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Pun v Minister for Immigration & Anor [2011] FMCA 63 (11 February 2011)

Last Updated: 11 February 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PUN v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Review of decision of MRT that it had no jurisdiction to consider a review of a delegate’s decision because the application was out of time – whether by accepting the department’s offer to communicate by email the department was restricted to that form of communication so that the sending of the decision letter by post did not constitute giving a document for purposes of s.494B Migration Act 1958.

Migration Act 1958 (Cth), ss.66(1), 494B, 494B(4)(c), sub-s.4(b), (c)(i), (ii)
Migration Regulations 1994, R.2.16
Oxford Dictionary of Law 2002
Acts Interpretation Act 1901, s.28A

SZOBI v Minister for Immigration & Anor (No.2) [2010] FCAFC 151
Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 377
Xie v Minister for Immigration [2005] FCAFC 172
Maroun v Minister for Immigration & Anor [2009] FCA 1284
Haque v Minister for Immigration & Anor [2010] FCA 346

Applicant:
NARAYAN PUN

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
MIGRATION REVIEW TRIBUNAL

File Number:
SYG 2303 of 2010

Judgment of:
Raphael FM

Hearing date:
3 February 2011

Date of Last Submission:
3 February 2011

Delivered at:
Sydney

Delivered on:
11 February 2011

REPRESENTATION

Counsel for the Applicant:
Mr J R Young

Solicitors for the Applicant:
Shamser Thapa & Associates

Counsel for the Respondents:
Mr T Reilly

Solicitors for the Respondents:
Sparke Helmore

ORDERS

(1) Application dismissed.
(2) Applicant to pay the First Respondent’s costs assessed in the sum of $5,800.00.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2303 of 2010

NARAYAN PUN

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

  1. It is a constant source of wonder within the context of legal interpretation that howsoever many decisions there may be upon the way in which a standard document should be interpreted there is always room for more argument. One only needs to think of the volumes of law reports devoted to interpretation of the bankruptcy notice to understand that howsoever clear the legislature might have made its intentions and howsoever erudite may be the interpretation of those intentions by the highest courts in the lands, there always seems to be something more to be said. So it would appear with the code provided for the method by which a Minister gives documents to a person found in s.494B of the Migration Act 1958 (the “Act”).[1]
  2. Mr Pun is a Nepalese citizen who came to Australia in 2008 to study for a diploma of community welfare work at Lamart College of Technology. In 2009 he decided to enrol himself in another institution. For reasons which are not relevant to these proceedings he made an application for a student (temporary) visa on 10 March 2010.[2]
  3. The form he was required to complete might be described by some as a “plain English” form which requests a number of details. The first heading is “Your details”, the second is “Details of your confirmation of enrolment”, the third is “Sponsorship details”, the fourth is “residential address details”, the fifth is “contact details”. It is with this latter question that this application is concerned. However, directly before the heading “Contact details” and under the “Residential address details” section there are contained these words:
  4. The “Contact details” section is in the following form:
  5. After Mr Pun submitted his application he received a number of communications from the department by email. These are found on pages 1 – 10 of the Supplementary Court Book. On 22 April 2010 a delegate of the Minister determined to refuse the grant of the visa and it is said that the decision letter was sent by registered post to Mr Pun at the address in Ultimo which is found in the “Contact details” section of the application form. It is conceded that the letter was never received by Mr Pun who, on his own evidence, had moved from that address prior to 22 April. He accepts that although he intended to he did not comply with the requirement contained under the heading “Declaration” that:
  6. After some time had passed Mr Pun became concerned that he had not heard from the Department and so on or about 8 July he emailed the Department asking what had occurred. The Department responded that the decision had been made on 22 April and was sent to him by registered mail but provided him with a copy of the decision record which included the information concerning a review to the MRT. On 23 July 2010 Mr Pun applied to the MRT for review of the decision. On 23 September 2010 the Tribunal determined that it did not have jurisdiction in the matter because it found that the decision notice had been despatched within three working days of the date of the letter to the correct address in accordance with s.66(1) and s.494B(4) of the Act and therefore Mr Pun was taken to have received the notice on 4 May 2010 being seven working days after the date of the notice. The Tribunal determined that the prescribed period of 21 days within which the application for review could be lodged ended on 25 May 2010 and so an application filed on 23 July 2010 was filed after the prescribed period had expired and was invalid. It is against this finding that the applicant has sought relief from this court.
  7. Section 494B is in the following form:

(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
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.
Giving by hand
Dispatch by prepaid post or by other prepaid means
Transmission by fax, e-mail or other electronic means
(5) Another method consists of the Minister transmitting the document by:
to:
When the Minister hands a document by way of an authorised officer

It is also relevant to consider Migration Regulations 1994 (the “Regulations) Reg 2.16:

“MIGRATION REGULATIONS 1994 - REG 2.16
Notification of decision on visa application
...
  1. The respondent argues that it utilised the method set out in s.494B(4). It submits that the court should infer from the following evidence that the document was despatched within three working days of its date. The first is the registered post sticker found upon the copy of the decision letter at [CB 21]. The second is a document referred to as the “Web Dynpro ABAP” found at [CB 57]. This appears to be a tracing document in relation to registered mail. The third is an event decision detail document found at page 13 of the Supplementary Court Book which notes that the decision letter and MRT brochure was sent to the client via registered mail and returned unclaimed. The fourth is the document annexed to the Affidavit of Katherine Elizabeth Whittemore sworn on 21 January 2011 being a “converga” document indicating that a registered letter with the same number found on the sticker attached to the original decision letter was sent to Mr Pun in Ultimo on 23 April 2010.
  2. The applicant argues that these documents do not constitute evidence that the decision letter found at [CB 21] was actually put into an envelope addressed to Mr Pun or that the envelope addressed to Mr Pun that went out by registered mail went to the address found in the form. Whilst I accept that it is usual in these cases to find in the Court Book copies of the returned envelope and the enclosure and that in this case there was none, I am satisfied that on the balance of probabilities I am entitled to infer from the documents that a registered letter was sent to Mr Pun at that address. This is because of the converga document indicating that the letter was sent to him in Ultimo. It is most unlikely that any other address than the one in Ultimo he provided would have been used. I am also satisfied that I may infer that it was the decision letter that was placed in the envelope because of the registered post sticker that was placed upon the copy of the decision letter found at [CB 21]. In the light of this finding it would appear that sub-s.4 was complied with.
  3. The applicant continues his argument with the submission that registered post does not fall within the definition of prepaid or other prepaid means. The applicant accepts that I am bound by the decisions of the Federal Court in Minister for Immigration & Anor v Singh [2000] FCA 377 and Xie v Minister for Immigration & Anor [2005] FCAFC 172 and thus so far as this court is concerned sub-s.4(b) has been complied with. The substantive argument is around sub-s.4(c)(i) and (ii).
  4. In considering whether the provisions of these sub-sections are answered by the form it is accepted by both parties that the form must be looked at as a whole[3] and this is what I shall attempt to do. The first point I would make is that I cannot see that there is anything in the form that could be described as “a last address for service”. This phrase is descriptive of an event which has particular legal connotations. In the Oxford Dictionary of Law 2002 the phrase is defined:

In the Acts Interpretation Act 1901 s.28A there is reference to service of documents which states at sub-paragraph 1:

“Service of documents

This phraseology would appear to broaden the concept in a way which includes giving or sending of documents within the concept of service. But given that s.494B(4)(c) draws a distinction between an address for service and an address for the purposes of receiving documents I would tend to the view that the former should be separately referred to in any form and was not so referred to in this form. I am of the view that the decision letter was not sent to the applicant’s “last address for service”. On the other hand I believe, subject to what is said below concerning the email address, that the heading “Contact details” and the request for a postal address constitutes a request for a residential address to be provided to the Minister by the person completing the form for the purposes of receiving documents. This is because there is no other purpose in providing a postal address when an applicant has already given a residential address. The way in which the form is written clearly indicates that it expects an applicant to tell the Minister of any post office box or other place at which letters can be sent. As the applicant admits that he did not tell the department of his change of address then the address contained in the first part of the contact details section of the form falls within the definition contained in s.494B(4)(c)(ii).

  1. The next section of the form is headed “Communicating with you”. The applicant argues that this part of the form constitutes a representation by the department that if the applicant agrees to the request fax or email will be the only method of communication. He submits that agreement by the applicant to the request of the department will supersede the provision by the applicant of a postal address. The respondent argues that at best the email address provided constitutes an alternative method by which communication can occur as permitted by s.494B(5).
  2. It can be seen that the manner in which the form is set out (first the postal address, then the email address) mirrors the manner in which the sub-sections of the Act extracted are set out. I am of the view that the use of the words in the Act “another method” indicates alternatives which are not exclusive.[4]
  3. There are two cases in which an applicant who completed, as this applicant did, the communication by email part of the form and argued that a notification by mail did not constitute sending for the purposes of s.494B. In Maroun[5] the court noted at [13]:

Her Honour opined:

“[32] The appellant submitted that s 494B(4) did not apply as the appellant did not provide his residential address in Australia for the purposes of receiving documents as required by s 494B(c)(ii) of the Migration Act. The only address the appellant gave for that purpose was his email address as referred to in s 494B(5) but the notice was not sent to his email address. The words “for the purposes of receiving documents” are words of limitation. They can be contrasted with the more general description in ss 379A(4)(c) and 441A(4)(c) (which refer to the address “provided...in connection with the review”). By analogy to Chand v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 140; [2000] FCA 1743 at [14]- [17], the appellant elected to receive correspondence at his email address. Further, the residential address in Australia was not the appellant’s last residential address as he also gave an address in Lebanon whereas the requirement for a last address connotes a single address.
[33] I do not accept these submissions. The appellant provided his residential address in Australia. He did so in a form which asked for an address for correspondence but which the appellant chose not to provide. He agreed to receive documents by email on a form which told him that if his visa application was refused notice of that refusal would be given by mail. That can be understood only as the Minister advising the appellant that despite his provision of an email address any notice of refusal would be to a postal address as provided and not to an email address. In the context of the form as a whole the appellant must be taken to have provided his residential address as his address for the purpose of, at the least, receiving any notice of refusal of the appellant’s visa application.
[34] Chand v Minister for Immigration and Multicultural Affairs turned on its own facts and is not authority to the contrary. As the Minister submitted, choice of method was for the Minister to decide.
[35] On the basis of the form as lodged the appellant had provided his residential address as an address for the purpose of receiving documents. The Federal Magistrate was correct in so finding.”
  1. In Haque v Minister for Immigration & Anor [6] Gilmour J dealt with a similar form to that considered by Jagot J in Maroun:

And then found at:

[64]: The appellant’s consent to the receipt of communications by email did not oblige the first respondent to communicate with him by that means. An email address does not constitute an “address” for the purposes of s 494B(4)(c)(i) of the Act. It is but one of the several methods by which the first respondent may give a document to a person and is expressly provided for in this respect under s 494B(5) of the Act. It was open to the first respondent to use any one of the methods provided for under s 494B, even to have done so by email despite the content of the note to which I have referred. Whilst an email address was provided by the appellant to receive correspondence, there is no requirement for the Tribunal to send communication electronically: see Maroun v Minister for Immigration [2009] FMCA 535; Milon v Minister for Immigration [2009] FMCA 85.
  1. The forms considered in Haque and Maroun were different from the current form in one very important respect. In both those forms there was found printed the following:

That note clearly avoids any argument that the provision of the email address supersedes the provision of the postal address. The matter is finely balanced but whilst Jagot restricts her comments to the particular form with which she was dealing it seems to me that Gilmour J in Haque was providing a wider view. He appears to be saying that the Minister’s right to utilise any of the alternatives contained in s.494B is unrestricted. Whilst the extracted decision in Haque was later the subject of two further decisions by his Honour he did not recant the views expressed in the first decision. Even if obiter they appear to me to constitute a highly persuasive argument.

  1. I can quite understand the plaint of the applicant that he was misled particularly after he had received correspondence by email from the department. But having made the finding that all the provisions of s.494B(4) were complied with and recalling the applicant’s undertaking to inform the department of any change of address and his failure to do so I can only say that he bears much responsibility for the fact that the decision record did not reach him until 8 July 2010.
  2. I am not persuaded that the Tribunal fell into jurisdictional error when it concluded that it had no jurisdiction to review the delegate’s decision. I believe that the department was entitled to utilise the method of communication with the applicant, permitted a s.494B(4) and Regulation 2.16 and that it did so. The application is dismissed. The Applicant shall pay the First Respondent’s costs which I assess in the sum of $5,800.00.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM


Date: 11 February 2011

[1] See SZOBI v Minister for Immigration (No 2) 2010 FCAFC 151 at [16] where it appears accepted that s.494B is an exhaustive statement of the steps required to give notice of a document.
[2] There is no date on the application [CB 1-6] but the refusal letter [CB 21] refers to the 10 March 2010 date in the first line.
[3] Maroun v Minister for Immigration & Anor [2009] FCA 1284 at [33]
[4] Maroun v Minister for Immigration & Anor [2009] FCA 1284 at [34]
[5] Supra
[6] Haque v Minister for Immigration & Anor [2010] FCA 346

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