Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 (23 August 2005)

Last Updated: 23 August 2005

FEDERAL COURT OF AUSTRALIA

Xie v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCAFC 172

MIGRATION LAW – MIGRATION APPEALS – appeal period – whether notification of the decision was in the "prescribed way" under Migration Act 1958 – whether notification by pre-paid post means the person is taken to have received the document



WORDS AND PHRASES – ‘prescribed period’



Migration Act 1958 (Cth) ss 66, 294B, 347, 494B, 494C, 593
Acts Interpretation Act 1901 (Cth) ss 29, 36

Migration Regulations (Cth) rr 2.16, 4.10

Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 377; (2000) 98 FCR 77 considered
Murphy v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 657; (2004) 135 FCR 550 followed
VEAN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 311; (2003) 133 FCR 570 followed










BIN XIE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

QUD 120 OF 2005




SPENDER, KIEFEL and DOWSETT JJ
23 AUGUST 2005
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 120 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	BIN XIE APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	SPENDER, KIEFEL and DOWSETT JJ
DATE OF ORDER:	23 AUGUST 2005
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The application for an extension of time in which to appeal be dismissed.

2. The purported appeal also be dismissed.

3. The appellant pay the respondent’s costs of the proceedings.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 120 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	BIN XIE APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	SPENDER, KIEFEL and DOWSETT JJ
DATE:	23 AUGUST 2005
PLACE:	BRISBANE

REASONS FOR JUDGMENT

THE COURT:

1 On 12 May 2005, the appellant filed a notice of appeal from an order of a Federal Magistrate dismissing an application for review of a decision of the Migration Review Tribunal (the "Tribunal"). The Magistrate’s order was made on 19 April 2005. The appeal period expired on 10 May 2005. The appellant now seeks an extension of time in which to appeal. The respondent offers no substantial opposition to such extension, provided there is a viable ground of appeal. It is therefore convenient to consider the merits of the case. The relevant facts appear sufficiently from [3], [4], [5] and [6] of the Magistrate’s reasons as follows:

‘3. The applicant is a national of the Peoples Republic of China and entered Australia on 4 October 2001 on a student visa. Whilst there may have been some previous issues with the applicant’s student visa, those matters were resolved. However, on 11 March 2003, the applicant applied for another student visa. The basis of the visa application at that time stated an intention of the applicant to study a Diploma of International Business, which was to commence in March 2004 and finish by March 2005.

4. The applicant gave an address for service and indicated that all correspondence in relation to the visa application should be directed to him personally. When it became apparent to the Minister that there were some difficulties in the applicant having failed to sit for his exams in semester 1, that being apparently reported to the Department, on 4 August 2004, a Delegate of the Minister refused to grant to the applicant a student visa. The decision record was posted to the applicant’s last address for service set out in his application filed 11 March 2004. I am satisfied it was sent by registered mail under cover of the Department’s letter bearing the same date. Certainly the applicant says that he did not collect the letter from Australia Post until 1 September 2004. I deal with that allegation shortly.

5. On 8 September 2004, the applicant lodged with the Migration Review Tribunal an application for review seeking review of the Delegate’s decision, and by decision made 9 December 2004, the MRT decided the applicant’s application for review to the Tribunal was ineligible because it was lodged out of time.

6. The actual decision of the MRT was in the following terms:

"As the review application was lodged with the Tribunal on 8 September 2004, the review application was not lodged within the prescribed period for applying for review." ’

2 Although it is not entirely clear from the above extract, the Magistrate proceeded upon the basis that the letter was dated 4 August 2004 and was ‘sent’ with the decision record on that day.

3 The Tribunal’s jurisdiction is statutory and must be invoked in the prescribed manner. Section 347 of the Migration Act 1958 (Cth) (the "Migration Act") provides:

‘(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 subsections 338(2), (3), (3A), (4) or (7A) – 28 days after the notification of the decision; or
(ii) if the MRT-reviewable decision is covered by subsections 338(5), (6), (7) or (8) – 70 days after the notification of the decision; or
(iii) if the MRT-reviewable decision is covered by subsection 338(9) – the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after notification of the decision; and

(c) be accompanied by the prescribed fee (if any).’

4 Subparagraph 347(1)(b)(i) applied to the Tribunal’s decision. Even a reasonably careful reader might (wrongly) conclude that an application must be filed within 28 days from notification of the decision. However the word ‘prescribed’ in the phrase ‘within the prescribed period’ is of critical importance. Pursuant to s 5 ‘prescribed’ means ‘prescribed by the regulations’. Subs 347(5) offers some explanation of the statutory intention. It provides:

‘Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of MRT-reviewable decisions (which may be decisions that relate to non-citizens in a specified place).’

5 Subsection 347(1) fixes the maximum period within which applications may be made but authorizes the making of regulations prescribing shorter periods. Relevantly, reg 4.10(1)(a) prescribes a period of 21 days ‘after the date on which the notice is received’. This is in contrast to par 347(1)(b)(i) of the Migration Act which refers to a period of time ‘after notification of the decision’. Nothing turns on this inconsistency.

6 Pursuant to subs 66(1), the Minister is obliged to notify a visa applicant of a decision to grant or refuse his or her application ‘in the prescribed way’. Subsection 66(2) prescribes the content of such a notification. Clearly, it is to be in writing. Pursuant to reg 2.16 the Minister must give notification using one of the methods specified in s 494B of the Migration Act. That section relevantly provides as follows:

‘(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.

(2) ...

(3) ...

(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.’

7 In the present case, the notification was dated 4 August 2004 and dispatched on that date by registered post to the appellant at 10 Mt D’Aguilar Crescent ALGESTER QLD 4115. It is not disputed that this address satisfied the requirements of subpar 494B(4)(c).

8 Section 494C provides relevantly as follows:

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

...

(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.’

9 The term ‘working day’ excludes Saturdays and Sundays. See s 5 of the Migration Act. Inevitably, the period of seven days from 4 August 2004 (a Wednesday) extended over a weekend. Thus the appellant is taken to have received the notification on Friday 13 August 2004. He asserts that he actually received it on 1 September 2004. The period of 21 days from 13 August 2004 expired on Friday 3 September 2004. (Section 36 of the Acts Interpretation Act 1901 (Cth) prescribes that in such calculation the commencing date is excluded.) However the Tribunal seems to have proceeded on the basis that the relevant period expired on Monday, 6 September 2004. That discrepancy is of no present consequence.

10 In the letter of 4 August 2004 which accompanied the notification, the appellant was advised:

• that he would be ‘taken to have received this letter 7 working days after the date of this letter’;
• that if he wished to lodge an application for review, he must do so within 21 calendar days ‘after you receive this letter’; and
• that any application could not be accepted after ‘that date’.

11 Thus, on 1 September 2004 (when he claims to have received the notification), he should have inferred that:

• he was taken to have received it on 13 August 2004; and
• that he had 21 calendar days from that date in which to file his application, that is until 3 September 2004.

12 On 8 September 2004 the Tribunal received a letter from solicitors acting for the appellant. It contained the application for review and a statutory declaration by the appellant dated 7 September 2004. Attached to the statutory declaration was the envelope in which the notification had been forwarded to him. The envelope is stamped ‘Registered Post’ and bears a label with the words ‘Registered Post Prepaid Label’ and an identifying number. The envelope is addressed to the appellant at the address stated above. Written on it are the figures ‘16/8’, ‘23/8’, and ‘30/8’, presumably dates in August. In the statutory declaration the appellant asserted that he had received the envelope and contents on 1 September 2004 and had not been aware of such contents prior to that date. He did not say whether he had received any earlier notifications from the post office that there was registered mail awaiting collection. Other documents were also forwarded under cover of the solicitor’s letter. It is not necessary to refer to them.

13 On 1 October 2004, an officer of the Tribunal wrote to the solicitor, indicating that the application for review appeared to be out of time and inviting the appellant to provide any documents and submissions concerning that issue. On 9 December 2004 the Tribunal decided that the application was out of time. The appellant was advised of this decision under cover of a letter dated 10 December 2004. The appellant sought judicial review of the Tribunal’s decision, alleging jurisdictional error. The primary allegation raised in the application seems to have been that the relevant time limit for his application to the Tribunal was 28 days rather than 21. There was also a suggestion that any time limit should have been calculated from 1 September 2004. A perusal of the Magistrate’s reasons suggests that the appeal was conducted on those grounds. His Honour disposed of it for reasons which reflected the above analysis of the relevant provisions. The notice of appeal against the Magistrate’s decision raises similar grounds but also makes the erroneous assertion that he fell into jurisdictional error. In written submissions on appeal, counsel for the appellant submitted only that given the appellant’s claim that he had not received the notification until 1 September, the deeming provision contained in s 494C did not operate. That argument must fail. 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. In Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 377; (2000) 98 FCR 77 the Full Court considered a similar, but not identical provision, then found in s 53 of the Migration Act, but now repealed. It provided that in certain circumstances, an applicant was to be taken to have received a notification ‘even if it was not received’. At [17], O’Connor and Mansfield JJ observed:

‘... the statutory provisions operated to deem notification of the decision of the delegate of the Minister, notwithstanding that the applicant may not have received actual notification of the relevant decision until some later time than that deemed by the Act and the Regulations or at all.’

14 The wording of s 494C is not quite so clear. Spender J, in Murphy v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 657; (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.

15 In the course of argument the Court raised with counsel certain other matters of concern. One such matter was the misleading effect of s 347 to which we have referred above. It is not necessary to take that matter any further. In any event, the appellant was advised of the applicable time limits at a point in time at which he was still able to file a valid application to the Tribunal. The other matter raised by the Court concerned the appropriateness or otherwise of the use of registered post for delivery of the notification. This matter was also considered in Singh. The primary Judge had inferred that a letter sent by registered post was sent to the nearest post office and not to the address on the envelope, and therefore was not sent in compliance with the Migration Act. That inference seems to have been based on the primary Judge’s knowledge of the postal system rather than any evidence. The Full Court rejected this view, at least partially upon the basis that there was no evidence supporting it. O’Connor and Mansfield JJ observed at [29]:

‘Whether or not the procedure adopted by Australia Post for the delivery of registered mail is as described by the learned judge at first instance, the position is that the letter was sent by pre-paid post and it was addressed to Mr Singh at the address he provided under s 53 of the [Migration Act]. It was clearly intended to have been received by him.’

16 Their Honours also referred to s 29 of the Acts Interpretation Act 1901 (Cth) which provides:

‘Where an Act authorizes or requires any document to be served by post, whether the expression "serve" or the expression "give" or "send" or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected by properly addressing prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.’

17 Of course the reference to receipt in the ordinary course of post is displaced by the express provisions of s 494C. We also note that in VEAN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 311; (2003) 133 FCR 570 at [29], the Full Court appears to have assumed that the use of registered post was consistent with s 494B.

18 Had there been any reason to doubt that the notification was dispatched by pre-paid post to the appellant at the address provided by him to the Minister for the purposes of receiving documents as required by s 494B, the Tribunal would have been obliged to consider the matter. None of the grounds identified in the application for review specifically asserted any such failure. We do not understand the appellant to have made that assertion in the Tribunal, before the Magistrate or in this appeal. The label on the envelope indicates that post was pre-paid. There is no suggestion that the appellant was asked to pay for it. As was the case in Singh, there was no evidence before the Tribunal (and therefore before the Magistrate or this Court) as to the method of delivery adopted by the post office for registered mail. All that is known with certainty is that the envelope and contents were sent by pre-paid post to the appellant at the appropriate address. Section 494B requires no more.

19 The Tribunal’s finding that the application was out of time was a decision as to the existence of a condition precedent to its jurisdiction. It is therefore open to re-examination in appropriately constituted proceedings. However the Tribunal correctly concluded that its jurisdiction had not been validly invoked.

20 In those circumstances there is no viable ground of appeal. The application for an extension of time in which to appeal should be dismissed, as should be the purported appeal. The appellant is to pay the respondent’s costs of the proceedings.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Kiefel & Dowsett.

Associate:

Dated: 23 August 2005

Counsel for the Appellant:	Mr S Nguyen
Solicitor for the Appellant:	Butts & Barkley
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	5 August 2005
Date of Judgment:	23 August 2005