494D(1).

18    The Minister’s argument is plainly correct. It is simply not tenable to read the phrase “the provision does not state that the document must be given” in such a way as to include some kind of mere constructive statement to that effect. Section 501G(3) does not contain any such statement, because it is not as prescriptive as provisions such as ss 359(3)(b), 359A(2)(b), 360A(2)(b), 424(3)(b), and 425A(2)(b). Therefore, it is a provision to which s 494A(1) applies. Once s 494A(1) applies, that cascades through to each of s 494B(5)(b) and (d), s 494C(1) and (5), and s 494D(1), rendering the 29 September 2022 email to the applicant’s then solicitor an effective giving of written notice of the delegate’s non-revocation decision to the applicant. For that reason alone, the originating application must be dismissed.

The application of reg 5.02 independently of the regime engaged by s 494A(1)

19    Strictly speaking, the issue of the application of, and compliance with, reg 5.02 does not arise and therefore does not require resolution. However, given the careful submissions by the parties, and the possible room for a different conclusion to be reached about the application of the regime for giving notice brought about by s 494A(1), it is prudent to consider this alternative argument as well.

20    The applicant’s argument is that the use of the word “giving” in reg 5.02, both in its application to the person to whom the notification is directed, and in relation to a person authorised by him to receive documents on his behalf, here his solicitor, requires the handing of that notice to him in person or to his solicitor in person, neither of which took place.

21    The Minister submits that reg 5.02 makes express provision for the giving of notice to a person via another person authorised to receive it, and that there is no reason to confine “giving” to the act of handing such a notice to such a person. While “giving” contemplates some kind of physical act of delivery, that is not confined to handing over in person. Rather, it involves any form of actual delivery or receipt by the person to whom it is given. What matters is that it is given, not the means by which it is given.

22    This interpretation is supported by reference to other provisions, such as reg 2.55, which make specific reference to a more limited form of giving notice by handing it to a person, which necessarily entails the word “giving” as otherwise encompassing doing so by other means, including by giving it to a person authorised to receive documents on his or her behalf.

23    The Minister also limits the scope of authority relied upon by the applicant, as follows:

(a)    In H v Minister for Immigration and Multicultural Affairs [2002] FCA 126; [2002] FCAFC 18; 118 FCR 153 (Lee, Carr and Finkelstein JJ), the Full Court held that notification of a decision to refuse the grant of a visa by sending it by facsimile transmission to the applicant’s migration agent complied with reg 5.02. The applicant contends that the Full Court assumed such compliance, rather than deciding it. However, that is not the correct way in which to read and understand that decision. At that time, reg 5.02 was accompanied by reg 5.03, with the latter providing that the date upon which the fax was sent to the migration agent is not the date upon which it is taken to be received, but rather was deemed to have taken place seven days after the date of the document. Their Honours had express regard to the notification being sent to the migration agent, which was only tenable if that was treated as being effective in giving the document to that agent. The point was therefore decided and not merely assumed, forming part of the ratio of the decision.

(b)    In WACB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50; 210 ALR 190, the High Court was concerned with the distinction between the actual giving of a document, as opposed to its mere constructive delivery. In that case the word “give” in s 430 of the Migration Act was not defined. The visa applicant was told that the Refugee Review Tribunal had decided he was not entitled to a protection visa, and that he had a right to apply to this Court for judicial review of that decision with 28 days of being notified of it, but was not physically given the notification letter in any way. The plurality (Gleeson CJ, McHugh, Gummow and Heydon JJ), said at [37] (omitting footnotes) that:

… to give a document ordinarily requires its physical delivery, not some act of constructive delivery of possession which, at general law, may suffice to transfer property in a chattel. It will not be enough to communicate to the applicant orally that the document has arrived, or to communicate the gist of the document, or even to read the document to the applicant. What is required is that the written statement be physically given to the applicant. …

Properly understood, that passage means that there must be an act of actually physically giving the document, but that does not in terms confine that to handing it over in person.

(c)    To like effect, when Burchett J as a member of the Full Court in the earlier decision of Sook Rye Son v Minister for Immigration and Multicultural Affairs [1999] FCA 7, 86 FCR 584 said at [6] that reg 5.02, in the context of “giving to the person himself or herself, or to another person authorised” requires “actual delivery to the one or the other of those persons”, was again distinguishing between the actual giving of a document and the constructive giving of a document, not to handing over in person as opposed to some other means of actual delivery. This interpretation was supported by a subsequent consideration of his Honour’s observation to that effect by O’Connor and Mansfield JJ in Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 581 at [8].

(d)    In Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174; 288 FCR 180 (Yates, Griffiths and Moshinsky JJ), the primary finding was that reg 5.02 did not apply because their Honours found that the appellant had not been taken into immigration detention at the time he was notified of a cancellation decision. The giving of that notification took place by registered post. Their Honours made an alternative finding at [39] that even if reg 5.02 had applied, the appellant was served with the cancellation notice because it was given to him. If sending the notification by registered post constitutes “giving” for the purposes of reg 5.02, it is difficult to see why emailing it would not.

(e)    In Minister for Immigration and Border Protection v EFX17 [2021] HCA 9; 271 CLR 112 (Kiefel CJ, Gageler, Keane, Edelman and Steward JJ), the High Court held in part of [24] (omitting a footnote):

The use of “give or deliver unto” in legislation has been described as the “exact equivalent” of “has been served on” in a context where a document “had come to the hands of the applicant”. Section 28A of the Acts Interpretation Act 1901 (Cth) is also premised upon the assumption that verbs such as “give", when used in Commonwealth legislation, are alternatives to “serve” so that one manner in which giving a document can be satisfied is “by delivering it”.

It is therefore plain enough that handing a document over constitutes giving it, but that actual delivery by other means also constitutes giving it.

24    Again, the Minister’s argument is plainly correct. There is no good reason to read down the word “giving” by interpreting that word as though there was also a requirement to hand a written notice of the delegate’s non-revocation decision personally to either the applicant or his solicitor. The tenor of the authorities above, when properly understood, accord with that conclusion.

25    The reasoning advanced by the Minister also accords with the ordinary understanding of “giving”. The online Macquarie Dictionary defines “giving” as a verb as the “present participle of give”. The primary definition of “give” is “to deliver freely”, which necessarily encompasses handing over in person, but does not invariably require that mode of delivery. That accords with the ordinary sense of giving when referring to a thing being provided by one person to another.

26    In ordinary parlance, the mode of giving and thereby receiving something may also be affected by some agreement or arrangement reached between the giver and the receiver. For example, the prospective recipient in day to day life may agree to something being left for them at a convenient location, or with another person, which then in fact results in the item being given, upon it being collected. In this case, the mode of giving in the sense of delivering by email was expressly provided for by the form titled “Appointment of a registered migration agent, legal practitioner or exempt person” dated 22 December 2021, detailed above, and signed by both the applicant and his solicitor. While that form was not necessarily required to permit giving to take place by email for the purposes of reg 5.02, the express authority to do so puts that beyond doubt.

27    It is important to note, however, that compliance with reg 5.02 is not achieved merely by sending an email; it must be accompanied by the email being actually received. While there are evidentiary presumptions of receipt flowing from sending a document by post and by electronic means in ss 160 and 161 of the Evidence Act 1995 (Cth), applicable in this Court, those presumptions are rebuttable. Even before the Tribunal, where the rules of evidence do not apply, ordinarily sending of an email will, in context, amount to proof of delivery, but not always. What matters is delivery, not merely sending.

28    In this case, there is no issue raised as to the email not having been received by the applicant’s then solicitor. To the contrary, the argument was conducted upon the basis that the email was in fact delivered to the solicitor. Receipt of this email was consistent with numerous communications between the National Character Consideration Centre (NCCC) within the Minister’s Department and the applicant’s then solicitor throughout the revocation decision-making process.

29    If a person’s visa has been cancelled, with the result that they are in immigration detention, it will often be prudent for the Minister to arrange for hand delivery of a document, including written notice of a delegate’s non-revocation decision, upon that person in order to put the question of having given notice or some other document beyond doubt. But that is not always going to be the best way. If the former visa holder is represented by a migration agent or solicitor, it is often going to be better to have the notification given to that person, not least because of very short limitation periods for merits review applications being made. If the applicant’s argument in this case were to prevail, he would be better off, but many others in a like position are likely to be worse off, not least because of the difficulties in conveying the notice in paper form and handing it in person to a lawyer or migration agent. The provisions need to be considered in a way that does most to promote the overall objectives of the requirement to give written notice in the most effective way.

30    The sending and receiving of written notice of the delegate’s non-revocation decision by email to the applicant’s solicitor, such that it was actually delivered, constituted giving that notice for the purposes of reg 5.02. It follows that, for this additional and independent reason, the originating application must be dismissed.

Conclusion

31    The originating application must be dismissed with costs.

Associate:

Dated:    11 May 2023