Zhang v MIAC & Anor [2008] HCATrans 79 (8 February 2008)

Last Updated: 26 February 2008

[2008] HCATrans 079

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B53 of 2007

B e t w e e n -

ZHE AN ZHANG

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 8 FEBRUARY 2008, AT 12.31 PM

Copyright in the High Court of Australia

MR L. BOCCABELLA: May it please the Court, I appear for the applicant. (instructed by AJ Torbey & Associates)

MR P.G. BICKFORD: May it please the Court, I appear for the respondents. (instructed by Clayton Utz)

KIRBY J: Yes, Mr Boccabella.

MR BOCCABELLA: Your Honours, one key issue in this case is obviously the purposive approach to statutory interpretation. According to the Full Federal Court, the purposive approach led to the applicant losing his merit review rights. The implementation of across-the-board merit review rights is probably one of the greatest or certainly a very significant reform of the last quarter of the 20th century and basically for the first time, almost across the board, obviously with some exceptions, people had a general right to apply for a merit review made by Commonwealth public servants by an independent tribunal. Not only did this raise the quality of decision-making because it corrected otherwise erroneous decisions but, more importantly, it improved the quality of life of a large number of people and possibly this is no more important than in the area of migration law.

KIRBY J: All right, you have softened us up now. Now you have to plunge into the awful experience of the regulations and the Act.

MR BOCCABELLA: Here is the point, your Honours, yes. The purposive approach, your Honour, should not be used to stymie these merit review rights and this ought to be a general principle of statutory interpretation.

KIRBY J: Is not the purpose of such particularity in the Act, section 49B(4), and of the regulations concerning addresses that, as you point out, there are thousands and thousands of people on these visas and the very object is by great specificity to avoid contests just of the kind that brings this matter now before the highest Court in the country.

MR BOCCABELLA: If I could take your Honours to page 33 of the record. My submission will be in fact the purposive approaches in fact ought to achieve the opposite effect to what was suggested by the Full Federal Court and that is, at about line 10 - - -

KIRBY J: It is common ground, is it not, that the email that was sent to your client had a wrong digit in it and that it did not arrive at your client?

MR BOCCABELLA: And they knew that it did not arrive. It bounced back and they did not get it.

KIRBY J: That is right, but that you had nominated a street address which was nominated in accordance with the Act, I think.

MR BOCCABELLA: No, it is not. I will come to that in a moment.

KIRBY J: You had nominated an address where your client was not then resident?

MR BOCCABELLA: I need to address that point because that is fairly crucial. In a particular form, the client was invited, I should say, to nominate whether he would like to be communicated by email. He said, “Yes, well, seeing you have invited me, I will do that”. Then there was another form where he was asked to nominate his residential address and using the exact words “an address for correspondence”.

KIRBY J: By the way, does the Minister have some residual rights to grant an indulgence in this case, having regard to the fact that the email bounced, do you know? Is there some sort of ultimate - - -

MR BOCCABELLA: In my view, the answer is in the reasoning of the case of H which is in my submissions. In other words, quite clearly, this was not a manufactured situation by the applicant. The Minister or the delegate nominated the email method as the first method of distribution. The obvious thing to do, in fact it is almost ridiculous that we are here, would have been to have said, “Look, we have made a mistake, here it is now, time runs from this moment”, and that is really our case.

KIRBY J: But sometimes emails bounce for other reasons than you have typed in the email address. It could bounce because the account is no longer open or it has been changed or - - -

MR BOCCABELLA: But would not it have been nice if they had checked that. All you had to do was to say, well, it bounced. Let us see if we made an error first, but regrettably sometimes that is not the attitude of the Department of Immigration. They sometimes feel, we are always right. The first thing would have been to have said, did we make a mistake? That is one good reason why an email bounces probably 99 per cent of the time and as a result my client is in a devastated position, which I will talk about.

KIRBY J: But is it not the Act that requires the provision of a so-called post box or a postal address?

MR BOCCABELLA: I will come to that. At page 33, your Honours, you will see at about line 15 there, we are now dealing with a specific provision. I submit that where the Full Federal Court was confused is that it seemed to merge the general provisions with a specific provision. Section 127 of the Act is very plain, and on page 33:

When the Minister decides to cancel a visa, he or she is to notify the visa holder of the decision in the prescribed way.

These are visa cancellations. These are not decisions to grant visas.

KIRBY J: Yes, but the critical words there are “in the prescribed way”. It is not at large. It is not a duty to bring it to the mind of the person because that is often very difficult. With thousands of people moving around it is “in the prescribed way”. So we have to look at what the prescription is.

MR BOCCABELLA: That is exactly right, and one would have to say, what is the purpose of that? The purpose of a visa cancellation decision is to get notice to the applicant in various forms of practical ways. So when we look at these practical ways, my submission is, one looks at it in the view of what is the purpose of the notice? The purpose of the notice is to tell the applicant. It then goes on, of course, to - - -

KIRBY J: That is one way of interpreting section 127(1). The other is, given the variety and movements of people, it is to lay down a prescribed way which will be strictly complied with so that there will be no arguments of this kind.

MR BOCCABELLA: Let us have a look at that then, on page 34, but can I just finish the point to say this. If the purpose is to give the visa holder notice of the decision, when we look at these prescribed ways, they should be looked at with a gloss towards fulfilling the purpose of getting it to the visa holder. In other words, if there is a way in which you can construe these prescribed ways in a way where the visa holder actually gets notice, then that ought to be a way that they should be interpreted and that is really the base of the argument.

In fact, if we go then to page 34 at about line 22 you will see the only possible method that could be relied upon the Minister is the one in italics “post box address known to the Minister”. Your Honour, in an interesting case relied upon by the respondents which I will not necessarily take you to but point out, in the case of Palgo which is item 7 in the respondents’ book, where your Honour - - -

KIRBY J: Do not take us back there, please. We know that case. We do not need to go back to that. Do not raise divisive matters.

MR BOCCABELLA: Your Honour specifically used the word that you have to use the language - - -

KIRBY J: Yes, but I was in dissent. So do not remind me of that, please.

MR BOCCABELLA: My learned friend relies upon it. The appropriate approach is to look at what those words mean in ordinary parlance. If I asked anybody in this room, I would submit, if I said to them, look, what is your post box address, people would say, “Well look, it is either box 25, Manuka”, or, “I do not have a post box address”. Your Honour, in normal language, what other interpretation could there possibly be to the words “post box address”. I mean, does anybody think - - -

KIRBY J: What about to the person’s last residential address?

MR BOCCABELLA: It is conceded by the Minister that it did not go there.

HAYNE J: And business address?

MR BOCCABELLA: There was no business address.

HAYNE J: There was no commercial activity, but there was an address nominated by the applicant, was there not, as address to which notices should be sent to him?

MR BOCCABELLA: Address for correspondence?

HAYNE J: Yes.

MR BOCCABELLA: If we take the point that these things have to be construed strictly, then we cannot twist these words or expand them to look at some other means to try and take away somebody’s merit review rights. I can assure your Honours – and my learned friend can correct me if I am wrong – the only mechanism by which the department claims to have properly served this person was a letter to the post box address, the last post box address known to the Minister. Now, I just say again, which person in this room would nominate their street address when asked that question? The answer is obviously, nobody.

KIRBY J: One view is that a post box is your letterbox.

MR BOCCABELLA: But in ordinary parlance. I mean, does anybody use that? I mean, literally, if you asked anybody - - -

KIRBY J: I suppose you can say that in the juxtaposition of residential address, business address, post box address, the post box address by juxtaposition is a post office box address.

MR BOCCABELLA: In my view, that is the only interpretation that can be made. Bearing in mind this is a visa cancellation, you only have seven days to appeal. In other cases, you have 21, and in some cases 70, so there is a tight timetable and there is a reason, therefore, to believe that the Minister would want to be very specific in giving the applicant notice, in other words, it is either where he lives or if he has a post office box, it can go there, because you can assume - - -

KIRBY J: Why is the address that was nominated by your client, which was that of his former landlady or - - -

MR BOCCABELLA: Home-stay mother.

KIRBY J: Why was not that his last residential address?

MR BOCCABELLA: His last residential address was where he lived at the time he filled in the form. In other words, he specified, “This is where my last residential address was”. So the home-stay mother was not the last residential address and it is not - - -

KIRBY J: That may be so, but the place he nominated was an address and, on the face of things, that is the last residential address.

MR BOCCABELLA: No, he has nominated the last residential address – and my learned friend will correct me if I am wrong – it is conceded by the Minister that the last residential address nominated was where he lived and the note was not sent to the last residential address. Your Honours can be totally satisfied of that. There is no suggestion by the Minister or the department at any stage that the - - -

KIRBY J: The only basis on which the Minister seeks to state that he has complied with section 127(1) of the Act is service on the person’s post box address?

MR BOCCABELLA: That is exactly the case and that is why we are here.

KIRBY J: Your contention is that in its context that is a post office box address?

MR BOCCABELLA: That is right, because these decisions only allow you to appeal within seven days. Now, if you have nominated your home-stay mother, a letter might come to you via the home-stay mother, in other words, Mr Brown care of Mrs Smith. Mrs Smith might get the letter and say, “This is not a letter for me. I will put it on top of the fridge. When I see Mr Brown again, I will give it to him”, and that is obviously what happened here, but it was after the seven days.

So that is why, in the cases of visa cancellations, it has to go to a specific target. It has got to be like exocet missile. It has got to land in the target nominated by the regulation 2.55, otherwise the visa applicant is devastated. It has to go to the post box and, therefore, there is no room to use a purposive approach here. You cannot say, look, let us look at the general regulations and see how they come into it. The general Act, really, has no application.

The Minister has specifically said, “I am going to nominate this means and this means only”, and, therefore, that is the only way it can be done, and it was not done, and therefore my client’s time has not - - -

KIRBY J: Does it come down to whether or not “last post box address” means the post box, that is to say, the box at a house for receiving posted articles or a post office box? Is that what it comes down to?

MR BOCCABELLA: Assuming you ignore my email point, which I have not finished - - -

KIRBY J: Is it not common ground that it was not served by email, so that that element of prescription was not complied with?

MR BOCCABELLA: My outline of submission says, no, because the delegate, once having started the process of sending the email, finished it later on.

KIRBY J: You cannot serve it by email if he types in the wrong email address.

MR BOCCABELLA: But he did send it to the correct email address later. When the error was pointed out, it did go to the applicant.

KIRBY J: That is right, and did that comply adequately with the obligations under the Act?

MR BOCCABELLA: It would have. There it is there.

KIRBY J: And the regulation?

MR BOCCABELLA: Yes, on page 34.

KIRBY J: So what is your complaint?

MR BOCCABELLA: They did not accept that. They say that - - -

HAYNE J: There had been earlier service by mail to the post box address. That is the point against you, is it not?

MR BOCCABELLA: Yes.

HAYNE J: So we never get to the email question. The email question, seems to me, to be a complete red herring. The question is whether there was service at the post box address.

MR BOCCABELLA: I submit, obviously, your Honours, quite strongly that that is not the case because to give a human face to all of these things – I mean, there is thousands of people affected by these things – there has to be a method of recovery in the event of an error. The method of recovery is fairly obvious, let us send it again to the correct address. I mean, what could be simpler and what could be a better common sense approach?

KIRBY J: If you nominate an address as your postal address and if that is the genus that is covered by the three addresses, residential and business or post box address, then what is your complaint?

MR BOCCABELLA: Obviously, assuming you have found against me on the post box point, and I think I have made my point fairly clear, the ordinary language is that it cannot be a letterbox. The Macquarie Dictionary only refers to “postbox” as a letterbox when the two words are together. I do not want to go into in detail, it is in my submissions, but there are many examples of where the words separated mean something totally different, capsize, cap size, blackmail - - -

KIRBY J: Yes, you have made that point in your written submissions.

MR BOCCABELLA: I have made all those points. They are very different and I just keep - - -

KIRBY J: This is a very small point of statutory construction on which the relevant judges have had their chance to look at it.

MR BOCCABELLA: And they were wrong.

KIRBY J: Why would we get into it?

MR BOCCABELLA: Because they were wrong.

KIRBY J: Justice McHugh, you will remember said that in every matter of statutory construction you can have two opinions.

MR BOCCABELLA: Except they used the purposive approach - - -

KIRBY J: And often more.

MR BOCCABELLA: At page 40 their Honours said this, paragraph 29, line 32:

While a possible interpretation of “post office box” is that suggested by the appellant, that interpretation does not, in our view, further the obvious purpose of the “service scheme” –

This is the error. It is not just a little statutory point. They have acknowledged that it is a possible interpretation, in other words, they have not said this is a ridiculous argument. In fact, at one stage their Honours said, look, it is unfortunate that it has come to this point. My special leave point is that where there is a possible other interpretation, in other words, if you have two interpretations available and they have said that it is, you choose the one which preserves merit review rights. That is what the purposive approach is. That is what it is about. Your Honours, in the matter I referred to in my submission, and I know your Honour was in the minority - - -

KIRBY J: Do not go back to Palgo, please.

MR BOCCABELLA: No, I will not go back to that.

KIRBY J: Though I cannot refrain from saying that Parliament amended the Act immediately to accord with what I thought had been the earlier purpose.

MR BOCCABELLA: Indeed. I am conscious I might be running out of time, but at page 56 of the book, and I do not need to go any further than this, but in WACB their Honours the Chief Justice and Justices McHugh, Gummow and Heydon, and your Honour was in the minority, acknowledged however that judicial review “is remedial in nature” and so is merit review a fortiori. I mean, judicial review, you have some chance to recover. Merit review is your last chance to put your case. It has to be remedial.

You cannot construe, in my submission, legislation in a way which takes away these rights. It is almost Kafkaesque. We give people these rights, we set up these complicated regimes, yes, there is a valid
interpretation to go the applicant’s way but we are going to reject that because of some purposive interpretation. My submission is, the only purpose of section 127 is to set up a regime to get the notice to the visa holder. There is no other purpose.

KIRBY J: Yes, but the Federal Court, which is the principal court for matters of this kind, has reached a different view and if that is not disturbed that remains the clear law and it puts emphasis upon the duty of applicants to make very clear where they can be quickly contacted.

MR BOCCABELLA: These are teenagers, your Honour. You cannot expect teenagers to – these are students.

KIRBY J: Yes, I think you are down into the mercy of the Court now, which is a waste of time.

MR BOCCABELLA: No, it is not. My argument has to be that if you are going to use a purposive approach - - -

KIRBY J: I think you have put your argument very clearly and you have done so in your written submissions and we understand it. Is there anything additional?

MR BOCCABELLA: I do submit that the email issue is not a red herring. I make that submission very strongly because, again, I use the word it is Kafkaesque. They invite you to nominate an email address, you nominate it, they send it to another address, they do not bother to check, did we send it to the right address when it bounces back. Later on, when the error is pointed out, they do send it but the Minister says that does not count. I mean, that cannot be the law, your Honour. It cannot be the law. Their Honours in the decision of H – the only extract I am going to rely upon is in my outline on page 58. If I could take you to that. What happened here was, just very briefly, a document came in - - -

KIRBY J: I think your time has really expired, and we know H.

MR BOCCABELLA: The fax went to the agent. When it came out of the fax they walked down and gave it to the applicant. The Federal Court said, well, there is two timetables that makes common sense. The timetable that suits granting merit review is the one that ought to apply. Unless I can assist your Honours any further, those are my submissions.

KIRBY J: Mr Bickford, is there a residual power in the Minister to grant indulgence given that there was this email mistake? I cannot but feel a certain sympathy for the applicant.

MR BICKFORD: Yes, I understand your Honour’s question. I am not aware of any residual power in this context. The statutory scheme is very strict and is in a number of respects in the Migration Act very strict and, unlike a lot of other Commonwealth legislation, does not give the Minister discretions that one might normally expect to be there.

KIRBY J: Surely there must. We are not in the land of the Meeds and the Persians. We are here in Australia. There must surely be some way.

MR BICKFORD: The notice of cancellation was sent to the address that the applicant had nominated. It is not contended that it was his residential or business address. That was not the finding of fact below, although the facts are clear and it may involve questions of law which were not agitated below.

KIRBY J: The only question is whether in the concatenation of the categories “post box” therefore does not mean your postal box at your residence but means a post office box?

MR BICKFORD: If it had meant post office box it would have said so. That is our simple submission that the word “office” would be there and it is not there. The language is sloppy. There is no question the language is sloppy.

KIRBY J: Yes, I do not think we need to hear any more. Anything in reply to that, Mr Boccabella?

MR BOCCABELLA: There is that residual power to send it again. I can tell your Honours, as one experienced in this area that happens all the time. They can send it again and that is what the email was all about, sending it again.

KIRBY J: I suppose there is also a residual power not to press on with objections but the objections are pressed on with here. I assume that the Minister knows about this case and that he has continued the attitude of his predecessor?

MR BOCCABELLA: I would not necessarily assume that, your Honour.

KIRBY J: Yes, very well, thank you.

The applicant has demonstrated that the delegate of the Minister caused an email notification of the Minister’s cancellation of his Student (Temporary) (Class TU) Subclass 571 Schools Sector Visa not to be received because one digit of the email address was incorrectly typed. He claims not to have received notice of the cancellation by email or otherwise and that this caused him to get out of time for his application for a review of the cancellation under the Migration Regulations.

The difficulty presented to the applicant is that the Migration Act 1958 (Cth), section 494B(4) and the Regulations specify service of documents at a postal address provided by the recipient to the Minister. The applicant nominated a postal address. That address turned out to be an address other than the applicant’s then residential address. However, it was the address nominated by the applicant and the notice of cancellation was properly sent to it.

Whilst one might have sympathy for the applicant, there are thousands of such visas in force in Australia. A very particular regime has been provided by law in an attempt to avoid just such factual disputes as has arisen in the present case.

The only basis upon which this Court could provide special leave to appeal would be if it were reasonably arguable that an error of jurisdiction or law was shown in the decision below. We are not convinced that this has been shown. Special leave must therefore be refused.

MR BICKFORD: I am instructed to ask for an order for costs, your Honour.

KIRBY J: Do you have anything to say why costs should not be visited upon your unfortunate client?

MR BOCCABELLA: It is hardly appropriate when the reason we are here is because of an error by the department. There is no question about that.

KIRBY J: Mr Boccabella, if it were just a matter of mercy and substantial merits I would not order costs; but you are in the High Court of Australia and you know the rules. Special leave is refused, the applicant must pay the Minister’s costs.

The Court will now adjourn to be reconstituted for the remaining application.

AT 12.57 PM THE MATTER WAS CONCLUDED