Manaf & Anor v Minister for Immigration & Anor [2009] FMCA 139 (6 March 2009)

Last Updated: 11 March 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MANAF & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 139

MIGRATION – Review of MRT decision – MRT found that it did not have jurisdiction because the application for review of the delegate’s decision was out of time – legislative scheme lays down strict time limits – whether notification of delegate’s decision complied with legislative scheme – whether re-notification cancels earlier notification – whether re-notification compliant with the legislative scheme – declaration that notification not compliant and therefore not given – MRT decision quashed – mandamus order requiring delegate to re-notify in accordance with legislative scheme.

Migration Act 1958 (Cth), ss.66(1), 66(2)(d)(iii), 66(2)(d)(iv), 494B(4) and 501(2)

Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 1292 Pomare v MIMAC [2008] FCA 458

Applicants:

ZAHARA ABDUL MANAF & ANOR

First Respondent: Second Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP MIGRATION REVIEW TRIBUNAL

File Number:

MLG 838 of 2008

Judgment of:

O'Dwyer FM

Hearing date:

25 November 2008

Date of Last Submission:

9 December 2008

Delivered at:

Melbourne

Delivered on:

6 March 2009

REPRESENTATION

Counsel for the Applicant:

Mr Hurley

Solicitors for the Applicant:

Erskine Rodan & Associates

Counsel for the Respondent:

Ms Burchell

Solicitors for the Respondent:

Clayton Utz

DECLARES AND ORDERS THAT:

(1) The applicants have never been notified of the decision of the first respondent’s delegate made on 7 August 2007 to refuse the application for a Temporary Business (Class UC) Independent Executive subclass 457 visa.
(2) The decision of the Migration Review Tribunal made 6 May 2008 be quashed.
(3) There be an order in the nature of mandamus requiring the first respondent to determine which of the options for notification given by s.494B of the Migration Act 1958 is to be used to notify the applicants of the decision of 7 August 2007 and to notify them of the decision by that means.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 838 of 2008

ZAHARA ABDUL MANAF & ANOR

Applicants

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants seek a review of the decision of the Migration Review Tribunal (the Tribunal) made on 6 May 2008, by which decision the Tribunal determined that the applicants' application for review of the decision of the first respondent's delegate was lodged outside of the mandatory prescribed time for lodgement.
2. The applicants are a family consisting of a mother (the principal applicant), her husband and their three children. Hereafter a reference to the applicant is to be taken as a reference to the principal applicant and is inclusive of all applicants.
3. In an amended application filed on 22 October 2008 and supported by contentions of fact and law also filed that day, the applicant set out three grounds for review. During the hearing before me the applicant expanded on the first of those grounds and made submissions in support of that expanded ground. As a formality, after the hearing concluded before me, a further amended application was filed on 2 December 2008 that set out the expanded first ground, which further amended application was supported by written submissions, to which the first respondent also filed submissions.
4. The grounds are discussed in more detail below. It is important, however, in order to understand the grounds that a history of events be provided.

Background

5. The applicant (and her husband and children) are citizens of Singapore. They entered Australia in February 2002 on a four-year Temporary Business (Class UC) Independent Executive subclass 457 visa.
6. In February 2006 the applicant lodged an application for a further Independent Executive subclass 457 visa. In doing so she gave her address to which correspondence could be sent (the first address).
7. The first respondent's delegate refused the further visa application on 7 August 2007. The delegate refused the visa on the basis of the applicant's failure to provide information previously requested.
8. The notification of the refusal of the visa application was sent to the applicant by registered post dated 7 August 2007. This registered post was not received by the applicant and was returned to the Department of Immigration and Citizenship (the Department) on 28 August 2007.
9. On 22 August 2007 the applicant advised the Department of a change of address (the second address).
10. Apparently in response to this notification, the Department sent another registered letter to the applicant on 23 August 2007 informing the applicant of the refusal of the visa. However, this second letter was not sent to the second address, but sent to a wrong address. That letter was returned to the Department marked "address unknown".
11. Other correspondence was sent to the wrong address and the applicant did not become aware of the refusal of the visa until her son was detained at the Melbourne Airport when attempting to leave the country.
12. A request was made by the applicant then to be re-notified, which request was refused by the Department on 18 February 2008.
13. On the advice of the Department the applicant sought to test the validity of the notification previously given by way of a review before the Tribunal.
14. After the Tribunal’s decision, the applicant’s present legal advisers requested that the applicant be re-notified, which request was refused by an officer of the Department on 9 July 2008.

The Tribunal's decision

15. The Tribunal determined that it did not have jurisdiction in the matter because it found that the service of the notification of refusal by means of the registered letter sent on 7 August 2007 was an effective service of that notice according to law (in accordance with s.66(1) and s.494B(4) of the Migration Act 1958 (the Act)). The Tribunal found:
    • That the applicants were properly notified of the delegate's decision and that, therefore, the applicants are taken to have received the notice on 16 August 2007, being seven working says [sic] after the date of notice. This is so even though the notice was returned unclaimed. Therefore, the prescribed period within which the application for review could be lodged ended on 6 September 2007.
16. The application for review to the Tribunal was not lodged until
    28 February 2008, clearly outside the prescribed period.

Grounds for review

17. In the second amended application the applicant set out three grounds.
18. The first was that the applicants were never notified of the primary decision of 7 August 2007, as required by s.66(1) and 66(2)(d)(iv) of the Act, because the purported notification did not inform the applicant of where the application for review can be made as is required by the legislation (and as interpreted in Pomare v MIMAC [2008] FCA 458). The ground was based on the contention that the document enclosed with the notification letter advising of the Tribunal’s address at which to lodge a review could not properly be considered part of “the document” that complied with legislative requirements.
19. By way of a further expansion of the deficiencies in the purported notice of 7 August 2007, the applicant contends that the notification failed to comply with the requirements of s.66(1) and 66(2)(d)(iii) of the Act by failing to indicate "who can apply for the review".
20. The second ground is based on the contention that the second letter sent on 23 August 2007 was in effect a re-notification letter that manifestly was sent to the wrong address. The contention here is that the re-notification, should it be properly categorised as such, superseded the earlier notification (which was found by the Tribunal to be a valid notification) and because of such, it is to the re-notification that one must address the question of whether that was a notification properly given. The contention is simply that the first is superseded and the second is manifestly not in accordance with legislative requirements in that it was sent to a wrong address.
21. The third ground for review concerns the decision of the Department's officer on 9 July 2008 not to re-notify. It was contended that the decision was so unreasonable that no reasonable decision-maker could have made it.

The contentions

22. In respect of the first two grounds, the applicant contends that the facts of this case, and the effect of the action of the Department, must be considered in a legislative context that requires a strict compliance by the Department with legislative provisions.
23. The context relied on by the applicant in respect of the provisions set out in s.66 of the Act was addressed in Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 1292 by his Honour Gray J in [45] to [48]. In that decision, in summary, his Honour concluded that the purpose of the section was to ensure that rights of review of decisions operate fairly by prescribing detailed means of informing an unsuccessful applicant for a visa of the outcome of that application and the means by which a review may be instigated. His Honour concluded that without all of the information required to be provided an unsuccessful applicant would be disadvantaged in the operation of the scheme where time limits are strict, and in which there does not exist any power, discretionary or otherwise, to enlarge such time limits.
24. His Honour said at [46] that:
    • Each element of the requirements of s.66(2) is an integral part of the scheme of notification. The absence of any one item of information would disadvantage an unsuccessful applicant. There is, therefore, a strong case for saying that, if one of the requirements of s.66(2) has not been complied with, the duty of notification imposed by the section has not been carried out.
25. The applicant also relies upon the decision in Pomare where Lindgren J considered the provision under s.501(2) where a notice was required to state where an application for review could be made. In that case his Honour found that it was not sufficient compliance with that requirement to refer generally to where information may be obtained as to where an application for review could be lodged. He found it was a necessary part of the notification that the address of the Tribunal's registries should be provided, which address was to include a street name.
26. The applicant relies upon the two authorities of Chan Ta Srey and Pomare in support of the contention that a failure to comply strictly with the provisions of s.66(2) amounts to a failure to give notification, and consequently time does not run until the requisite notification has been given.
27. In that context, therefore, the applicant submits that the purported notification sent on 7 August 2007 failed to comply with legislative requirements as follows:
    • Instead of one document, a number of documents were sent from which the applicant was to discern the information required to be provided under the legislative scheme;
    • The documents, in any event, failed to provide adequate information (in a readily digestible and clear way) as to who had the right to apply for a review; and
    • The documents were not properly dated.
28. The deeming provisions set out in s.494B and 494C refer to "a document" or "the document" that is to be given or deemed to have been received by the applicant. The applicant highlights that the provisions do not refer to "the documents" or "the documents and enclosures". In this regard, the applicant takes issue with the purported notice given on 7 August 2007 in that the notice was composed of a covering letter, a copy of the decision record, and brochures as to the location of registries and who was entitled to apply for a review to the Tribunal. Section 494B(4) refers to "the Minister dating the document" and then dispatching it within three working days of "the date of the document". The language, it was emphasised, refers to the singular and not the plural in respect of documentation.
29. The applicant accordingly draws issue with the first respondent’s position that the documents sent by way of notification complied with the legislative scheme. The applicant also takes issue with the fact that the information brochure sent was dated February 2007, which is more than three working days before it was sent to the applicant in August 2007.
30. The applicant contends first, that there should be only one document properly dated and if that argument is not acceptable, then, secondly, each of the other documents included in the notification must be properly dated.
31. I do not accept these contentions. In my view the document referred to in the legislation is clearly that identified as the letter sent dated 7 August 2007 and that the other enclosures with that document are, in my view, included within “the document”, which is properly dated, by reference.
32. I am satisfied that the legislative imperative that the notification be dated so that the strict time limits may be calculated has been satisfied in this instance, notwithstanding that the enclosures are either undated or bear the historical date on which the document was last edited. Clearly, in my view, the operative date, and the one that complies with the legislative requirement, is that on the letter advising of the refusal. There is no basis for confusion arising from the date appearing on one of the enclosures.
33. The next contention of the applicant is that the notification failed to provide guidance as to who can apply for a review. The applicant contends that the information should be clearly spelt out in the body of the notification so that there is no prospect of confusion. The applicant contends that the purported notification, although it clearly informed of the applicant’s right to a review, did not inform of the other applicants’ rights to a review. At best, it was contended, it may be considered ambiguous when it referred to “you” having a right to a review. Because of a lack of clear language on the point, the notification was said not to comply with the requirement in s.66(2)(iii) to inform the other applicants of their right to a review.
34. In response to that contention, the first respondent submits that s.52(3C) of the Act provides that where one applicant is given a notification, then any other applicants are taken to have each been given the notification. I am satisfied that this ground, for the reason submitted by the first respondent, is not sustainable.
35. For the above reasons the first expanded ground for review is not sustainable.

Re-notification

36. The applicant also contended that the letter sent on 23 August 2007 amounted to a re-notification, which, in effect, cancelled the earlier one sent on 7 August 2007. To have two notifications would be a source of confusion. The first respondent contends, however, that the second letter was merely a courtesy letter, in effect advising of the decision and that it did not invalidate the earlier notification.
37. A perusal of the second notification, in my view, readily reveals that it is not couched in the terms of a courtesy letter. It incorporates the enclosures that were sent in the first notification. A plain reading of the letter, in my view, leads to the inevitable conclusion that it is a re-notification which appears to have been initiated by the Department when informed of the applicant's change of address. In sending the second notification, in my view, the Department was acting as it should to ensure that notification of the decision was properly given to the applicant in compliance with a legislative imperative. The Department also went through the same process for the second letter and notification as it had adopted for the first (namely by registered post incorporating all of the earlier documents). If the letter was to be merely a courtesy letter, then there would not have been any necessity for it to have been sent by registered mail incorporating all of the documents earlier sent.
38. Having elected to re-notify, then the first notification is redundant and cannot form the basis, in my view, for the calculation of prescribed time limits.
39. Of course, if there was an attempted re-notification, as I find there was, then the attempted re-notification failed because it was clearly sent to the wrong address and in keeping with the legislative imperative that the applicant be notified of the outcome, the second notification plainly did not satisfy that imperative.
40. In my view, it cannot be said that a proper notification has been effected pursuant to s.66 of the Act.

Conclusion

41. I find that the Tribunal erred in its determination that an effective notice was served because the re-notification invalidated the first notification and, because of it being sent to the wrong address, the re-notification plainly did not satisfy the legislative scheme.
42. It is appropriate, therefore, that I make a declaration that the applicant has never been notified of the delegate's decision of 7 August 2007 to refuse the application for a subclass 457 visa.
43. There should be an order that the decision of the Tribunal made 6 May 2008 be quashed.
44. There should also be an order in the nature of mandamus requiring the first respondent to determine which of the options of notification given by s.494B of the Act is to be used to notify the applicant of the decision of 7 August 2007 and to notify her of the decision by that means.
45. In my view, nothing is to be gained by remitting this matter to the Tribunal (as suggested by the first respondent) for further consideration, as I have found that the necessary step to enliven the Tribunal’s jurisdiction has not taken place.
46. In respect of the third ground for review, I am not satisfied that I have jurisdiction to hear and determine a review of that delegate's decision. In any event, because of my determination in relation to the other ground, it is not necessary to fully consider this aspect of the applicant's case.

I certify that the preceding 46Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !forty-sixforty-six (46) paragraphs are a true copy of the reasons for judgment of O'Dwyer FM

Associate:

Date: 6 March 2009