FEDERAL COURT OF AUSTRALIA Lee v Minister for Immigration & Multicultural Affairs [2002] FCA 303 MIGRATION – appeal from decision of Migration Review Tribunal to refuse an application for a student visa – whether application was lodged with the Migration Review Tribunal out of time – whether applicant was properly notified by the Minister for Immigration & Multicultural Affairs of its decision to refuse the applicant a student visa – whether notification was deemed to be received Migration Act 1958 (Cth) subs 53(1), 53(3), s 66(1), 183, 338(2), 347, 347(1)(b)(i), 348(1), 474 Evidence Act 1995 (Cth)s69, 69(2)(a), 69(2)(b), 183 Migration Regulations 1994 (Cth) Reg 4.10(1)(a), 5.03, 5.03(1), 5.03(2) Santos v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 334 applied JEONG MIN LEE v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 1504 OF 2001 HELY J 20 MARCH 2002 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1504 OF 2001 BETWEEN: JEONG MIN LEE APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HELY J DATE OF ORDER: 20 MARCH 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1504 OF 2001 BETWEEN: JEONG MIN LEE APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HELY J DATE: 20 MARCH 2002 PLACE: SYDNEY REASONS FOR JUDGMENT 1 On 16 February 2001 the applicant applied for a Student (Temporary) (Class TU) visa. The application was made to the Rockdale Regional Office of the Department of Immigration & Multicultural Affairs ("DIMA"). 2 On 19 March 2001 a decision was taken by the Minister's delegate to refuse the application. The delegate was J. Coorey. 3 DIMA's records include a copy of a letter dated 19 March 2001 signed by J. Coorey, addressed to Jeong Min Lee at 129/438 Forest Road, Hurstville NSW 2220, advising of the refusal of her application and enclosing the decision record which contained the reasons for that refusal. The letter stated that Ms Lee could seek review of the decision by applying to the Migration Review Tribunal ("MRT") no later than 21 days after receiving notification of the decision. The letter goes on to say that: "You are taken to have received this decision seven (7) days from the date of this letter". 4 It is common ground that the letter was correctly addressed to the applicant at the postal address which she had nominated for correspondence. 5 On 26 April 2001 the letter was returned to DIMA and marked "return to sender". 6 On 25 July 2001 the applicant attended the DIMA office at Rockdale to enquire as to the state of progress of her application. She was then informed that her application for a visa had been refused, although on that occasion she was not supplied with any documentation in relation to that refusal. 7 On 8 August 2001 a copy of the letter bearing the date 19 March 2001 was provided to the applicant's solicitor, Mr Levingston, who provided it to the applicant on the following day. On 10 August 2001 the applicant lodged an application for review of the delegate's decision with MRT. 8 On 8 October 2001 a letter was forwarded to the applicant's solicitors on the letterhead of MRT, signed by Ian Dunston "for Deputy Registrar" which stated as follows: "I am sorry to advise you that we cannot accept the application of Ms Jeong Min Lee to the Tribunal for the review of the decision to refuse her a subclass 560 visa. As you are aware, Ms Lee's application to the Tribunal should have been lodged within a 28-day time limit. The letter from the Department of Immigration and Multicultural Affairs informing Ms Lee of the decision was dated 19 March 2001, and on this basis I have calculated that the last day on which she could have lodged a valid application for review was 16 April 2001. However, Ms Lee's application for review was not received at the Tribunal until 10 August 2001. The Tribunal has no power to extend or waive time limits but it is possible that an error may have been made in calculating the period, or that the Department of Immigration and Multicultural Affairs did not properly notify Ms Lee of the decision. In this regard please note that I have taken into account the circumstances as detailed in your letter of 9 August 2001, and have determined that the Department properly notified Ms Lee of the visa refusal at the correct address for notification last nominated by her. I have also noted your views on the Federal Court decision in the matter Minister for Immigration and Multicultural Affairs v Singh (N496 of 2000, 4 April 2000), and it's [sic] appropriateness to the circumstances in this case. You have correctly stated that in this matter the Federal Court found that Regulation 5.03 was defective. However, from 1 July 2000, Regulation 5.03 was amended to include Regulation 5.03(2) which addressed the issues raised by the Federal Court. As such, the Tribunal's view is that Ms Lee's application for review is ineligible for consideration and will therefore be finalised accordingly. I am arranging for the application fee of $1400.00 to be refunded and Ms Lee should receive a cheque in the near future. Please contact me on 9290 7222 if you have any further enquiries." 9 On 10 October 2001 the applicant's solicitors forwarded a letter to MRT which was in the nature of a submission to the effect that MRT had jurisdiction to determine the application for review. On 29 October 2001 a Deputy Registrar of MRT replied to that communication by email and said: "I've reconsidered the matter and come to the conclusion that the application for review was not lodged within the applicable time limit." The email included the following : "The Principal Member has directed that Tribunal officers (through duty statements and Tribunal procedures) assess the validity of applications for review. There is a discretion for officers to leave complex or unusual matters for the Tribunal (formally constituted) to decide, whether at time of first consideration or on a later reconsideration by the same officer or another officer." 10 On 8 November 2001 the applicant applied to this Court for an Order of Review. The application identified the decision of which review was sought as being the decision of MRT of 29 October 2001. The application sought a declaration that MRT has jurisdiction in the matter pursuant to the provisions of s 347(1)(b)(i) of the Migration Act 1958 (Cth) ("the Act") and an order that MRT exercise powers pursuant to the provisions of s 348(1) of the Act. 11 When the Minister refuses to grant a visa, he is to notify the applicant of the decision in the prescribed way: s 66(1). At the relevant time, the prescribed way included sending a notice of the decision to the last address given to the Minister by the applicant under subs 53(1) of the Act. Section 53(1) of the Act obliged a visa applicant to tell the Minister the address at which the applicant intends to live while the application is being dealt with. 12 Regulation 5.03 provided: "5.03. (1A) This regulation applies to a document sent by the Minister or a Tribunal to a person in that person's capacity as: (a) an applicant, of any kind, under the Act or these regulations; or (b) the holder, or the former holder, of a visa; or (c) a person who is invited by a Tribunal to give information or comments to the Tribunal. (1) For the purposes of the Act and these Regulations, and subject to the Act and specific provision elsewhere in these Regulations, a document is taken to be received by the person to whom it was sent at the time that the document is taken to be received at the address to which the document is sent, which is either: (a) if the document is sent from a place in Australia to an address in Australia – 7 days after the date of the document; or (b) if the document is sent from: (i) a place outside Australia to an address in Australia; or (ii) a place in Australia to an address outside Australia; or (iii) a place outside Australia to an address outside Australia; 21 days after the date of the document. (2) Subregulation (1) does not apply to a document unless it is sent within 3 days after the date of the document." Section 53(3) of the Act provided that if the Minister sends a notification to the applicant at the address for the applicant given under subs (1), the notification is taken to have been received by the applicant even if it was not received. 13 The decision of the Minister's delegate to refuse to grant a visa to the applicant is a "MRT–reviewable decision": s 338(2). An application for review of an MRT reviewable decision by MRT must be given to MRT within the prescribed period which, in the circumstances of the current case was a period ending not later than 21 days after the notification of the decision: s 347(1)(b)(i); Reg 4.10(1)(a). Section 348(1) provides that if an application is properly made under s 347 for review of an MRT–reviewable decision, MRT must review the decision. 14 It is common ground that if the deeming provisions of Regulation 5.03 apply in the circumstances of the present case, then the application for review of the decision of the Minister's delegate was not properly made under s 347 of the Act, as it was made outside the prescribed period. 15 It is also common ground that Regulation 5.03 would be applicable in the circumstances of the present case if the notice of decision was sent to the applicant within three days after 19 March 2001. 16 The onus of proving that the notice was sent to the applicant within three days after the date of the document lies on the Minister, as that is a condition precedent to the operation of the deeming provisions contained in Regulation 5.03(1): Santos v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 334 at 336. 17 Two pieces of evidence were relied upon by the Minister in this respect. The first is an affidavit of Allison McGee sworn on 13 March 2002 which was read without objection. Ms McGee was not required to attend for cross-examination. At the relevant time Ms McGee was Assistant Manager at the Rockdale Regional Office of DIMA. Her duties at that time included supervising staff engaged in the processing and determination of student visa applications. The staff under her supervision used a database known as the ICSE as a record of actions and processes taken in the processing and determination of these applications. Information is entered onto to the ICSE each time a recordable event occurs. Examples of a recordable event include the date that DIMA letters are sent to visa applicants. Annexed to Ms McGee's affidavit is a copy of an extract from the ICSE maintained in relation to the applicant. The "Event Occurred Date" of that extract is shown as 19 March 2001. In the information field entitled "Event Additional Information" the following notation appears: "Letter sent in A/A 19/03/2001 rp10485615 to client 19/03/2001." The name "Coorey, Julieanne" appears under the heading "Recorded by" adjacent to that information. 18 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. 19 The ICSE database, and the copy of the letter bearing the notation RP10485615 are business records of the respondent in terms of s 69 of the Evidence Act 1995 (Cth) which contain a previous representation made or recorded in those documents both in the course of, and for the purposes of the business of DIMA. 20 Section 69(2)(a) of the Evidence Act provides that the hearsay rule does not apply to a document containing a previous representation made or recorded in the document if the representation was made by a person who had, or might reasonably be supposed to have had, personal knowledge of the asserted fact. Section 183 of the Evidence Act allows me to draw reasonable inferences from the document itself as well as from other matters from which inferences may properly be drawn. 21 The relevant person in this case for the purpose of s 69(2)(a) is Julieanne Coorey. She had 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. The asserted fact is that a registered letter containing notification of the decision was sent to the applicant in Australia on 19 March 2001 under the notation "RP10485615". Ms Coorey is a person who, on the evidence, might reasonably be supposed to have had a personal knowledge of the asserted fact, hence the respondent has established the pre-condition in Regulation 5.03(2) such that the deeming provisions in Regulation 5.03(1) operate. 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. 24 In the light of that conclusion it is not necessary for me to determine whether the Application for Review to this Court correctly describes the relevant decision, or to determine whether the decision-maker was MRT or a Registrar. Nor is it necessary for me to determine, if the relevant decision-maker was a Registrar, whether he was authorised to make the decision in question. Nor is it necessary for me to determine whether the decision is a privative clause decision in terms of s 474 of the Act. 25 The applicant's solicitor accepted that if I came to the conclusion that the document was sent to the applicant within three days of its date, the consequence would be that the application should be dismissed. It would be futile for the matter to be remitted to MRT (even if a case for remitter was otherwise made out) for MRT to determine whether the application to MRT was validly made, having regard to my finding that it was not. 26 The application is dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely. Associate: Dated: 20 March 2002 Counsel for the Applicant: D Prince Solicitor for the Applicant: Christopher Levingston & Associates Counsel for the Respondent: J Smith Solicitor for the Respondent: Clayton Utz Date of Hearing: 14 March 2002 Date of Judgment: 20 March 2002