FEDERAL COURT OF AUSTRALIA Tay v Minister for Immigration & Citizenship [2010] FCAFC 23 Citation: Tay v Minister for Immigration & Citizenship [2010] FCAFC 23 Appeal from: Tay v Migration Review Tribunal (No2) [2009] FCA 591 Tay v Migration Review Tribunal & Anor [2009] FMC Order 12 October 2009 Parties: SWEE YEN TAY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL File number(s): SAD 82 of 2009 SAD 167 of 2009 Judges: DOWSETT, STONE AND BENNETT JJ Date of judgment: 10 March 2010 Catchwords: MIGRATION – application for leave to appeal from the decision of a single Judge of the Federal Court summarily dismissing application – application for leave to appeal from the decision of a Federal Magistrate who summarily dismissed a similar application – whether s 494C(5) creates a rebuttable presumption of fact – whether applicant entitled to lead evidence to show that she did not receive notification on the day on which the statute deemed notification to have taken place. Legislation: Electronic Transactions Act 1999 (Cth) Federal Court of Australia Act 1976 (Cth) Federal Magistrates Act 1999 (Cth) Migration Act 1958 (Cth) ss 5(23), 338(2), 494C(5) Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 Migration Regulations 1994 (Cth) reg. 4.10 Cases cited: Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FCAFC 270; 63 IPR 373 Carr v Western Australia (2007) 232 CLR 138 Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Farah Constructions Pty Limited v Say-Dee Pty Ltd (2007) 230 CLR 89 Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203 Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 77 Murphy v Minister for Immigration & Multicultural Affairs & Indigenous Affairs (2004) 135 FCR 550 Sharp v Deputy Commissioner of Taxation (1988) 88 ATC 4,184 Telstra Corporation Ltd v Treloar (2000) 102 FCR 595 Xie v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCAFC 172 Date of hearing: 11 November 2009 Place: Adelaide Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 27 Counsel for the Applicant: S D Ower Solicitor for the Applicant: McDonald Steed McGrath Counsel for the First Respondent: C B Bleby Solicitor for the First Respondent: Australian Government Solicitor Solicitor for the Second Respondent: P D'Assumpcao, Australian Government Solicitor (submitting appearance) IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 82 of 2009 ON APPEAL FROM THE federal court OF AUSTRALIA BETWEEN: SWEE YEN TAY Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGES: DOWSETT, STONE AND BENNETT JJ DATE OF ORDER: 10 MARCH 2010 WHERE MADE: SYDNEY(VIA VIDEO LINK TO ADELAIDE) THE COURT ORDERS THAT: 1. The application for leave to appeal be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 167 of 2009 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SWEE YEN TAY Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGES: DOWSETT, STONE AND BENNETT JJ DATE OF ORDER: 10 MARCH 2010 WHERE MADE: SYDNEY(VIA VIDEO LINK TO ADELAIDE) THE COURT ORDERS THAT: 1. The application for leave to appeal be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 82 of 2009 SAD 167 of 2009 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SWEE YEN TAY Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGES: DOWSETT, STONE AND BENNETT JJ DATE: 10 MARCH 2010 PLACE: SYDNEY (via video link to adelaide) REASONS FOR JUDGMENT 1 The facts in this matter are not in dispute. In the following account we have drawn on submissions made by the applicant and the first respondent. As the second respondent has entered a submitting appearance in these reasonswe shall henceforth refer to the first respondent simply as the respondent. Background 2 On 27 December 2007 the applicant applied for a Class VC Subclass 485 Skilled (Provisional) Graduate Visa. Consistent with s 494B(5), in her visa application the applicant gave the Department of Immigration and Citizenship an email address as her authorised contact address. On 22 September 2008 the Department sent to that address an email notifying the applicant that her visa application had been rejected by a delegate of the Minister and attaching a letter enclosing the decision record. The delegate's decision was an MRT-reviewable decision within the meaning of s 338(2) of the Migration Act 1958 (Cth). 3 On 20 October 2008 the applicant's solicitor sent a letter by email to the Department stating that the applicant "did not receive the email informing her of the refusal of the decision until 16 October 2008". The solicitor requested that the decision be re-notified so that the applicant could seek review in the Migration Review Tribunal. The request was refused by return email. 4 The request for re-notification was made in the context of the time limit for seeking review of the delegate's decision in the Tribunal being "21 days after the day on which the notice [of the decision] is received"; Migration Regulations 1994 (Cth) reg. 4.10. The day of the receipt of the notice is determined in accordance with s 494C(5) of the Migration Act which is as follows: Transmission by fax, e-mail or other electronic means (5) If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, e-mail 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. Section 5(23) of the Migration Act clarifies the meaning of the phrase "is taken" by providing: (23) To avoid doubt, in this Act is taken, when followed by the infinitive form of a verb, has the same force and effect as is deemed when followed by the infinitive form of that verb. 5 On the face of it, it would seem to follow from these provisions that the applicant is deemed to have been notified of the delegate's decision on 22 September 2008 irrespective of whether she had in fact received it on that day or at all. Consequently the period in which the applicant could apply for review of the delegate's decision expired on 13 October 2008. Application to Tribunal 6 The applicant nevertheless lodged an application for review with the Tribunal on 6 November 2008. She claimed that correctly construed, s 494C(5) created a rebuttable presumption of fact and that she was entitled to lead evidence to show that she did not receive the decision until 16 October 2008. In making this claim it was necessary for the applicant to confront the hurdle imposed by the decision of the Full Federal Court in Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 in which the Full Court rejected this approach. 7 In her application to the Tribunal the applicant conceded that the Tribunal was bound by Xie and on that basis her application was dismissed on 4 August 2009. The Tribunal held that because the application for review was out of time it had no jurisdiction to review the delegate's decision. Application to Federal Court 8 In the meantime, on 14 November 2008, the applicant had also commenced proceedings in the Federal Court seeking declarations in respect of the proper construction of s 494C(5). On the application of the Minister that application was summarily dismissed on 2 June 2009 by Besanko J pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth); Tay v Migration Review Tribunal (No2) [2009] FCA 591. Application to Federal Magistrates Court 9 On 8 September 2009, the applicant commenced proceedings in the Federal Magistrates Court seeking constitutional writs in relation to the Tribunal's decision. Once again the Minister sought summary dismissal and the application was dismissed by Simpson FM on 12 October 2009. The present proceeding 10 The applicant now seeks to appeal from the decisions of Besanko J and Simpson FM. As an order for summary dismissal is an interlocutory decision, the applicant requires leave to appeal in respect of each decision. Despite there being two applications, there is only one matter, with the same submissions being put respectively by the applicant seeking leave in both proceedings and by the Minister opposing both applications. The reasons that follow apply equally to both applications and, except where expressly stated, we will not distinguish between the two applications. Criteria for granting leave to appeal 11 A decision to dismiss an application summarily is an interlocutory decision when made pursuant to s 17A of the Federal Magistrates Act 1999 (Cth) or s 31A of the Federal Court of Australia Act 1976 (Cth). As with any interlocutory decision leave to appeal to this Court is required; s 24(1A) of the Federal Court Act. The Court has anunfettered discretion to grant or refuse that leave; Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FCAFC 270; 63 IPR 373. Generally, however, the Court will not grant leave unless satisfied that a substantialinjustice would result if leave were refused and that the interlocutory decision is attended with sufficient doubt to warrant it being reconsidered; Décor Corporation Pty Ltd v Dart Industries Inc ('Decor') (1991) 33 FCR 397 at 398-9. Burchett J noted in Sharp v Deputy Commissioner of Taxation (1988) 88 ATC 4,184 that these two elements bear upon each other. As his Honour observed at 4,186: '[T]he sufficiency of the doubt in respect of the decision and the question of substantial injustice should not be isolated in separate compartments. They bear upon each other, so that the degree of doubt which is sufficient in one case may be different from that required in another. Ultimately, a discretion must be exercised on what may be a fine balancing of considerations.' These comments were quoted with approval in Décor at 398-399. 12 The applicant has conceded that the decision in Xie governs the present application. That concession was rightly made. That being so there can be no error in either Besanko J or Simpson FM dismissing the respective applications before them. As the applicant admits, however, she wishes to challenge the holding in Xie and therefore, as a preliminary to the grant of leave this Court must be satisfied that the decision in Xie is attended by sufficient doubt to call into question the correctness of the applications made before Besanko J and Simpson FM. 13 In fact the bar is set considerably higher. There are numerous authorities to the effect that a full court should only depart from an earlier full court decision when that decision is patently in error or has produced "unintended and perhaps irrational consequences not foreseen by the court that created the precedent"; Telstra Corporation Ltd v Treloar (2000) 102 FCR 595 at [28] per Branson and Finkelstein JJ. The Court must also bear in mind the views expressed by the High Court in Farah Constructions Pty Limited v Say-Dee Pty Ltd (2007) 230 CLR 89 at 135that intermediate appellate courts and trial judges should not depart from the decisions of intermediate appellate courts in another jurisdiction in relation to the interpretation of Commonwealth legislation. In our view those observations apply equally to full court decisions of the Federal Court of Australia. The decision in Xie and the construction of s 494C 14 The appellant in Xie applied for a student visa and gave the Department a postal address as the address for service in connection with his application. A letter notifying the appellant that his application was unsuccessful and attaching the relevant decision record was sent by registered mail, apparently on 4 August 2004, to the address for service. The appellant said that he did not collect the letter from Australia Post until 1 September 2004. His application for review filed with the Migration Review Tribunal on 8 September 2004 was held by the Tribunal to be out of time and accordingly review was refused. 15 It was not in contention that dispatch of the letter to the address given by the appellant by registered post was in accordance with s 494B(4)(c). The Full Court accepted that this was a permitted method of notifying the appellant of the decision and referred to the observations of O'Connor and Mansfield JJ in Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 77 at [29]. In Singh their Honours also observed at [30]: Neither the [Migration] Act and the Regulations, nor s 28A of the Acts Interpretation Act draw any distinction between the use of registered pre-paid mail or "regular" or ordinary pre-paid mail. … Nor is there any indication in s 29 of the Acts Interpretation Act that the legislature intended to distinguish between sending pre-paid post by ordinary mail or by registered mail. If such a distinction was intended, it is evident that it would have been recognised in those provisions. Indeed, the terms of s 29 of that Act refer to service by post or sending by post in terms which readily encompass both ordinary and registered pre-paid post. 16 What was at issue in Xie was whether s 494C(4) of the Migration Act, which applies to documents dispatched by pre-paid post or other pre-paid means, created an irrebuttable presumption as to the time of receipt of the documents or whether evidence could be brought to establish the actual time of receipt. Section 494C(4) is as follows: Dispatch by prepaid post or by other prepaid means (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. [Emphasis added] 17 In Xie at [14], the Full Court quoted with approval Spender J's comment concerning s 494C(4) in Murphy v Minister for Immigration & Multicultural Affairs & Indigenous Affairs (2004) 135 FCR 550 at [69]: In my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification. There is nothing to indicate … that the subsection operates in its terms only "until the contrary is proved". 18 The Full Court observed that the statutory and regulatory provisions prescribed "with precision the steps to be taken in notifying a visa applicant of the outcome of his or her application" and held that there was nothing to suggest that it merely created a rebuttable presumption. 19 For reasons given below, we have concluded that the decision in Xie is not wrong nor does it produce unintended or irrational consequences. The construction of s 494C(4) in Xie and the consequent rigidity of time limits imposed on applications for review may seem harsh but, as the explanatory material referred to below indicates, they result from the considered decision of the legislature as to an appropriate way to facilitate visa applications and to clarify when documents are received. In so far as is presently relevant, the provisions of s 494C(4) and s 494C(5) are identical and therefore the reasoning of the Full Court in Xie is equally applicable to both subsections. 20 The effect of s 5(23) of the Migration Act (see [4] above) is that the proper construction of ss 494C(4) and (5) must focus on the meaning of the word "deemed" and the purpose for which it is used. In Muller v Dalgety & Co Limited (1909) 9 CLR 693 at 696 Griffith CJ observed that the word 'deemed' may be used to indicate that a definition is exhaustive or as extending the sense which might otherwise have been given to that definition. His Honour added: The word 'deemed' may be used in either sense, but it is more commonly used for the purpose of creating what James LJ and Lord Cairns LC called a 'statutory fiction' … that is, for the purpose of extending the meaning of some term to a subject matter which it does not properly designate. When used in that sense it becomes very important to consider the purpose for which the statutory fiction is introduced. 21 In Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203 the question arose in the context of s 553(2)(b) of the Companies (New South Wales) Code (Code) which referred to circumstances in which a company "shall be deemed to be unable to pay its debts". The question before the New South Wales Court of Appeal was whether evidence could be brought to establish that a company was unable to pay its debts in circumstances other than those which enlivened the deeming provision. In considering the competing views of the operation of s 553(2)(b), Gleeson CJ said, at 207-8 that it was important not to confuse two questions: One is a question as to the meaning of the word "deemed". The other is a question as to the statutory purpose for which, in a given case, that word is used. As Windeyer J pointed out in Hunter Douglas Australia Pty Ltd v Perma Blinds (1970) 122 CLR 49 at 65: "… to deem means simply to judge or reach a conclusion about something." That is the meaning assigned to the word in dictionaries such as the Macquarie Dictionary ("to form or have an opinion; judge;") of the Shorter Oxford English Dictionary ("to judge … to decree; … to decide; … to conclude, consider, hold"). It commonly happens that, because legislation contains a deeming provision, there may arise a question of construction which turns, not so much upon the meaning of the word "deemed", as upon a view concerning the statutory purpose for which it has been used. Such a question may turn, for example, upon whether the legislature is intending to create a statutory fiction or whether, on the other hand, it is merely making a provision for the removal of doubt which might otherwise exist … There is another issue that sometimes arises where Parliament has enacted a deeming provision. In some cases a court may conclude, as a matter of construction, that the consequence which is deemed to follow is only in the nature of a rebuttable presumption; a certain state of affairs will be presumed unless and until the contrary is proved. 22 In concluding that s 553(2)(b) did not create a rebuttable presumption, Gleeson CJ (with whom Cripps JA agreed) construed the section in its statutory context. His Honour took into account related provisions of the Code including s 556 which imposed civil and criminal liability on company officers in respect of the debts of a company if, at the time the debt was incurred, the company was, or later became, a company to which s 553(2)(b) applied. In Macquarie Bank the construction problem was also simplified because s 553(2)(b) stated insolvency would be deemed "if, and only if" the specified circumstances arose. 23 While the statutory context was of assistance, Gleeson CJ commented that the general purposes of the legislation were of little assistance to the resolution of the problem under consideration. His Honour stated, at 210: We are confronted with a problem of statutory construction as to whether a given set of circumstances will, or will not, satisfy a condition which gives rise to potential liability. There is no reason to strain to reach a construction which widens the circumstances. The fact that the legislation has penal consequences provides a reason not to do so. To contend that the aim of the legislature is to discourage and penalise insolvent trading, and that therefore one should prefer a result which widens the scope for proof of inability to pay debts, is to ignore the careful manner in which the legislature has defined the circumstances in which liability arises. See also Carr v Western Australia (2007) 232 CLR 138 at [5] per Gleeson CJ. 24 With respect, the tenor of Gleeson CJ's comments is applicable here. Section 494C makes very detailed provision for determining when a document is taken (deemed) to have been received from the Minister. Those provisions must be construed in a statutory context of similarly detailed provisions concerning the methods by which the Minister may give documents to a person when this is a requirement (s 494B) and when it is not required (s 494A) and the identification of the authorised recipient of documents (s 494D). These provisions all evidence concern that there should be certainty in the transfer of documents from the Minister both as to the method and as to the time of delivery. This was recognised by the Full Court in Xie leading it to conclude that s 494C(4) did not create a rebuttable presumption:see [17] above. 25 That s 494C(5) does not create a rebuttable presumption of fact is supported not only by our construction of the relevant statutory and regulatory provisions, but also by extrinsic material relevant to the introduction of these provisions. Sections 494A, 494B, 494C and 494D were introduced into the Migration Act by the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 (Cth). On 5 April 2001, in his second reading speech concerning the bill that preceded this Act, the Minister for Immigration and Multicultural Affairs said: These amendments essentially consolidate into the Migration Act existing provisions found in either the Migration Act or the migration regulations. They clarify when notification of a decision occurs and on what date. This is critical for review mechanisms, as an application for review must be made within a specified period, or the case is out of time. 26 The Explanatory Memorandum, at paragraph 152, refers to the new sections as providing for "certainty of dispatch and receipt where the Minister gives documents". The Explanatory Memorandum, at paragraphs 162 and 163, also makes reference to the new provisions displacing the deemed receipt provisions of the Electronic Transactions Act 1999 (Cth) because they provide more certainty. Conclusion 27 For the above reasons we have concluded that leave to appeal should be refused in both cases and that the applications for leave to appeal from the judgments of the Federal Magistrates Court and from the Federal Court must be dismissed with costs. I certify that the preceding twenty seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Dowsett, Stone and Bennett. Associate: Dated: 10 March 2010