Tran and Minister for Immigration and Citizenship [2011] AATA 21 (21 January 2011)

Last Updated: 24 January 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 21

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/4986

GENERAL ADMINISTRATIVE DIVISION )

Re Phong Hoang Tran

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date 21 January 2011

Place Sydney

Decision The Tribunal has no jurisdiction to hear and determine Mr Tran’s application.

.....................[sgd]...............
Mr R P Handley
Deputy President

CATCHWORDS

IMMIGRATION – visa cancellation - character grounds – notification – delay - jurisdiction to review decision – nine-day time limit - applicant not notified in the prescribed manner – no jurisdiction to hear and determine application for review

RELEVANT LEGISLATION

Migration Act 1958 (Cth): ss 500, 501TheAct">501, 501G

Migration Regulations 1994: Reg 2.55

Acts Interpretation Act 1901: s 36(2)

CITATIONS

Minister for Immigration v SZMTR (2009) 180 FCR 586; [2009] FCAFC 186

Pomare v Minister for Immigration and Citizenship (2008) 167 FCR 494, (2008) 47 AAR 341, [2008] FCA 458, [2008] ALMD 5217

Buck v Comcare (1996) 66 FCR 359; (1996) 41 ALD 281; (1996) 137 ALR 335

R v Cain [1985] 1 AC 46

Nguyen v Minister for Immigration and Ethnic Affairs [1996] FCA 1664; (1996) 68 FCR 437; (1996) 149 ALR 119

Chan Te Srey v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 308; [2003] FCA 1292

OTHER AUTHORITIES

Department of Immigration and Citizenship Procedures Advice Manual 3, 1 July 2010

REASONS FOR DECISION

21 January 2011

Mr R P Handley, Deputy President

1. Mr Tran has applied to the Tribunal for the review of a decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to cancel Mr Tran’s visa on the ground that he does not pass the character test.
2. This statement of reasons is about the preliminary issue of whether the Tribunal has jurisdiction to hear and determine the application for review.

BACKGROUND

3. Mr Tran was born in Vietnam in November 1976 and is a Vietnamese citizen. He first arrived in Australia on 25 May 1992, aged 15, sponsored by his mother. Since then, he has returned to Vietnam on two occasions, most recently for about a month in December 2007, returning on 9 January 2008 as the holder of a Class BB, Subclass 155, Five Year Resident Return visa.
4. Mr Tran has a criminal history dating from 1995, including convictions for possession of a prohibited drug, supply of a prohibited drug, goods in custody, stealing, shoplifting, larceny and assault. The longest prison sentence imposed (on 4 June 2010) was one of 15 months for “contravene prohibition/restriction in AVO (DV)”. The non-parole period in respect of this and other offences expired on 24 November 2010 and Mr Tran is currently being held in immigration detention at Villawood.
5. On 10 October 2008, the Department of Immigration and Citizenship (the Department) sent Mr Tran a formal counselling letter notifying him that any further convictions could lead to consideration being given to the cancellation of his visa. Mr Tran acknowledged receipt of this letter on 15 October 2008. Since then, he has committed further offences.
6. On 22 July 2010, the Department notified Mr Tran that cancellation of his visa was to be considered and inviting him to make submissions. Mr Tran responded by letter dated 15 August 2010. He was interviewed by a departmental officer on 6 September 2010. On 18 October 2010, a delegate of the Minister decided to cancel Mr Tran’s visa on the ground that he was not satisfied that Mr Tran passed the ‘character test’. By letter dated 20 October 2010, the Department sought to notify Mr Tran of this decision and the letter was sent to Mr Tran by registered post on that day addressed to him at Bathurst Correctional Centre, PO Box 166, Bathurst NSW 2795.
7. Mr Tran was, at that time, serving a prison sentence at Bathurst Correctional Centre. On 2 November 2010, he was moved to Parklea Correctional Centre. Mr Tran’s evidence is that he did not receive notification of the cancellation of his visa until 12 November 2010, by which time he was at Parklea Correctional Centre. Mr Tran’s application to the Tribunal is dated 14 November 2010 and was lodged on 16 November 2010.
8. The Minister submits that pursuant to the provisions of the Migration Act 1958 (the Act) and the Migration Regulations 1994 (the Regulations), Mr Tran is deemed to have received notification of the decision on 29 October 2010.
9. Submissions made to the Tribunal on behalf of Mr Tran by David Prince, solicitor, pursuant to the Tribunal’s duty solicitor scheme for migration matters, question whether the Department complied with the prescribed notification requirements. If the Department failed to do so, the deemed notification provisions do not apply and there will have been no valid notification of the cancellation of Mr Tran’s visa. If this is correct, the review provisions of the Act have not yet been enlivened and the Tribunal does not have jurisdiction in this matter.
10. The Minister also claims that the Tribunal is without jurisdiction in this matter although on different grounds. It submits that because Mr Tran’s application - lodged with the Tribunal on 16 November 2010 - was not lodged with the Tribunal within nine days after the day on which Mr Tran is taken to have received notification of the cancellation (on 29 October 2010), the Tribunal has no jurisdiction to review the decision.

RELEVANT LAW AND POLICY

11. Section 501(2) of the Act provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test” and “the person does not satisfy the Minister that the person passes the character test”. Section 501(6) provides that a person does not pass the character test if the person has a substantial criminal record. ‘Substantial criminal record’ is defined in s 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more.
12. Section 501G(1) requires the Minister to give written notice of a decision to cancel a visa setting out the decision, reasons for the decision and the person’s right to have the decision reviewed by the Tribunal. Section 501G(2) requires that the notice must be accompanied by two copies of every relevant document in the delegate’s possession or under the delegate’s control. Such a notice “must be given in the prescribed manner” (s 501G(3)). The prescribed manner is set out in the Regulations. Regulation 2.55(4) provides relevantly that where a person has held a visa for at least one year when the document is given, the Department “must try to find the person” and “the Minister must give the document in one of the ways mentioned in subregulation (3)”. Subregulation (3) specifies the ways in which the Minister must give the document:

(a) by handing it to the person personally,
(b) by handing it to another person who:
(i) is at the person’s last residential or business address known to the Minister; and
(ii) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(iii) appears to be at least 16 years of age;
(c) by dating it, and then dispatching it:
(i) within 3 working days (in place of dispatch) of the date of the document; and
(ii) by prepaid post or other prepaid means;
to the person’s last residential address, business address or post box address known to the Minister;
(d) by transmitting the document by:
(i) fax; or
(ii) e-mail; or
(ii) other electronic means;
to the last fax number, e-mail address or other electronic address known to the Minister.

13. In the case of a document given to a person pursuant to subregulation (3)(c), subregulation 2.55(7) states:

(7) If the Minister gives a document to a person by dispatching it 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.

14. The Department’s Procedures Advice Manual (PAM) 3, at [35.19], provides a commentary on identifying the last address known to the Minister for the purposes of regulation 2.55. Of relevance is the following:

Officers must take all available steps to determine the last address known to the Minister ...
Officers must, as a matter of law (reg. 2.55(4)) try to find the client if:
• the visa has been held for at least a year; and
• the documents given are documents referred to in s501G(3), that is, documents relating to a decision under s501 (s501(1), s501(2), s501A(2), s501B or s501F).
Under policy, enquiries to find the client should be conducted in the following circumstances:
• the address was not provided to the department recently. Whether an address is recent will depend on the circumstances, including the visa period.
• the notification is returned undelivered to the department.
Officers should contact the following third parties, if appropriate, and when doing so must bear in mind privacy issues:
• Medicare
• Centrelink
• State/Territory police and/or correction facilities
• private sources, such as family members or utility companies.
Officers must, as a matter of procedure, record in the relevant departmental system (for example, ICSE/IRIS) their attempts to identify the last address known to the Minister.

15. Section 500(1) provides for applications to be made to the Tribunal for the review of decisions such as a decision to cancel a visa made under s 501. Relevantly, s 500(6B) states:

(6B)  If a decision under section 501 of this Act 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.

16. Subsections 29(7) to (10) of the Administrative Appeals Tribunal Act 1975 provide for the Tribunal to extend the time for lodging applications for review. Section 500(6B) of the Act precludes these subsections from applying in the case of relevant decisions under s 501 with the result that the Tribunal has no power to grant an extension of time for the lodging of such an application.

SUBMISSIONS

17. Ms Stone, for the Minister, contended that the notification letter dated 20 October 2010 complied with legislative requirements and submitted that, pursuant to regulation 2.55(7), Mr Tran is deemed to have received notification of the cancellation of his visa on 29 October 2010 (seven working days after the date of the document). The nine-day limit for Mr Tran to lodge his application with the Tribunal therefore expired on 7 November 2010. However, as 7 November 2010 was a Sunday, the application had to be lodged by the following day - 8 November 2010 (Acts Interpretation Act 1901 s 36(2)). Mr Tran’s application was not lodged until 16 November 2010. Ms Stone submitted that the Tribunal is therefore without jurisdiction to determine the matter, there being no power for the Tribunal to extend the time for the lodging of applications.
18. Mr Tran said he did not receive notification of the decision to cancel his visa until 12 November 2010 when he was at Parklea Correctional Centre. He could not understand why the Department said he had not applied to the Tribunal for a review within the prescribed period of nine days, when he had sent a letter to the Tribunal applying for a review on 14 November 2010 (which was received by the Tribunal on 16 November 2010).
19. In his letter to the Tribunal dated 22 December 2010 on behalf of Mr Tran, Mr Prince raised three issues. First, he questioned whether there is sufficient evidence to establish that the notification requirements were complied with, including whether two copies of the relevant documents were provided in accordance with s 501G(2). The second issue is whether the Department took appropriate steps “to try and find the person” as required by regulation 2.55(4). Mr Prince referred to the relevant commentary in PAM 3 quoted above. On the basis of the evidence available to him at the time of writing the letter, Mr Prince questioned whether appropriate steps had been taken.
20. The third issue is whether sending the notice of cancellation to Bathurst Correctional Centre’s post office box constituted compliance with the Minister’s obligation to send the letter to the applicant’s “last residential address, business address or post box known to the Minister” (regulation 2.55(3)(c)). Mr Prince argued that because the post office box was not in the care, custody and control of Mr Tran, the situation was radically different to one in which mail is sent to a person’s home, business address or post office box over which they would be presumed to have control and where they would be able to access mail freely at that location. Thus, Mr Prince submitted that sending the notice to the Correctional Centre’s post office box did not comply with regulation 2.55(3)(c).

DISCUSSION

21. As stated above, the question to be resolved is whether the Tribunal has jurisdiction to hear and determine the application for review. On the one hand, Mr Prince, on behalf of Mr Tran, submitted that the Minister failed to comply with the prescribed notification requirements so that the review provisions of the Act have not yet been enlivened. On the other hand, the Minister contends that Mr Tran failed to lodge his application for review with the Tribunal within the prescribed time.

Were s 501G(1) and (2) complied with?

22. Ms Joanne Jennings, an officer employed in the Department’s National Character Consideration Centre in Melbourne, provided an affidavit dated 7 January 2011 and gave evidence by telephone at the hearing. She stated that the decision to cancel Mr Tran’s visa was made by a delegate of the Minister on 18 October 2010. On 20 October 2010, Ms Jennings prepared a letter notifying Mr Tran of this decision which was dispatched by registered post on that day. A copy of the Department’s mailing service registered post log for that day confirms this. Ms Jennings said she was acting on behalf of the officer who had carriage of Mr Tran’s matter, Tim Martin, who was away on leave.
23. Ms Jennings said that enclosed with the notice of visa cancellation were two copies of the ‘Issues Paper’ (prepared for consideration by the delegate in making his decision), two copies of the delegate’s statement of reasons for his decision, and two copies of the attachments to the Issues Paper, including all relevant documents.
24. I note Mr Tran’s evidence that when he received notification of the cancellation, he received a large bundle of documents from the Department. Further, the Tribunal appears to have received by fax from Mr Tran a copy of the notice, issues paper, statement of reasons and other relevant documents. I am satisfied from this evidence that the notification requirements prescribed by s 501G(1) and (2) appear to have been complied with.

Did the Department take appropriate steps to try and find Mr Tran?

25. The second issue is whether the Department took appropriate steps “to try and find the person” as required by regulation 2.55(4). While Ms Jennings said she had no specific recollection of Mr Tran’s matter, her usual practice is to call the relevant correctional centre before sending out the letter of notification in order to confirm the person’s location. This is because the Department recognises that it is quite common for a prison inmate to be moved between different correctional centres. Ms Jennings said she would not usually make a specific note of the telephone call but, after telephoning the correctional centre, her usual practice is to follow this up with a fax.
26. In Mr Tran’s case, Ms Jennings sent a fax to “The Officer in Charge, Prison Records, Bathurst Correctional Centre” on 20 October 2010. A copy of this fax was produced at the Tribunal’s request. The fax refers to Mr Tran, his date of birth, his correctional centre identification number and his country of citizenship, and states:

A delegate of the Minister for Immigration and Citizenship cancelled the visa held by Mr Tran pursuant to s.510 of the Migration Act on 18 October 2010. Mr Tran is to be informed of the decision by a separate written notification. Please note: it is important for legal reasons that the full documentation sent to Mr Tran is handed to him as soon as possible.
DIAC will make arrangements in respect of Mr Tran following his release from criminal custody, including immigration detention pending his removal from Australia, if necessary.
This letter is for your information and no acknowledgment is required.

27. I accept that Mr Tran was at Bathurst Correctional Centre on 20 October 2010 as stated in a copy of the NSW Department of Corrective Services’ computerised records provided to the Tribunal, and Mr Tran confirmed this in oral evidence. The records for Mr Tran indicate that he was moved from Bathurst Correctional Centre to Parklea Correctional Centre on 2 November 2010.
28. Having heard Ms Jennings’ evidence and seen a copy of her fax dated 20 October 2010 and the NSW Department of Corrective Services’ computerised records, I am satisfied that appropriate steps were taken by Ms Jennings “to try to find” Mr Tran, as required by regulation 2.55(4), by confirming at which Correctional Centre Mr Tran was being held before sending him the notice of cancellation.

Was the notice of cancellation given in accordance with the Regulations?

29. Mr Tran told me that on 1 November 2010, the day before he was transferred to Parklea Correctional Centre, he was told by a ‘wing officer’ for his wing of Bathurst Correctional Centre that he had to go to Parklea for an interview with the Department of Immigration. He was reluctant to do so because he had hoped to be able to complete his sentence at Bathurst. Mr Tran said he had no idea at the time that his visa had been cancelled. I asked Mr Tran about receiving mail at Bathurst Correctional Centre. He said one of the wing officers would deliver mail addressed to inmates in the particular wing. Sometimes, Mr Tran had to wait two or three weeks to receive mail from his family. He said on one occasion when his family sent him a money order, he had to wait one or two weeks before it was given to him.
30. Mr Tran said he had spoken with a departmental officer, Tim Martin, three or four weeks earlier about his situation, and hoped for a favourable result such as a departmental warning. The Tribunal has been provided with a copy of the record of interview conducted by Mr Martin with Mr Tran by telephone on 6 September 2010. Mr Tran acknowledged that he had received a copy of the record of interview which was faxed by Mr Martin to the ‘General Manager, Bathurst Correctional Centre’ on 7 September 2010 with a request that the General Manager deliver this to Mr Tran, invite Mr Tran to make any amendments or additions he wished to make, and sign and return the acknowledgement form. Mr Tran signed the acknowledgement on 8 September 2010 and it appears to have been faxed to the Department on that day.
31. Mr Tran said that when he received the notice of cancellation at Parklea, “I freaked out”. He was aware from the notice that he had to make an application to the Tribunal for a review within nine days of receiving notification. He tried to get help from both the chaplain and the welfare officer but this required making an appointment two days later. He asked a prison officer for permission to make a phone call about the notice of cancellation, intending to phone the Tribunal about obtaining the necessary form to make an application for review. However, the prison officer interpreted his request as being to phone Mr Martin. Mr Tran therefore spoke to Mr Martin who advised him to contact the Tribunal to obtain the required form. In the end, Mr Tran said a friend helped him write a handwritten letter to the Tribunal dated 14 November 2010 (received by the Tribunal on 16 November 2010 and treated as the application for review).
32. I asked Mr Tran about the handwritten notation on the letter of cancellation dated 20 October 2010, a copy of which Mr Tran sent to the Tribunal. This notes the name ‘Tim Martin’ and Mr Martin’s telephone number, and against the Tribunal’s telephone number, “he did not receive the notification until 12/11/10”. Mr Tran said the notation was not in his handwriting. However, he said the notation might have made by the prison officer whom Mr Tran asked for assistance in making a telephone call and whom Mr Tran had told about not receiving notification until 12 November 2010.
33. I accept Mr Tran’s evidence that he did not receive the notice until 12 November 2010 when he was at Parklea Correctional Centre and that he took immediate steps to lodge an application for review of this decision with the Tribunal. This forms the background to the third issue raised by Mr Prince, whether sending the notice of cancellation to Bathurst Correctional Centre’s post office box constituted compliance with the Minister’s obligation to send the letter to the applicant’s “last residential address, business address or post box known to the Minister” (regulation 2.55(3)(c)). Ms Jennings said the notice of cancellation was sent to Mr Tran’s last address known to the Minister which was Bathurst Correctional Centre, PO Box 166 Bathurst, NSW 2795.
34. I asked Ms Jennings about when the Department arranges for notices of cancellation to be hand-delivered to recipients, noting from my experience in other matters that this appears to be not uncommon with decisions involving the cancellation of a visa. Ms Jennings told me that notices are only usually hand-delivered when the cancellation takes place shortly before the expiry of a person’s sentence. In such a situation, the Department will arrange for an interim notice to be sent to the person advising that a formal notice will follow. The formal notice is then hand-delivered to the person by a departmental officer after their release from custody when the person is in immigration detention.
35. In her submissions to the Tribunal, Ms Stone noted that Mr Tran was located at Bathurst Correctional Centre at the time the notice of cancellation was sent. This was his last known address at that time. Ms Stone referred to the Personal Details form completed by Mr Tran on 8 August 2010. In this form, in an answer to the question “What is your current residential address? (if in custody, please state the name of the prison)”, Mr Tran gave his address as being in Cabramatta. In a letter to the Department dated 15 August 2010 (which appears to be a response to the Department’s letter dated 22 July 2010 inviting Mr Tran to comment on the consideration then being given to the cancellation of his visa), Mr Tran stated “I am currently residing at Bathurst Correctional Center” and referred to the same Cabramatta address as being that of his uncle. Ms Stone also noted that the notice of cancellation dated 20 October 2010 addressed to Mr Tran at Bathurst Correctional Centre bears Mr Tran’s prison inmate identification number.
36. Ms Stone said there is no case law dealing directly with the issue of notification in prison. She referred to the Full Federal Court decision in Minister for Immigration v SZMTR [2009] FCAFC 186; (2009) 180 FCR 586 (SZMTR), where the name of the visa applicant to whom a notice was addressed in a matter involving an application for a protection visa, was not that nominated by the visa applicant, but was another name the visa applicant had used. The notice was, however, sent to the residential address nominated by the visa applicant and received by her soon after it was posted. The Court found, at 596, that the Minister sufficiently addressed the envelope for the purposes of the legislative requirements of the Act “to ensure it would come to the attention of the intended recipient, namely the person who had applied for the visa. And, it did.”
37. A decision referred to in the decision in SZMTR is that of Pomare v Minister for Immigration and Citizenship [2008] FCA 458; (2008) 167 FCR 494 (Pomare). In that case, Lindgren J found a notice that referred only to the Tribunal’s post office box as the place where an application for review of a decision could be made, did not comply with the legislative requirement that the notice should state the address (of the registry office or offices) “where the application for review could be made”.
38. In the present case, the facts are materially different. The notice of cancellation was sent to Mr Tran at Bathurst Correctional Centre where he was then in prison. Through, what I accept, was no fault of his, he did not receive the notice of cancellation until after the date when the Minister contends his right to apply for a review expired. The Minister submits Mr Tran is deemed to have received the notification on 29 October 2010 and that the period for the lodging of his application for review by the Tribunal expired on 8 November 2010. The effect of the Minister’s submission, if accepted, is that Mr Tran is deprived of his right to seek a review by the Tribunal though no fault of his own. It is clear from the evidence that when Mr Tran did receive the notice of cancellation on 12 November 2010, he acted quickly to ensure, he believed, that his application for review was made within the prescribed time limit.
39. As stated above in relation to the third issue, Mr Prince submitted that notifying Mr Tran by sending the notice of cancellation to him at the Bathurst Correctional Centre’s post office box did not comply with regulation 2.55(3)(c). Mr Prince described Mr Tran’s situation as one radically different to one in which mail is sent to a person’s home, business address or post office box, over which the person could reasonably be presumed to have control and where they would be able to access mail freely at that location.
40. Section 501G(1) of the Act requires the Minister to “give the person a written notice” setting out the decision, reasons for decision etc. Section 501G(3) states that the notice “must be given in the prescribed manner”. The word ‘prescribed’ is defined in s 5(1) as meaning “prescribed by the regulations”. Regulation 2.55(1)(b) states that regulation 2.55 applies to the giving of a document under s 501G(3). Regulation 2.55(3) provides for the Minister to give the document in one of four ways:

(a) by handing it to the person personally,
(b) by handing it to another person who:
(i) is at the person’s last residential or business address known to the Minister; and
(ii) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(iii) appears to be at least 16 years of age;
(c) by dating it, and then dispatching it:
(i) within 3 working days (in place of dispatch) of the date of the document; and
(ii) by prepaid post or other prepaid means;
to the person’s last residential address, business address or post box address known to the Minister;
(d) by transmitting the document by:
(i) fax; or
(ii) e-mail; or
(ii) other electronic means;
to the last fax number, e-mail address or other electronic address known to the Minister.

41. Of relevance in Mr Tran’s case is subregulation (3)(c). The question for the Tribunal to determine is whether Bathurst Correctional Centre’s post office box constitutes Mr Tran’s last post box address known to the Minister. In my view, it is clearly not Mr Tran’s post box address. It is that of Bathurst Correctional Centre. Most particularly, it is not a post box over which Mr Tran has any control or which he can freely access. He is entirely dependent upon others to deliver mail to him care of Bathurst Correctional Centre.
42. The decision to cancel a person’s visa is without doubt a very important one. The effect is to terminate the permission granted to the person to be present in Australia. In Mr Tran’s case, the effect is that he will be required to leave Australia where he has lived for more than 18 years and where he has family and friends. Whether or not there are good grounds for cancelling Mr Tran’s visa and requiring him to leave Australia is not the issue in this preliminary decision. The issue is whether he is deprived of his statutory right of review by reason of the deemed notice provisions in regulation 2.55 relied upon by the Minister.
43. The courts have acknowledged that where statutory rights of sufficient significance to the individual are at stake and there is doubt as to the meaning of relevant legislative provisions, “the courts should favour an interpretation that safeguards the individual”: Buck v Comcare (1996) 66 FCR 359, at 364, per Finn J; see also R v Cain [1985] 1 AC 46, at 5-6, per Lord Scarman. Thus, in Pomare, Lindgren J adopted a narrow approach to the interpretation of what information was required to be provided to a person to enable them to exercise their statutory right of review by the Tribunal. The failure to provide an address of the registry office where an application for review could be received by the Tribunal invalidated the notice and had the effect that the nine-day time limit within which an application for review was required to be lodged with the Tribunal had not commenced to run. Similarly, in Nguyen v Minister for Immigration and Ethnic Affairs [1996] FCA 1664; (1996) 68 FCR 437, at 444, Moore J adopted an approach involving “a construction beneficial to the person whose rights depend upon the giving of the notice”.
44. As stated above, the facts of Mr Tran’s case are materially different from those of SZMTR where the visa applicant actually received the notice. The Full Federal Court in that case referred to the decision in Pomare but distinguished it, noting at 598, that in SZMTR “the brochure contained all the relevant information about the time in which the first respondent [the visa applicant] had to make the application for review”. Moreover, the visa applicant was not a person in custody or immigration detention and there was no suggestion that she was misled by the notice. The Court also recognised that “The scheme of the Act and regulations places the risk of postal delays on the applicant for review”.
45. In the present matter, the deeming provisions of regulation 2.55 also appear to take account of the risk of postal delays and place the risk of such delays on the review applicant. Regulation 2.55(3)(c)(i) requires, relevantly, the notice to be dispatched “within 3 working days (in place of dispatch) of the date of the document”. Regulation 2.55(7) deems the person to have received the notice, if “dispatched from a place in Australia to an address in Australia – 7 working days (in place of that address) after the date of the document”.
46. However, Mr Tran’s matter is not about postal delays. It is about a person in prison who is without any effective control over gaining access to his mail once delivered to the post office box of the correctional centre where he was being held. As noted above, in Mr Tran’s case the effect of the Minister’s submissions as to the application of regulation 2.55, if accepted, would be that Mr Tran would be deprived of a statutory right of review in circumstances over which he had no control. In my view, this is not the correct interpretation of the way in which regulation 2.55 applies.
47. Because an important statutory right is at stake, the regulation should be strictly construed. In Mr Tran’s case, the notice of cancellation was not ‘given’ to Mr Tran as required by s 501G(1) of the Act. It was not dispatched to Mr Tran’s last post box address known to the Minister. It was dispatched to him care of the post office box of Bathurst Correctional Centre, so that delivery of the notice to him was dependent on officers employed by the NSW Department of Corrective Services. The intervention/involvement of such a third party in the delivery of the notice is not a contingency recognised in the Regulations. For these reasons, I am not satisfied the notification complied with regulation 2.55(3)(c).
48. In Pomare, Lindgren J followed the decision in Chan Te Srey v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1292 and found that as the notification requirements of the Act had not been complied with, there had been no notification. Similarly in Mr Tran’s case, because the notification requirements in regulation 2.55(3) were not, in my view, complied with, there was no notification and the effect of this is that the nine-day period for Mr Tran to lodge his application for review with the Tribunal has not yet commenced.
49. Since the Tribunal’s jurisdiction is enlivened by a person lodging a valid application for review and no such application has been lodged in this matter, the Tribunal is without jurisdiction.

DECISION

50. The Tribunal has no jurisdiction to hear and determine Mr Tran’s application.

I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President.

Signed: .............[sgd]

A Veness, Associate

Date of Hearing: 17 January 2011

Date of Decision: 21 January 2011

Applicant representative: Self-represented

Respondent representative: Ms M Stone, DLA Phillips Fox