The recent judgment in Fanani v Minister for Immigration [2021] FCA 595 has reinforced the importance of ensuring the service of documents complies with legislative requirements and the approach of courts in pursuing statutory interpretation in line with the purpose of instruments.
Background
It is a requirement under the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth) that an application for a visa must either be posted to the Department of Immigration and Border Protection (as it then was) or ‘delivered by courier service’ to the same address.
In this case, the solicitors of the Appellant instructed an employee of the firm to attend the office of the Department in the capacity of a courier and deliver the visa application.
When the employee arrived, they were instructed to place the application in a dropbox, but insisted they were acting as a courier. The department officer made further queries as to whether the employee was a courier but eventually allowed for a security guard to take the application to the correct office. It was verbally confirmed at the time that this was the correct process.
Three days later, the Department determined that the application was not a valid application as it had not been lodged correctly.
The key issue in the proceedings was whether the application was “delivered by courier service”.
Interpreting the words of the Regulation
Thomas J reinforced the purposive approach to statutory interpretation in this case. The purposive approach requires consideration of the meaning of the text read in its context. The context is the general purpose and policy of the statute alongside aims of consistency and fairness. This can be determined using secondary material if necessary.
In this case, the Appellant argued the intention of the requirement was to ensure the Department receives original hard copies of visa applications – thus permitting delivery by other than formal courier service. In contrast, the Department argued the intention of the requirement was to provide an independent means of proving delivery – through the use of a third party.
Analysis
Thomas J defined a courier in this instance as “a person who physically provides a safe and urgent letter or parcel delivery between two places”.
Additionally, he held that the requirement for “delivery by courier service” did not require delivery by a commercial courier or private company”. He made the point that had the phrasing been “delivery by a courier service”, this conclusion would have been different; but the current wording simply indicated the nature of the delivery, not who was delivering it.
Accordingly, Thomas J concluded that the application was indeed delivered by courier service.
Practical Takeaways
Outside of migration law, there are various other areas of law that prescribe how documents are meant to be served and delivered in particular ways.
The Building and Construction Industry Security of Payment Act 2002 (Vic) requires documents to be delivered to a person personally, lodged during normal office hours, or by sending it by post.
In a similar manner, a bankruptcy notice must be served by personal delivery, post, courier, or fax.
It is important in all these circumstances to ensure you deliver or serve documents in absolute compliance with the requirements. There is often no flexibility in these requirements.
The most steadfast way of ensuring compliance is to utilize commercial courier companies, or utilizing specialized process serving documents where personal delivery must be achieved. In all circumstances, a record of delivery must be kept – whether through a delivery log, express post, or a signature on delivery.
At CIE Legal, we often give advice to clients as to the best way to deliver or serve documents and use a network of trusted companies to ensure compliance with the relevant requirements across Australia and internationally.
