Time Limit Issues

 
 

Before tackling time limits it is essential to understand that the provisions of the Migration Act determining when time limits begin to run depend upon the way the document is delivered to a party. The following provisions of the Migration Act must be studied carefully to understand where all this fits in.  The writer has come across many injustices over the years of documents going astray but Immigration applies these time rules strictly irrespective of the justice or common sense.  By law these provisions are deeming provisions and it is largely irrelevant that a document was not in fact delivered in actual time or at all.

 

Section 494A      Giving documents by Minister[1] where no requirement to do so by section 494B method

[494A] (1)      If:

(a)      a provision of this Act or the regulations requires or permits the Minister to give a document to a person; and

(b)      the provision does not state that the document must be given:

uu(i)      by one of the methods specified in s 494B; or

(ii)      by a method prescribed for the purposes of giving documents to a person in immigration detention;

the Minister may give the document to the person by any method that he or she considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section).

Note:      S 494D deals with giving documents to a person’s authorised recipient.

 

[494A] (2)      If a person is a minor, the Minister may give a document to an individual who is at least 18 years of age if the Minister reasonably believes that:

(a)      the individual has day-to-day care and responsibility for the minor; or

(b)      the individual works in or for an organisation that has day-to-day care and responsibility for the minor and the individual’s duties, whether alone or jointly with another person, involve care and responsibility for the minor.

[494A] (3)      However, subsection h (2) does not apply if s 52(3C) (which relates to giving notifications in the case of combined applications) applies in relation to the minor.

 

[494A] (4)      If the Minister gives a document to an individual, as mentioned in subsection (2), the Minister is taken to have given the document to the minor. However, this does not prevent the Minister giving the minor a copy of the document.

 

Section 494B      Methods by which Minister gives documents to a person

Coverage of section

[494B] (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.

 

[494B] (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

(ii)      works in or for an organisation that has day-to-day care and responsibility for the minor and whose duties, whether alone or jointly with another person, involve care and responsibility for the minor.

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.

[494B] (1B)      However, subsection (1A) does not apply if subsection 52(3C) (which relates to giving notifications in the case of combined applications) applies in relation to the minor.

 

Complex as those provisions above may look, in summary it says that documents relevant to a minor can be given to the carer using the same rules in relation to the carer as if the carer was the person to receive the document. 

 

Note that s 5 of the Migration Act defines ‘working day’ :

working day, in relation to a place, means any day that is not a Saturday, a Sunday or a public holiday in that place.

 

Thus a day when the public service is shut as an extra holiday like during the Christmas – New Year period is not a public holiday and therefore is a ‘working day’ even though no public servant is at work.

 

Giving by hand

[494B] (2)      One method consists of the Minister (including by way of an authorised officer) handing the document to the recipient.

 

Giving by hand

[494C] (2) If the Minister gives a document to a person by the method in s 494B(2)… the person is taken to have received the document when it is handed to the person.

Handing to a person at last residential or business address

[494B] (3) Another method consists of the Minister…handing the document to another person who:

(a) is at the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; and

(b)      appears to live there (in the case of a residential address) or work there (in the case of a business address); and

(c)      appears to be at least 16 years of age.

[494C] (2)      If the Minister gives a document to a person by the method in s 494B(2)… the person is taken to have received the document when it is handed to the person.

[writer: ie not when the affected actually gets it but when it is handed to this other person!]

 

Dispatch by prepaid post or by other prepaid means

[494B] (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; or

(iii)      if the recipient is a minor — the last address for a carer of the minor that is known by the Minister.

[494C] (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.

 

Transmission by fax, email or other electronic means[2] 

[494B] (5)      Another method consists of the Minister transmitting the document by:

(a)      fax; or

(b)     email; or

(c)      other electronic means;

to:

(d)      the last fax number, email address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents; or

(e)      if the recipient is a minor — the last fax number, email address or other electronic address, as the case may be, for a carer of the minor that is known by the Minister.

When the Minister hands a document by way of an authorised officer

[494B] (6)      For the purposes of sections 494C and 494D, a reference in those sections to an act of the Minister includes, if the act is of a kind referred to in subsection (2) or (3) of this section, a reference to an act of the Minister by way of an authorised officer.

[494C] (5)      If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.

 

 

Documents given to a carer

 

[494B] (7)      If the Minister gives a document to a carer of a minor, the Minister is taken to have given the document to the minor. However, this does not prevent the Minister giving the minor a copy of the document.

 

Document not given effectively

 

[494C] (7)      If:

(a)      the Minister purports to give a document to a person in accordance with a method specified in section 494B (including in a case covered by section 494A) but makes an error in doing so; and

(b)      the person nonetheless receives the document or a copy of it;

then the person is taken to have received the document at the times mentioned in this section as if the Minister had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.

 

Here one cannot rely on an error on the part of Immigration.  An important practice point is that one should always record on the client file and on the document itself exactly when it was that the document was received.

 

Section 494D      Authorised recipient

 

 [494D] (1)      If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to receive documents in connection with specified matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents in connection with those matters that the Minister would otherwise have given to the first person.

Note:      If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.

[494D] (2)      If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. However, this does not prevent the Minister giving the first person a copy of the document.

 [494D] (3)      Subject to subsection (3A), the first person (but not the authorised recipient) may vary or withdraw the notice under subsection (1) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the first person’s authorised recipient.

 [494D] (3A)    In addition to the first person being able to vary the notice under subsection (1) by varying the address of the authorised recipient, that recipient may also vary that notice by varying that address.

[(4) repealed by Migration Legislation Amendment Act (No. 1) 2014 with effect on and from 25/09/2014 - application see Sch 4 item 17(4)-]

 

An unanswered question here is what if the Minister gives the document to the Migration Agent one day and a week later gives it to the person (the client), does the deadline run from the first date or the second date.  One ought to think that in such a confusing situation, the last date ought to be the effective date.

 

What about the reverse situation, if the client got the document one day and the Migration Agent got it a week later.  Here one assumes that the later deadline would apply because the Minister must give the document to the authorised recipient under s 494D(1).  Of course the essential practice adage is – Always meet the earliest deadline under any interpretation. The writer’s practice is to always meet the deadline a day earlier than the last day. Never take the risk of having a court decide which is the correct date.

 

[494D] (5)      The Minister need not comply with subsection (1) if:

(a)      the authorised recipient is not a registered migration agent (within the meaning of Part 3); and

(b)      the Minister reasonably suspects that the authorised recipient is giving immigration assistance (within the meaning of that Part); and

(c)      the Minister has given the first person a notice, by one of the methods specified in section 494B, stating that he or she does not intend to give the authorised recipient documents as mentioned in subsection (1).

 

Once one has identified the deadline for a review then it should be recorded on the client file and in diaries.

 

Postage Case

 

Of course to gain the benefit of the postage deeming provisions the Department needs to prove that the letter was actually posted within 3 days of the date of the document.

A great example on sloppiness on the part of the Department is Han v Minister for Immigration [2007] FMCA 246 (5 March 2007).  Here the student visa holder maintained at all times that he never received the notice of the visa refusal by post.  He eventually inquired at the Departmental office about the progress of his application and was told it was refused.  An officer at the counter went to a computer, and caused the decision to be printed out again.  He appealed to the MRT but the MRT looked at the computer records and concluded the document was posted some months before and therefore the appeal was out of time.  Judicial review was sought in the Federal Magistrates Court.  Postage was in issue and the Department tried to prove postage by the officer saying she put the letter in an out tray. Here is an affidavit of what she deposed to:

 

a) I would have placed the letter in an envelope.
b) I would have addressed to the envelope to Mr Han at his current address as shown on ICSE, which was 9 Tequila Street, Calamvale, Queensland and stamped the envelope with a "registered mail" wet ink stamp.
c) I would have placed the envelope in the 'mail basket trolley' in our office, where all the outgoing mail for my area is placed.

8. I placed the envelope in the 'mail basket trolley' expecting that the envelope containing the letter would have been posted by the postal administrative staff.

On this evidence the Court said:

Even if I were to accept it, the decision maker's evidence does not establish that the decision letter was dispatched within three days of its date. The highest the evidence reaches is that the decision maker prepared the decision letter for posting and placed it in the 'mail basket trolley'. The first respondent argues that placing the properly addressed envelope containing the decision letter in the mail basket trolley is all that is required for there to be a "dispatching" for the purposes of s.494B(4) of the Act.

True it is that s.494B(4)(b) provides for dispatch by prepaid post or by other prepaid means, but in my view more is required than has been pointed to by the first respondent. Posting is not the only alternative, and one might posit the example of dispatching the decision letter to a visa applicant by courier service. But at the very least, it is necessary for the envelope to pass from the possession of the first respondent (or his authorised officers or employees). Otherwise, (and to carry the first respondent's argument to its logical conclusion) once the decision maker hands the envelope containing the decision letter to another employee or officer of the Department (say, for the purposes of placing it in the mail basket trolley on behalf of the decision of maker) there will have been a "dispatching" of the decision letter. Yet it is conceivable that an envelope containing a decision letter might leave the possession of the first respondent more than three days after the date of the letter, or never.

In my view, it is unnecessary to consider whether I should make my own finding as to whether the decision letter was dispatched by the first respondent within three days of its date, because the evidence proffered by the first respondent would not permit of a positive finding for the Minister.

In the event that I am wrong about that and it is incumbent upon me to make the necessary finding as to the dispatching of the decision letter, I am not satisfied by the evidence that the decision letter was dispatched within three days of the date that it bears. Consequently, I find that the decision letter was not dispatched as prescribed by s.494B(4) and so, the period within which the applicant might have commenced his application for review did not end on 29 July, 2005.

The tribunal found that the applicant received a copy of the decision letter when it was handed to him by an officer of the Department on

2 August, 2005. There is no issue about that. I am satisfied that the period within which the applicant might have commenced his application for review began on that day. His application was filed on the next day. It is, therefore, plainly within time.

 

The Court concluded:

I am satisfied that the tribunal decision carries with it an implicit finding that the decision letter was posted within three days of the date of that letter. The critical findings are those set out in paragraphs 6 and 7 of the decision (I have set them out above). There is an express finding that the letter was posted: "The refusal notification letter was sent to the review applicant’s nominated address for correspondence. As the decision was posted to an address in Australia...".

There was evidence to support that finding. In the bundle of relevant documents filed for use in these proceedings there are a number of copies of the decision letter, each of which bears the date 29 June, 2005. There is no contention that the letter was not dated. Each copy of the decision letter bears the words "BY MAIL" at the top of the letter. The application completed by the applicant notes that he was notified by post of the decision. There was no other evidence before the tribunal, such as a certified mail or other posting receipt for the dispatch of the letter, but given the applicant's admission in the application, no other evidence was probably necessary.

As s.494B(4)(a) makes clear, however, the dispatch of the relevant document must take place within three days of the date of the document. There is no express finding by the tribunal that the decision letter was dispatched within three days of the date expressed on its face. Such a finding is implicit in the tribunal's reasons – that must be so because without such a finding, there can be no finding that the letter was given to the applicant by one of the methods prescribed by s.494B.

 

There was, however, simply no evidence before the tribunal that supports such a finding. The material that was before the tribunal permitted of a finding that the decision letter had been dated (s.494B(4)) and that it had been dispatched by prepaid post (s.494B(4)(b)) to the last address for service provided to the first respondent by the applicant for the purposes of receiving documents (s.494(4)(c)(i)). But there was nothing that would permit of any inference that the dispatch took place within three days of the date of the letter.

 

            [Emphasis added]

Jurisdictional facts

An important practice point here that it permissible to call evidence in court about what are called jurisdiction facts. The High Court in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 re-affirmed that it is the function of the court to determine as a question of fact whether a jurisdictional facts exists or not.  Here is what Gleeson CJ, Gummow, Kirby and Hayne JJ observed in relation to jurisdictional fact issues: at 146

However, where the question is whether the decision-maker has erred as to the jurisdictional facts, as in this case, that question has to be answered by the court in which it is litigated upon the evidence before that court. In this respect, where the issue requires determination of whether jurisdictional facts existed, the task of the court to determine that question is essentially the same whether the relief sought be equitable or, for example, prohibition.

At 148

“Jurisdictional facts”

The term “jurisdictional fact” (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome. Section 35(3) forbids the relevant authority granting a provisional development plan consent to a “non-complying“ development unless, in a case such as the present, the Minister and the Council concur in the granting of the consent. The determination of the question whether Collex proposed a “non-complying” development, which turned upon the application of the criterion of “special industry”, was a condition upon the existence of which there operated the obligation that the Commission not grant consent.
 

At 151

The result is that the Full Court erred in holding that Debelle J was obliged to determine the action before him, not by application of the law to the evidence, but from a standpoint that, whilst the Supreme Court should “reserve the right to itself to inquire into the relevant facts and to decide the jurisdictional facts”, it would defer “in grey areas of uncertainty to the practical judgment of the planning authority” (58) and that what had to be shown was “a serious departure (in planning terms) from the requirements of the Act and Regulations” (59). It should be added that, contrary to the approach taken by the Full Court, in whatever form the proceeding in the Supreme Court had been cast, it would have been necessary for Debelle J to determine the “jurisdictional fact” issue upon the evidence before the Supreme Court. Accordingly, the matter will have to be returned to the Full Court for determination of the outstanding issues on the appeal from Debelle J to that Court.

At 155-6

However, it was the task of Debelle J to determine the question of the jurisdiction of the Commission upon the evidence as to “special industry” before him, as opposed to the probative material which had been before the Commission, and upon his construction of the relevant provision. His Honour did so. If, at the end of the day, Debelle J had been in doubt upon a particular factual matter, it would have been open to his Honour to resolve that doubt by giving weight to any determination upon it by the Commission. We do not read Debelle J's reasons as indicating any doubt apt for resolution in this way.

Per Gaudron J at 157:

Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers (88). It follows that, within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less.

At 158

Where, as here, the legality of an executive or administrative decision or of action taken pursuant to a decision of that kind depends on the existence of a particular fact or factual situation, it is the function of a court, when its jurisdiction is invoked, to determine, for itself, whether the fact or the factual situation does or does not exist. To do less is to abdicate judicial responsibility.

It is a basic proposition in administrative law that an administrative tribunal cannot finally and conclusively determine its own jurisdiction.

As Corporation of the City of Enfield v Development Assessment Commission (unanimously decided) clearly shows, it is the function of the court to determine if the AAT wrongly denied itself jurisdiction by failing to find a jurisdictional fact.

 

Ignoring receipt of communications

 

Inexplicably in Singh v Minister for Immigration & Citizenship [2011] FCAFC 27, a migration agent ignored receipt of a letter preferring to require Immigration to post a letter to his street address rather than his post office box address. The Full Federal Court found that the first postage to the street address was valid service and time ran from that first service.  No migration adviser should ever ignore the date of receipt of a document in any form.  One should also calculate one’s deadlines from the first document received.

 

Irrelevant if it is Australia Post’s fault

 

In Lee v MIMA [2002] FCA 303, 20 March 2002, Hely J analysed in detail how the postage system works in Immigration. Immigration sent a visa refusal letter correctly addressed to the applicant at the postal address which she had nominated for correspondence. But the letter was returned to Immigration and marked "return to sender".  Here is how Hely J described the procedure:

 

A copy of the letter of 19 March 2001 maintained in DIMA's files has a barcode appearing at the bottom right hand corner of the letter, namely RP10485615. Ms McGee says that it is the practice of officers in the Rockdale Regional Office that this barcode is taken from a registered post envelope and placed on a copy of the letter which is placed into that envelope. The copy of the letter with the affixed barcode is then placed on the applicant's file. The details of the barcode are then entered into the ICSE database. According to Ms McGee, the notation "Letter sent in A/A" is a record of DIMA having issued a notification letter to Jeong Min Lee to an address in Australia. The notation "RP10485615 to client 19/03/2001" is a record that the notification letter was sent by registered mail, registered number 10485615, on 19 March 2001.

 

[Julieanne Coorey, the DIMA decision maker] signed the notification letter of 19 March 2001 and the information contained in the extract of the ICSE is said to have been recorded by her.

 

22 The second piece of evidence on which the Minister relies is another copy of the letter dated 19 March 2001 found in the file maintained by DIMA, which contains the following handwritten notation:

 

"20/3/01 Scanned in delivery centre 20/3/01

 

Aust Post says"That notation was made by a person unknown, apparently as a result of a communication with an unknown person from Australia Post. I would infer from the notation that somebody at Australia Post informed somebody at DIMA on 20 March 2001 that the letter of 19 March 2001 was in the delivery centre of Australia Post on 20 March 2001. Again, this document is a business record in terms of s 69 of the Evidence Act. Section 69(2)(b) applies as I am satisfied that the notation was made in the course of, and for the purposes of, the respondent's business on the basis of information directly supplied by a person from Australia Post who might reasonably be supposed to have had personal knowledge of the asserted fact, namely, that on 20 March 2001 an envelope containing a letter of 19 March 2001 was in the delivery centre of Australia Post.

 

23 It will be recalled that on 26 April 2001 the letter was returned to DIMA by Australia Post and marked "return to sender". It is clear from that fact that the letter was sent by DIMA to the applicant at some stage prior to 26 April 2001. The only question is when it was sent. The two pieces of evidence to which I have referred establish that the letter was sent on or prior to 20 March 2001. The posting of the letter has the result that the notice has been sent to the applicant, whether or not it was ever received by her.

 

It follows that once it is proved the letter is sent then the applicant is taken to have received the letter even the applicant never in fact received it, as it the case here.  Time ran from when the applicant is taken to have received the letter and therefore she had no merit review rights.

 

In Turcan v MIMA [2002] FCA 397 (18April 2002), Heerey J had to consider what the effect of the now repealed reg 5.02A(2) which provided that a document relating to the cancellation of a visa must be given to the holder by one of three methods, one of which was "(b) by sending it to the person's residential or business address last known to the Minister".  In this case well after completing the various forms for his visa application, the visa holder had requested DIMIA’s Translating and Interpreting Service to translate some documents for him. He filled out form 377 where he had set out his mailing address which was also in fact his residential address.  DIMIA sent all the cancellation of visa notices to him at the address supplied on the visa application, not the mailing address used for the TIS. DIMIA at that stage had no system in place for recording in its computer system addresses to supplied to the TIS. Heerey J held that the address used on form 377 was in fact the last residential address known to the Minister and therefore DIMIA had sent the cancellation documents to the wrong address. Here the cancellation had occurred while the visa holder was overseas as the Minister is entitled to do without notification of the visa holder, but the cancellation notice allows the visa holder to apply for a revocation within a certain time. Heerey J held that sending the cancellation notice to the address on the visa application documents, not the last address provided to TIS was not notification.

 

Authorised Recipient

 

In VEAN of 2002 v MIMIA [2003] FCAFC 311 (23 December 2003), the Full Federal Court had to consider the practice of Immigration sending a letter to an authorised recipient in the following way:

 

Mr Applicant

c/- Authorised Recipient

Address of Authorised Recipient

 

The Full Federal Court found that this was no compliance with s. 494D.  Because it was a notice of decision then the notice was not valid for the purpose of time beginning to run. 

41 The essential elements of compliance with s 494B(1) and (4) and s 494D(1) are:

• the giving of the document to the appellant or to the authorised recipient, and
• the dispatch of the document to one of the addresses specified in s 494B(4)(c).

42 In this matter, the correct specified address of the authorised recipient was used, but the addressee was not the authorised recipient. That is one of the two critical elements of the means of notification prescribed by s 494B(1) and (4)(c) and s 494D(1).

43 In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, McHugh, Gummow, Kirby and Hayne JJ at 388 – 389 [91] said:

‘An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.’

44 After discussing the continued utility of the distinction between mandatory and directory requirements, their Honours said at 390 [93]:

‘A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.’

45 In this matter, of course, the sending of the letter of 3 January 2002 in the manner described was not invalid. The issue is whether it was done in the manner prescribed by s 494B(1) and (4) and s 494D(1) so as to have the effect prescribed by s 494C(4) and s 494D(2). That is, the issue is whether it should result in the notification being taken to have been given to the appellant, and the appellant being taken to have received it, seven working days after the date of the letter. That is a matter of construction of the relevant provisions. The ordinary expression of the word ‘give’ involves, in the case of correspondence, the document being addressed to the person to whom it is to be given. There is nothing in the context of the words, or in the consequences of ascribing to the word ‘give’ its normal meaning, or in the purpose of other relevant provisions of the Act, which requires the word to be read in a way that does not correspond with its literal meaning (see e.g. Project Blue Sky at 384 [78]). Indeed, given the balancing of the policy considerations underlying ss 494A to 494D reflected in their careful wording, it would seem appropriate to ascribe to that word its normal meaning.

46 The consequence is that the letter of 3 January 2002 was not given to the authorised recipient, because it was addressed to some other person (the appellant) care of the address of the authorised recipient. And it was not given to the appellant at one of his addresses provided for by s 494B(4)(c). Accordingly, the notification is not one which attracts the operation of s 494C(4) and s 494D(2), that is the appellant is not taken to have received the document seven working days after its date of 3 January 2002.

47 In our judgment, the Tribunal therefore erred in law in determining that the application for review was outside the time specified in s 412(1)(b) and in dismissing the application. Such an error, reflecting an incorrect conclusion that the letter of 3 January 2002 answered or satisfied the statutory description in ss 494B and 494D, is an error of law: see e.g. Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 at [24]. Its decision involved jurisdictional error because, by its error of law, it wrongfully refused to exercise its jurisdiction: see Plaintiff S 157 of 2002 v Cwth [2003] HCA 2; (2003) 211 CLR 476.

The above decision demonstrates that DIMIA should adopt the normal practice used in the business and professional world which is that a letter when sent to a client’s solicitor, is sent to the solicitor without any reference to the client.  IN other words a letter to BHP solicitors does not read like this:

BHP

C/- XYZ Solicitors

The Full Federal Court noted:

38 The letter of 3 January 2002 was not addressed to the authorised recipient. It was addressed to the appellant, care of the authorised recipient. The factual consequence was that the authorised recipient did not consider the letter was addressed to her. She notified the appellant of the letter addressed to him at her address, and the appellant in fact arranged the collection of the letter from the post office.

39 We do not consider the letter of 3 January 2002 was, in the circumstances, given to the authorised recipient. The respondent’s contention to the contrary may be tested by reference to s 494B assuming the letter was to be given to the appellant. If the letter had been addressed to another person (not the appellant) at care of the appellant’s last address for service (see s 494B(4)(c)), it could not be said to have been given to the appellant. That is clearly not the intention of the legislature about how s 494B(1) and (4) should operate.

Another angle on all of this is the Federal Court decision of Rahman v MIMA  (1998) 51 ALD 316 at 325 where Einfeld J said:

In Rodwell at 197, Olney J thought that the choice of method for service must by implication be made in good faith. I respectfully agree. To choose a method of service that is known to be very unlikely to effect service when another method of service, required by practice and ethics if not by law, is almost certain to succeed frustrates the very purpose of the provisions for service and amounts to a breach of the implied duty to make the choice in good faith. In my opinion, the regulation should not be interpreted to allow the frustration of its very purpose by the giving of a mandatory notice to an address where it is or should be known that the person no longer lives. It cannot be within the Parliament's intention that a method of service can be chosen, at the whim or by the inadvertence or accident of the server, which would distinctly ensure that the document in question would not come to the receiver's attention, when one of the other prescribed methods would be much more likely to ensure that it did.

In Rahman, the applicant had appointed solicitors who wrote to DIMA advising that were acting on the applicant’s behalf, but the department kept writing to the applicant directly at the address given on the application, even though notices to that address were being repeatedly returned to sender.  DIMA did not write to the solicitors directly.

 

[1] Whenever the term ‘Minister’ is used in the Migration Act and Regulations it includes a reference to the delegate of the Minister, ie the Immigration officer involved in the decision or process.

[2] [item 80AA of Schedule 1 to the Electronic Transactions Regulations 2000 provides that s14, s14A and s14B of the Electronic Transactions Act 1999 do not apply to s379A(5), s441A(5) and s494B(5) of the Migration Act]]
 

 

Barbara Davidson