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Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
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Cases

MIGRATION - appeal from single judge dismissing application for review of decision of Migration Review Tribunal - Tribunal had refused to consider application as appellant had lodged her application outside the statutory time requirements of the Migration Act 1958 (Cth) - appellant did not receive letter advising of delegate's decision - evidence of letter sent within statutory time requirements

MIGRATION - Tribunals - purported decision of Migration Review Tribunal to refuse to consider appellant's application - decision made by Deputy Registrar - supposed delegation of power by Principal Member unlawful

Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2002]

Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 305 (4 October 2002)
Last Updated: 8 October 2002


FEDERAL COURT OF AUSTRALIA
Lee v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCAFC 305


MIGRATION - appeal from single judge dismissing application for review of decision of Migration Review Tribunal - Tribunal had refused to consider application as appellant had lodged her application outside the statutory time requirements of the Migration Act 1958 (Cth) - appellant did not receive letter advising of delegate's decision - evidence of letter sent within statutory time requirements

MIGRATION - Tribunals - purported decision of Migration Review Tribunal to refuse to consider appellant's application - decision made by Deputy Registrar - supposed delegation of power by Principal Member unlawful

Migration Act 1958 (Cth) ss 53, 66, 347, 348, 353A, 354, 395, 396, 397, 407

Migration Regulations reg 5.03

Evidence Act 1995 (Cth) ss 58, 69, 135,

Santos v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 334, followed

National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309, considered

Daw v Toyworld (NSW) Pty Ltd (2001) 21 NSWCCR 389, cited

Kingham v Sutton (No 3) FCA [2001] 1117, cited

Vitali v Stachnik [2001] NSWSC 303, cited

PMT Partners (in liq) v Australian National Parks and Wildlife Services (1995) 184 CLR

301, cited

FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268, cited

Knight v FP Special Assets Ltd (1992) 174 CLR 178, cited

Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, referred to

Fenton v Hampton (1858) 11 Moo 347, followed

Egan v Willis (1998) 195 CLR 424, followed

Semunigus v Minister for Immigration & Multicultural Affairs [2000] FCA 240, referred to

Inderjit Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 73, referred to

Akand v Minister for Immigration & Multicultural Affairs [2000] FCA 626, referred to

R v Hickman; Ex parte Clinton (1945) 70 CLR 598

Odgers "Uniform Evidence Law" (5th ed.) Federation Press

JEONG MIN LEE V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N283 of 2002

MADGWICK, MERKEL & CONTI JJ

4 OCTOBER 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N283 of 2002




BETWEEN:
JEONG MIN LEE

APPLICANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT




JUDGE:
MADGWICK, MERKEL AND CONTI JJ


DATE OF ORDER:
4 OCTOBER 2002


WHERE MADE:
SYDNEY




THE COURT ORDERS THAT:

1. The appeal 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
N283 of 2002




BETWEEN:
JEONG MIN LEE

APPLICANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT




JUDGE:
MADGWICK, MERKEL AND CONTI JJ


DATE:
4 OCTOBER 2002


PLACE:
SYDNEY





REASONS FOR JUDGMENT
MADGWICK J:

Introduction

1 This is an appeal from a decision of Hely J of 20 March 2002 dismissing an application for review of a decision apparently taken by a Deputy Registrar of the Migration Review Tribunal ("the MRT") but purporting to be a decision of the MRT, that the appellant's application for review by the MRT of a decision of the delegate of the Respondent refusing her a Student (Temporary) Class (TU) visa ("the primary decision") was invalid.

2 I draw heavily and gratefully on his Honour's judgment, without further acknowledgement, in explaining what the case is about.

A letter from the Migration Review Tribunal ("MRT") apparently goes astray

* 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").

* On 19 March 2001 a decision was taken by the Minister�s delegate to refuse the application. The delegate was J Coorey.

* 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&
quot;.

* It is common ground that the letter was correctly addressed to the applicant at the postal address which she had nominated for correspondence.

* On 26 April 2001 the letter was returned to DIMA and marked "return to sender".

* 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.

* 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 the MRT.

MRT staff deal with matters

3 On 8 October 2001 a letter was forwarded to the applicant�s solicitors on the letterhead of the 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 ... if you have any further enquiries."

4 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."
5 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 the 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 the MRT exercise powers pursuant to the provisions of s 348(1) of the Act.

The legislative requirements as to notification

6 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.

7 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."

8 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.

9 The decision of the Minister�s delegate to refuse to grant a visa to the applicant is an "MRT-reviewable decision": s 338(2). An application for review of an MRT-reviewable decision by the MRT must be given to the 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, the MRT must review the decision.

10 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.

11 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.

12 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.

The relevant evidence relied on by the primary judge

13 Two pieces of evidence adduced by the Minister were relied upon by the primary judge 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.

14 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.

15 The second piece of evidence relied upon 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.

The primary judge's acceptance of the evidence

16 Section 69 of the Evidence Act 1995 (Cth) ("the Evidence Act") provides:

"(1) This section applies to a document that:
(a) either:

(i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or

(ii) at any time was or formed part of such a record; and

(b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.

(2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made:

(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or

(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.

(3) Subsection (2) does not apply if the representation:

(a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding; or

(b) was made in connection with an investigation relating or leading to a criminal proceeding.

(4) If:

(a) the occurrence of an event of a particular kind is in question; and

(b) in the course of a business, a system has been followed of making and keeping a record of the occurrence of all events of that kind;

the hearsay rule does not apply to evidence that tends to prove that there is no record kept, in accordance with that system, of the occurrence of the event.

(5) For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person's knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact)."

17 As to Ms McGee's evidence, his Honour said:

"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.
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.

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."

18 Concerning the file copy of the letter of 19 March and the "Scanned in" notation, his Honour said:

"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."
The primary judge's overall conclusions

19 His Honour concluded:

"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.
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.

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.

The application is dismissed with costs."

The appellant's case

20 The appellant argues that:

(i) whether the MRT had jurisdiction is a question of jurisdictional fact for the Court to decide; this is to be objectively determined and s 474 of the Act therefore has no relevance;

(ii) the question is whether there was admissible evidence that Australia Post had the letter by 22 March 2001;

(iii) Ms McGee's affidavit does not alone prove the time at which Australia Post received the letter from the Respondent's officers;

(iv) The note attached to the copy letter was inadmissible as:

- its author's identity is not known;

- nor is the identity of the person at Australia Post to whom it apparently refers;

- in particular, his Honour erred in holding that the note satisfied s 69(2)(b) of the Evidence Act, as there was no evidence as to its origin; the Evidence Act does not permit documents to authenticate themselves: National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309 (Bryson J), approved Daw v Toyworld (NSW) Pty Ltd (2001) 21 NSWCCR 389 at [46] per Heydon JA.

(v) his Honour erred in not ruling on the appellant's objection, taken with s 135 of the Evidence Act in mind, that the probative value of the note was substantially outweighed by the danger that the evidence might be unfairly prejudicial to the appellant.

Conclusion

21 Despite the careful argument presented by counsel for the appellant, there is a short point which is fatal to the appellant's case. This is that Ms McGee's affidavit is in evidence, without any testing of that evidence having occurred. Ms McGee says:

"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.
...

I refer to annexure AM2 [copy of letter dated 19 March 2002 from DIMA to appellant] and specifically to the barcode appearing at the bottom right hand corner of the letter, namely RP10485615. It is the practice of officers in this 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.

I generated annexure AMI [extract from ICSE database] on 13 March 2002."

22 Counsel invited the Court to read the affidavit as indicating only that on 19 March 2001 the envelope containing the letter was made ready for delivery to Australia Post, and not actually delivered to it, so that the letter was not necessarily "sent" on 19 March, as the regulation requires, despite Ms McGee's assertion that, assuming the used language in its ordinary sense, it was so sent. It would, however, be wrong, in my opinion, to read down what Ms McGee has said without some evidentiary basis for doing so. Nothing else in the evidence would indicate that it should or might be so read down, except (possibly) for the disputed note. If, contrary to the appellant's submission, one looks at that note, it tends in any case (and for other reasons) not to avail the appellant.

Sections 58, 69 and 135 of the Evidence Act

23 It is, accordingly, not strictly necessary to decide the admissibility under s 69 of the Evidence Act of the "scanned-in" note or whether his Honour should, in dealing with the s 135 objection, have upheld that objection. However, in deference to the arguments presented to the Court on the appeal, I would make some brief comments.

24 Both of these questions may involve issues of general importance about the meaning and application of the Evidence Act. The first concerns s 58 which provides:

"(1) If a question arises as to the relevance of a document or thing, the court may examine it and may draw any reasonable inference from it, including an inference as to its authenticity or identity.
(2) Subsection (1) does not limit the matters from which inferences may properly be drawn."

25 There is controversial NSW authority which supports the appellant: National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309 (Bryson J), approved by Heydon JA in Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25; see also Kingham v Sutton (No 3) [2001] FCA 1117, c.f. Odgers "Uniform Evidence Law" 5th ed. at p140. In Rusu, his Honour may have meant no more than that there may be cases in which, as a matter of fact, no inference as to authenticity of a document may be properly drawn from the document itself. If he meant to say more than that, it is by no means clear to me that the way is open for a court to read some unexpressed limitation into a grant of power to courts: such grants are generally very liberally construed - see PMT Partners (in liq) v Australia National Parks and Wildlife Service (1995) 184 CLR 301 at 303 and 316; FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 at 290; Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 185, 195 and 202-3. Such an approach may be particularly apt where, as here, the provision aims at putting another nail into the coffin of unmeritorious technicality in litigation and s 135 provides ample safeguards against possible abuse of the section.

26 In relation to the s 135 point, it would appear that by oversight his Honour may have omitted to rule on the appellant's objection. Section 135 of the Evidence Act provides:

"The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing; or

(c) cause or result in undue waste of time."

27 In the context, the real considerations to be weighed would appear to be, firstly, the risk that the officer who probably made the note did so "in contemplation of" (c.f. s 69(3)(a) Evidence Act) a challenge in the MRT to the rejection of the appellant's application. Secondly, however, there was a dearth of evidence to support imputing such contemplation to the officer concerned. Thirdly, there really is involved a fear that there has been an inaccurate statement made, serving the respondent's presumed interest, by one of his officers. In the circumstances, it is difficult to see how any such inaccurate statement could have been other than deliberately made. Enough malpractice by official persons investigating crime has occurred to necessitate an assumption of real risk generally of such malpractice: see, for example, ss 84 and 85 of the Evidence Act. However, here, nothing is known of the identity of the officer who made the note and such an assumption should not lightly be made of the Minister's officers generally. In the circumstances s 135 of the Evidence Act would not assist the appellant.

Failure by the MRT to consider the application's validity

28 The appellant chose not to seek to rely on the curious events whereby officers employed to give administrative assistance to a quasi-judicial body making decisions of extreme importance, possibly indeed touching on questions of "human fate" (as Toohey J said of refugee cases: Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 407) have been encouraged themselves to decide whether that body has jurisdiction to hear persons seeking relief from it. However, the matter is fundamental to the question whether the MRT lawfully dealt with the appellant's application and, in my opinion, the Court should not ignore it.

29 The Tribunal consists of its members: s 395. They are appointed by the Governor General: s 396. Section 354 provides:

"(1) For the purpose of a particular review, the Tribunal shall be constituted, in accordance with a direction under subsection (2), by:
(a) a single member;

(b) 2 members; or

(c) 3 members.

(2) The Principal Member, or a Senior Member acting in accordance with guidelines under subsection (3), may give a written direction about who is to constitute the Tribunal for the purpose of a particular review.

(3) The Principal Member may give to the Senior Members written guidelines for the giving of directions by Senior Members about who is to constitute the Tribunal for the purpose of particular reviews."

30 The essential function of the Tribunal is set out in s 348:

"... if an application is properly made under s 347 for review of an MRT-reviewable decision, the Tribunal must review the decision."
31 The Principal Member's additional powers and responsibilities relate only to the administrative aspects of the Tribunal's functioning: s 397. Conformably with that role, s 353A provides:

"(1) The Principal Member may, in writing, give directions, not inconsistent with this Act or the regulations, as to:
(a) the operation of the Tribunal; and

(b) the conduct of reviews by the Tribunal.

(2) In particular, the directions may relate to the application of efficient processing practices to the conduct of reviews by the Tribunal.

(3) The Tribunal should, as far as practicable, comply with the directions. However, non-compliance by the Tribunal with any direction does not mean that the Tribunal's decision on a review is an invalid decision.

(4) If the Tribunal deals with a review of a decision in a way that complies with the directions, the Tribunal is not required to take any other action in dealing with the review."

32 As to the Tribunal's support staff, s 407(3) provides:

"The officers of the Tribunal have:
(a) such duties, powers and functions as are provided by this Act and the regulations; and

(b) such other duties and functions as the Principal Member directs."

33 Nothing in s 353A or s 407 suggests that any function expressly or implicitly conferred on the Tribunal itself could be assigned away to officers by the Principal Member, by way of purported directions made by him or her. In relation to a body making important decisions, it would take express and clear words to indicate such a legislative intention.

34 Plainly, when an application is made to the MRT for review of a decision, somebody must decide the threshold questions, arising under s 348 of the Act, whether the application is properly made pursuant to s 347 (which imposes, among other things, temporal conditions on such an application) and whether the application really concerns an "MRT-reviewable decision". Who is to decide such matters - the Tribunal or members or its staff? There is no express grant by the Act to anyone of power to decide those matters. But the duty and power of review are expressly (and respectively) imposed upon and granted to the Tribunal, and it is plainly necessary for the performance of that duty and the exercise of that power of review that those matters also be decided. The answer is, in my opinion, supplied by the principle in Fenton v Hampton (1858) 11 Moo 347 at 360; applied and approved in Egan v Willis (1998) 195 CLR 424 at 447. McHugh J (at 468) explained the principle in the following way:

"As the seminal case of Kielley (1842) 13 ER 225 makes clear, the source of the implication upon which the respondents rely is the maxim: Quando lex aliquid alicui concedit, concedere videtur id, sine quo res ipsa esse non potest. The meaning of this maxim was explained by Fleming CJ in Fenton in a passage which O'Connor J has said in this Court sets out its `full and true import'. In the Supreme Court, Fleming CJ said that the true import of the maxim was:
`Whenever anything is authorized, and especially if, as a matter of duty, required to be done by law, and it is found impossible to do that thing unless something else not authorised in express terms be also done, then that something else will be supplied by necessary intendment.' "

35 As this case exemplifies, the threshold questions may involve difficult or complex questions of fact or law. It would frustrate the evident general intentions of the legislature that rejected visa applicants should have their grievances dealt with at a senior administrative level, and that public confidence in the immigration approvals process should be thereby maintained, were such vital threshold questions to be decided at a less senior level. Thus it is not only necessary that such questions be decided but necessary also that Tribunal Members themselves should decide them.

36 Once it is clear that it is the Tribunal itself that has that power, plainly it would be beyond the Principal Member's power to delegate it, absent clear and express statutory authorisation.

37 It follows that the MRT did not, in law, consider as it should have done, as a necessary incident of the review process, whether the application was properly made to it. Such a conclusion accords with approaches to analogous questions taken in this court: see Semunigus v Minister for Immigration & Multicultural Affairs [2000] FCA 240; Akand v Minister for Immigration & Multicultural Affairs [2000] FCA 626; Inderjit Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 73.

38 Normally, (subject to s 474) the consequence would be an order requiring the MRT to exercise its presently relevant functions under the Act, namely to determine whether the appellant's application was properly made pursuant to s 347.

39 I assume that nothing in s 474 would save the day for the respondent. There is, manifestly and literally, no decision of the Tribunal. The decision would appear to be not one "in fact given by the body concerned" within the contemplation of R v Hickman; Ex parte Clinton (1945) 70 CLR 598 at 615. As will be seen, however, it is not necessary to decide this matter.

40 It will be recalled that Hely J concluded his reasons with the following:

"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."
41 Understandably, the appellant did not submit that, if his Honour's finding of fact were vindicated, it would not be futile to require the Tribunal to perform its statutory function. As I agree with his Honour's finding, I consider that such course would be futile. In the Court's discretion, we should therefore withhold any relief that might otherwise be appropriate.

Disposition

42 For these reasons the appeal must be dismissed with costs.

I certify that the preceding forty two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick




Associate:

Dated: 4 October 2002

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N283 of 2002




BETWEEN:
JEONG MIN LEE

APPLICANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT




JUDGE:
MADGWICK, MERKEL AND CONTI JJ


DATE:
4 OCTOBER 2002


PLACE:
SYDNEY





REASONS FOR JUDGMENT
MERKEL J:

43 I have read the reasons of Madgwick J in draft. I agree with the orders proposed by his Honour and with his Honour's reasons for making those orders. Because it is unnecessary to decide the issues arising in relation to the operation of ss 58, 69 and 135 of the Evidence Act 1995 (Cth) I would prefer to leave those issues for decision on another occasion.

44 I would, however, emphasise the importance of members constituting tribunals such as the Refugee Review Tribunal and the Migration Review Tribunal personally discharging their review functions under the Migration Act 1958 (Cth), rather than impermissibly delegating the discharge of some of those functions to tribunal staff. As was explained by Madgwick J that kind of problem has arisen on prior occasions. It is regrettable that it has arisen again in the present case.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.




Associate:

Dated: 4 October 2002

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N283 of 2002




BETWEEN:
JEONG MIN LEE

APPLICANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT




JUDGE:
MADGWICK, MERKEL AND CONTI JJ


DATE:
4 OCTOBER 2002


PLACE:
SYDNEY





REASONS FOR JUDGMENT
CONTI J:

45 I have read the reasons for judgment of Madgwick J. I agree with the orders proposed by his Honour and the reasons in support of the making of those orders. In relation to the Evidence Act issues addressed by Madgwick J at [23] to [27] of his reasons for judgment, it is I think unnecessary in the context of the present appeal to resolve the same, having regard to the unanimous finding of the Court below and on appeal that the Minister's department did in fact cause notification of its refusal of the visa application to be communicated in conformity with the requirements of regulation 5.03 of the Migration Regulations.

46 In the reasons for judgment of Madgwick and Merkel JJ, there is discussion of the question whether the MRT should have made the controversial decision the subject of the appeal. The primary judge stopped short of expressing reasons on that question, in the light of his earlier finding at [23] of his reasons below that:

"...t 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".
47 Thereafter, at [24], the primary judge made the following observation as to whether there was any need to determine the question as to the means by which the decision was made and as to the relevant decision maker, having regard to his preceding finding that:

"n 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".

I would agree with his Honour's approach in the circumstances of this case, and that it is unnecessary in the context here prevailing to determine the question whether the MRT itself was obliged in law to exercise its review function in relation to the applicant's request for review, which was, by admission of the appellant, made out of time. Such an inquiry would require close examination of the operation of ss 347 and 348 of the Migration Act, which may be thought to compel the MRT itself to make decisions, in circumstances where an application has been `properly made', a requirement of which of course is that a review application is filed within the relevant statutory time period, in the present case being 21 days after notification of the decision to refuse to grant the student visa (s 347(1)(b)(i); reg 4.10(1)(a)).

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti




Associate:

Dated: 4 October 2002

Counsel for the Applicant:
Mr T Reilly






Solicitor for the Applicant:
Christopher Levingston & Associates






Counsel for the Respondent:
Mr J Smith






Solicitor for the Respondent:
Clayton Utz






Date of Hearing:
5 August 2002






Date of Judgment:
4 October 2002


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