Case: VOAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 397
Outcome: cited
Minister says that s 494C(4) would have operated to deem the first notification letter to have been received even if the respondent's notification of change of address had been received by the Department between 7 August 2007 (when the letter was sent) and 16 August 2007 (when it was deemed to have been received). In VOAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 397 at [22] French J said: I do not accept the submission that the process of sending remains notionally in effect until deemed receipt and is halted by the intervening notice of a new address. Neither the language nor the evident purpose of the statutory and regulatory scheme supports such a construction. Of course in the present case, on the Minister's submission, s 494C(4) had fully operated on the first notification letter before the respondent notified her change of address. In my view the Minister has a strong case that once the Federal Magistrate had rejected the technical attacks on the validity of the first notification letter, he should have concluded that the respondent had been notified of the delegate's decision on the ground that the defect in the second notification letter cannot affect the validity of a notification that had already been "taken" or "deemed" to have occurred prior to the second notification letter being sent. Discretionary considerations The respondent advanced three matters she said should lead to the refusal of an extension of time. The first was that an appeal is of academic interest only, and will not determine any question now at issue between the parties. The respondent has a review proceeding on foot in the Tribunal in respect of the delegate's decision. That review will determine whether she is entitled to the visa. It was submitted that if an extension of time were granted and the appeal upheld, that would not affect the conduct of the review or the validity of the Tribunal's decision on the review. The position would be the same if the appeal were to be dismissed. The contention that the respondent's application for review will determine her right to a visa is in my view much weaker than the Minister's strong case described at [26]. On that case, the third notification letter was incapable of having any effect because the first notification letter was effective. Accordingly the Tribunal would have no jurisdiction to entertain the application. Section 347(1) requires an application for review to be made in the approved form and be given to the Tribunal within the prescribed period. The prescribed period in reg 4(10)(1)(a) is 21 days after the notification of the decision. Notification took place on 16 August 2007. The current application was not made within the prescribed period, and accordingly is not competent. The Tribunal has no jurisdiction to entertain it. The Department's letter of 24 March 2009 cannot confer on the Tribunal jurisdiction it does not have. The respondent's discretionary consideration depends on the Minister's contention, just described, being erroneous. All I need say at this stage is that in view of the strength of the Minister's case, I do not regard this discretionary consideration, which is at odds with that strong case, to be sufficiently persuasive to cause me to refuse an extension of time. French J did not refer to s 33(1). However, in Burgess v Minister for Immigration and Multicultural Affairs [2000] FCA 926 ; (2000) 101 FCR 58 at 62 Katz J expressed the view that his Honour would have come to the same conclusion had he taken that provision into account.