Chai v Minister for Immigration & Anor [2011] FMCA 22 (24 January 2011)

Last Updated: 3 May 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHAI v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 22

MIGRATION – Visa cancellation – whether applicant’s authorised recipient validly notified of decision by email – where no email address specified in form 956 Appointment of migration agent, exempt agent or authorised recipient – where email address notified verbally – notification valid.

Migration Act 1958 (Cth), s.494A(1), 494B(5), 494D

Singh v Minister for Immigration & Anor [2010] FMCA 305

Applicant:

BAO LIN CHAI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

BRG813 of 2010

Judgment of:

Jarrett FM

Hearing date:

17 December 2010

Date of Last Submission:

17 December 2010

Delivered at:

Brisbane

Delivered on:

24 January 2011

REPRESENTATION

Counsel for the Applicant:

Mr Cruise

Solicitors for the Applicant:

Cruise Lawyers

Counsel for the Respondents:

Ms Wheatley

Solicitors for the Respondents:

Clayton Utz

ORDERS

(1) The application filed on 10 August, 2010 is dismissed.
(2) The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,865.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE

BRG813 of 2010

BAO LIN CHAI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This an application for an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of a migration review tribunal made on 24 February, 2010.
2. The Tribunal determined that it had no jurisdiction to hear Mr Chai’s application to review a decision of the Minister’s delegate to cancel his Business (Long Stay) (Subclass 457) visa. The Tribunal reached its conclusion on the basis that Mr Chai’s application was not made within the time specified in the Migration Act for commencing his application for review and the Tribunal had no power to extend the time in which for him to do so.
3. The issue raised by this application is whether the applicant was notified, for the purposes of the Migration Act, of the delegate’s decision to cancel his visa so as to commence the period prescribed for lodging his application for review.

Background

4. The following recitation of facts is helpfully set out in the written submissions of Counsel for the respondent. The solicitor appearing for Mr Chai did not take issue with the facts as set out in those written submissions, save in one respect, to which I shall refer in due course.
5. Mr Chai is a national of the People’s Republic of China, born on
   11 April, 1969. Mr Chai was granted a Business (Long Stay) (Subclass 457) visa on 5 July, 2007.
6. On 25 November, 2009 the Delegate sent by registered post to the address of Mr Chai a Notice of Intention to Consider Cancellation under s.116(1)(b) of the Act, which allowed Mr Chai an opportunity to comment on the grounds for cancellation and to give reasons why his visa should not be cancelled.
7. On 11 December, 2009 a facsimile was received by the Department of Immigration from Mr Chai’s migration agent, Mr Cruise of Cruise Lawyers. A short submission was made in relation to the notice of intention to cancel and attached was a copy of certain documents, including a form 956. The form 956 was entitled Appointment of a migration agent or exempt agent or other authorised recipient and it is central to the arguments in this case. It was not completed in certain respects.
8. On 13 January, 2010 the Minister’s department contacted Mr Cruise by email, and asked him to fully complete the form 956 at items 7, 8, 16 and 17. Item 17 was in the form of the following question:
   • As the migration agent or exempt agent or authorised recipient named on this form, do you agree to the department communicating with you by fax, e-mail or other electronic means?
9. Thereafter followed two boxes – one marked “Yes” and the other marked “No”. In the event that the “Yes” box was marked, further information was called for, being a “fax number” and an “E-mail address”.
10. The fully completed form was not returned and, an officer of the Department followed up the Department’s request on 28 January, 2010 by a telephone call with Mr Cruise. The file note records:
    • "firstly he apologised for not getting back to me and
      confirmed it is fine to communicate with him via email [e-mail]”.
11. I referred earlier to one dispute between the parties as to the facts. It is not so much a dispute as to the facts, but rather as to the effect of this conversation at law. For reasons that I have given below, ultimately, this dispute is unimportant.
12. Further enquiries for the purpose of the notice of intention to cancel were made by telephone with Mr Cruise on 10 February, 2010 and
    12 February, 2010. The inquiries concerned Mr Chai’s employment. Mr Cruise provided certain advice – irrelevant for present purposes, to the department in response to those enquiries.
13. The Delegate made a decision to cancel the visa on 24 February, 2010. Mr Chai was notified of the Delegate’s decision to cancel the visa by email correspondence dated 3 March, 2010 which was addressed to Mr Cruise at [e-mail].
14. On 19 March, 2010 Mr Chai contacted the Department personally, and was advised that his visa had been cancelled. Mr Chai stated that he was unaware of the cancellation.
15. On 29 April, 2010 Mr Chai made an Application for Review to a Migration Review Tribunal which was acknowledged on 30 April, 2010.
16. On 4 May, 2010 Mr Cruise sent by facsimile to the MRT an amended Part A of the Application for Review. On 19 May, 2010 the MRT, in accordance with s.359A of the Act, invited Mr Chai to comment on certain information. Comments were sought on whether the Tribunal had jurisdiction to hear the matter because in the Tribunal’s view, the Application for Review was not lodged within the prescribed period. Any comments were required by 2 June, 2010.
17. On 1 June, 2010, Mr Cruise provided comments in relation to the time limits for accepting the Application for Review.
18. On 2 July, 2010 the MRT found it did not have jurisdiction.
19. On 10 August, 2010 Mr Chai filed an application to review the MRT’s decision in this Court. That application itself was out of time, but on 22 September, 2010, an order granting an extension of time within which to commence this application was made.

The Tribunal’s findings

20. The Tribunal made the following findings based upon the material before it:
    1. Mr Chai was not in immigration detention when he was notified of the decision in respect of which he sought review;
    2. Mr Chai was seeking review of an MRT-reviewable decision covered by s.338(3) of the Act;
    100. The applicable period within which to commence a review was 7 working days “commencing when Mr Chai was validly notified of the decision in accordance with the Act: s.347(1)(b)(i) and r.4.10(10(b).”
    4. Mr Chai gave the Minister (and the delegate) written notice under s.494D of the Act of the name and address of an authorised recipient;
    5. The delegate’s decision notice complied with the requirements of s.127(2) of the Act;
    6. The decision notice was emailed to Mr Chai’s authorised recipient on 3 March, 2010;
21. In submissions, Mr Chai did not take issue with any of the above findings. However, the Tribunal made two further findings which are at the centre of the issues in this case, namely:
    1. that the decision notice, dated 3 March, 2010 was transmitted by email on 3 March 2010 to the last known email address provided to the Minister by Mr Chai’s authorised recipient for the purposes of receiving documents; and
    2. the decision notice was emailed to the correct email address “in accordance with s.127(1) and 22.494A and 494B(5)(b).”

Consideration

22. In Singh v Minister for Immigration & Anor [2010] FMCA 305
    I observed:
    • 29. When the Minister decides to cancel a visa, he or she is to notify the visa holder of the decision in the prescribed way: s.127 of the Act. That prescribed way is in writing: r.2.45 of the Migration Regulations 1994. In combination, s.127 and rr.2.45 and 2.54 require that the Minister give to a former holder of a visa a “document” notifying of the cancellation of that person’s visa: Zhang v Minister for Immigration and Citizenship [2007] FCAFC 151; (2007) 161 FCR 419 at 421. Such a written notification is also a document for the purposes of the Act: s.25 Acts Interpretation Act 1901.
23. Mr Chai took up the opportunity afforded to him by s.494D(1) of the Act to give to the Minister notice of the name and address of another person authorised by him to receive documents under the Act or the regulations on his behalf. He did that by use of a document entitled Appointment of a migration agent or exempt agent or other authorised recipient. It also bore the notation Form 956.
24. The form 956 accomplished a number of things. First, it served to identify Mr Chai, by both name and client number. Secondly, it recorded that he was submitting the form because he wanted to appoint a migration agent or exempt agent or authorised recipient, inferentially in respect of his temporary visa application identified in part 4 of the form. Thirdly, it gave details of the migration agent Mr Chai wished to appoint, including details of a postal address, mobile and fixed telephone numbers and the agent’s Migration Agent Registration Number. Fourthly, it contained this authority:
    • 14 My migration agent or exempt agent is authorised to act on my behalf and receive written communication for my application (as permitted by law) in relation to:
25. Thereafter appears two options and the option marked “all matters” was ticked. Thus the authority granted by Mr Chai to Mr Cruise was in respect of “all matters”.
26. The form 956 did not require completion by Mr Chai alone. It also required the migration agent, exempt agent or authorised recipient to complete certain parts of the form and sign it. One part to be completed by the agent was item 17. Mr Cruise did not answer item 17, as the context suggests he was asked to do. I have set out the content of item 17 earlier in these reasons.
27. Mr Cruise signed the form 956 and in doing so acknowledged:
    • I understand and accept that I am appointed by Mr Chai, nominator or sponsor and dependants to receive all written communications and, if the appointed migration agent or exempt agent, act as his/her agent (as permitted by law).
28. Although the inclusion of item 17 might suggest that the form 956 might set out the ways in which a migration agent, exempt agent or authorised recipient is prepared to receive documents, in fact it does not do so. On one view, the inclusion of a postal address at item 9 of the form, and the question asked at item 17 of the form might suggest (if item 17 is answered in the negative) that documents will only be received by post. But that cannot be so, because personal delivery is available under the Act and the form could not limit the ways, otherwise available under the Act, in which a document could be given to the migration agent, exempt agent or authorised recipient.
29. Once notice of the appointment was given, the Minister was obliged to “give” to Mr Cruise, as Mr Chai’s authorised recipient, any documents that the Minister would otherwise have given to him: s.494D(1) of the Act. If the Minister gave a document to Mr Cruise, the Minister is taken to have given the document to Mr Chai: s.494D(2) of the Act.
30. In circumstances where Mr Chai had authorised another person to receive documents on his behalf, the Minister was obliged to give any document to that authorised recipient in accordance with s.494A of the Act.
31. Section 494A of the Act provides for how a person is to be given a document by the Minister where the Minister is not obliged to use a method prescribed by s.494B of the Act. It applies to the giving of a document to a “person”. Mr Chai’s authorised recipient, Mr Cruise, is a “person” within s.494A of the Act and so when giving him a document for the purposes of the Act, s.494A applies.
32. Section 494B of the Act prescribes certain methods by which the Minister may give a document to a person for the purposes of the Act or the regulations. In some cases the use of a method set out in s.494B is prescribed. Where the Minister is permitted or required to give a document to a person under the Act or regulations and no method for doing so is prescribed, the Minister may give the document to the person by any method considered appropriate: s. 494A(1). The method adopted might be one of the methods specified in s.494B: 494A(1).
33. Whether the delegate gave the notice by a method he or she considered appropriate is a question of fact to be answered, ordinarily I would think, by evidence from the particular delegate. But in this case there is no such direct evidence. The Minister argues, and I accept, that the delegate has adopted a means of notification which was thought appropriate in the circumstances. It is ultimately a matter of inference, but I think it appropriate to infer that the delegate gave the notice by a method he or she considered appropriate in the circumstances because:
    1. Mr Cruise had been notified as Mr Chai’s authorised recipient;
    2. Item 17 on the form 956 had been left blank, and so indicated ambivalence as to electronic forms of communication;
    100. On enquiry from the delegate, Mr Cruise suggested that communication by email was acceptable, even though he may not have intended to convey that communication of important documents (such as the notice to cancel) by that means was acceptable.
34. In the present case, the use of a method set out in s.494B was not prescribed. However, the means of notification adopted looks remarkably like that specified in s.494B(5). To be effective delivery pursuant to that subsection, the document must have been:
    1. transmitted by e-mail; and
    2. sent to the last e-mail address provided to the Minister for the purposes of receiving documents.
35. Mr Cruise takes issue with the assertion that his telephone conversation with the delegate on 28 January, 2010 wherein he gave an email address for communication was the equivalent of providing that email address for the purposes of receiving documents. He argues that it was a method for general communication, but not the transmission of important documents such as a notice of cancellation.
36. The point, however, is moot because:
    1. no method of communication is prescribed for notification of a decision to cancel (beyond the prescription in s.127 that the notice be in writing); and
    2. the method to be chosen by the delegate was a matter entirely for him or her pursuant to s.494A(1) .
37. Mr Chai was notified, by the sending of a document notifying the decision to cancel his visa to his authorised recipient, of the delegate’s decision to cancel his visa on 3 March, 2010. The period prescribed for lodging any application for review in respect of that decision commenced to run at that point. The prescribed period of seven working days ended on 12 March, 2010. The application for review was not lodged until 29 April, 2010.
38. In the circumstances, the application for review was not made within the prescribed period. The Tribunal had no jurisdiction to entertain it.
39. No jurisdictional error is established.
40. The application must be dismissed with costs.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Associate:

Date: 24 January 2011