Bank of Western Australia Ltd v Commissioner of Taxation

REASONS FOR JUDGMENT Some General Observations In a recent decision concerning the time limits imposed by the Migration Act 1958 (Cth) (the "Migration Act"), Merkel J observed that a case occasionally arises which makes the word "Kafkaesque" appear to be a description of fact rather than fiction: Chun Wang v Minister for Immigration and Multicultural Affairs (Fed Ct/Merkel J, 13 February 1997, unreported), at 2. One of the features of Chun Wang that prompted Merkel J's observation was the possibility (which his Honour held did not arise in the circumstances of the particular case) that a person's right to review a decision affecting his life and well-being could expire before the person became aware of the decision itself. The present case raises just this issue. If the argument of the respondent ("the Minister") is correct, it is likely that some persons whose applications for visas are rejected by the Minister will lose their right to have the decision reviewed by a tribunal because, through no fault of their own, the time for filing an application for review expires before they learn of the decision itself. The applicant himself is not in this position, but it is a necessary consequence of the Minister's argument that the Migration Act and the Migration Regulations are capable of having this effect. Considerations of this kind often lead the courts to depart from the literal meaning of the words used in a statute. Merkel J (at 16) cites the well-known passage from the judgment of Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, at 320-321: "when the judge labels the operation of the statute as 'absurd', 'extraordinary', 'capricious', 'irrational' or 'obscure' he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intend as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions. Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended." A feature of migration law is that Parliament not infrequently enacts legislation which is clearly capable of operating in a harsh way. For example, s 478(1)(b) of the Migration Act provides that an application to the Federal Court for review of a "judicially-reviewable decision" must be lodged within twenty-eight days of the applicant being notified of the decision. Section 478(2) provides that the Federal Court must not make an order allowing the applicant to lodge the application outside the twenty-eight day period. Leaving to one side the question of when a notification takes place, s 478(1)(b) imposes a mandatory time limit (see Chun Wang, at 7) of only twenty-eight days, that is incapable of being extended no matter what the reason for failure to comply and no matter whether the delay is one day or one year. The fact that a person has been prevented by serious illness, or some other cause beyond his or her control, from meeting the short time limit prescribed by s 478(1)(b) will not permit an extension. The drafting of s 478 doubtless reflects a view that the possibility of harsh results in a particular case is the price that must be paid to achieve what is seen as the requisite expedition and certainty in the review process: cf Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR 322 (Fed Ct/FC), at 345-347, per Sackville J. The real difficulty in this area is to determine how far it is appropriate for courts to go in attempting to avoid apparently harsh or inconvenient consequences, brought about or capable of being brought about by the statutory language. As the passage from Cooper Brookes indicates, ultimately any departure from the ordinary meaning and grammatical sense of the statutory language must be consistent with what Mason and Wilson JJ describe as the "legislative intent". The divergent opinions expressed by single Judges of this Court as to the operation of s 476(2) of the Migration Act (which limits the grounds on which the Court may review judicially-reviewable decisions), prior to the recent decision of the Full Court in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621 (Davies and Burchett JJ, Whitlam J dissenting), demonstrate that different views can reasonably be taken as to the legislative intent underlying apparently restrictive provisions. The key element in the present case is that three Judges of the Court have addressed the very question I am asked to decide. Each has decided adversely to the applicant's contentions. Those cases are Dawai v Minister for Immigration and Multicultural Affairs (Fed Ct/Moore J, 3 February 1997, unreported); Santos v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 229 (Fed Ct/Tamberlin J); and Tabet v Minister for Immigration and Multicultural Affairs (Fed Ct/Mansfield J, 23 June 1997, unreported). The well-established practice of the Court is that a single Judge follows earlier decisions of other single Judges unless he or she thinks they are clearly wrong: see Bank of Western Australia Ltd v Commissioner of Taxation (1994) 55 FCR 233 (Fed Ct/Lindgren J), at 255, and authorities cited there. For reasons I shall explain, I do not think that the three decisions to which I have referred are clearly wrong and I therefore follow them. The Proceedings The applicant is a citizen of Nepal. On 2 November 1995, he applied for a protection visa. On 17 February 1997, the application was refused by a delegate of the Minister, the delegate not being satisfied that the applicant was a person to whom Australia had protection obligations under the Convention Relating to the Status of Refugees. The applicant applied to the Refugee Review Tribunal ("RRT") for review of the delegate's decision. The application was lodged on 27 March 1997. On 27 May 1997, the RRT decided that it did not have jurisdiction to review the decision refusing to grant the applicant a protection visa, because the application for review was not received within the period provided by s 412(1)(b) of the Migration Act, namely, twenty-eight days from the date of "deemed notification" of the delegate's decision. The RRT considered that the deemed date was 24 February 1997, being seven days after the date of the letter sent by the delegate to the applicant, advising the latter of the decision. The present proceedings were commenced by an application filed on 24 June 1997. The applicant sought review of what was described as "the decision of[the Minister] to refuse...a protection visa. The decision was made on 27 May 1997." It is clear that the application in this form misdescribes the decision to be reviewed. This Court has jurisdiction to review "judicially-reviewable decisions", including decision of the RRT: Migration Act, ss 475(1)(b), 476(1), 486. The Court does not have jurisdiction to review "an RRT-reviewable decision", including a decision by the Minister to refuse to grant a protection visa: Migration Act, ss 411(1)(c), 475(2)(d). The parties approached the matter on the basis that the decision the subject of the application to review is the decision of the RRT, given on 27 May 1997. Accordingly, I directed the applicant to file an amended application recording correctly the decision to be reviewed. The amended application was filed on 10 October 1997. The Facts The principal facts were found by the RRT and were not in dispute. The relevant events were as follows: (i) On 2 November 1995, the applicant applied for a protection visa. It was common ground that he stated to the Department that his address was 6/3 Council Street, Marrickville 2204. (ii) On 17 February 1997 the Minister's delegate refused to grant a protection visa. (iii) The applicant was advised of this decision by a letter dated 17 February 1997, which included all of the information which the legislation required. The letter was sent by registered mail on the same date, 17 February 1997, to the applicant's correct address, at 6/3 Council Street, Marrickville 2204. (iv) The applicant claimed before the RRT that he did not receive the first of two cards from Australia Post advising him that a registered letter (containing the delegate's decision) was available for collection. The RRT made no specific finding on this claim. In any event, there was no dispute that the applicant actually collected the letter from the post office on 5 March 1997. (v) The application for review was received by the RRT on 27 March 1997. (vi) On 27 May 1997, the RRT decided that it lacked jurisdiction to hear the application for review of the delegate's decision. (vii) On 24 June 1997, the present proceedings were commenced. The Legislation The class of visas known as protection visas is provided for by s 36(1) of the Migration Act. A non-citizen who wants a visa must apply for a visa of a particular class, in accordance with requirements specified in the regulations: ss 45, 46. The Minister is to consider a valid application for a visa: s 47(1). After considering such an application, the Minister is to grant or refuse the application: s 65(1). A visa applicant must communicate with the Minister in the prescribed way: s 52(1). Communication by the Minister with the applicant is addressed in s 53. Insofar as relevant, s 53 provides as follows: "53(1)A visa applicant is to tell the Minister the address at which the applicant intends to live while the application is being dealt with. (2) If the applicant proposes to change the address at which he intends to live for at least 14 days, the applicant must tell the Minister the address and the period of proposed residence. (3) If the Minister sends or leaves a notification to the applicant at the address for the applicant given under subsection (1) and (2), the notification is taken to have been received by the applicant even if it was not received." Section 53(3) is of some importance to the present case. Section 66(1) of the Migration Act provides as follows: "(1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way." Section 66(2) sets out a number of matters that must be included in the notification, including (in the case of protection visa decisions) the time in which an application for review may be made. Regulation 2.16(1) of the Migration Regulations provides as follows: "For the purposes of subsection 66(1) of the Act...the Minister is to notify an applicant of a decision to grant or refuse a visa: ... (c) by sending a notice of the decision to, or leaving a notice of the decision at, the last address given to the Minister by the applicant under section 53 of the Act...". A decision to refuse a protection visa is an "RRT-reviewable decision": s 411(1)(c). Section 412(1) provides as follows: "An application for review of an RRT-reviewable decision must: (a) be made in the approved form; and (b) be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and (c) be accompanied by the prescribed fee (if any)." Where a valid application is made under s 412 for review of an RRT-reviewable decision, the RRT must review the decision: s 414(1). Regulation 4.31 of the Migration Regulations prescribes the period referred to in s 412(1)(b) of the Migration Act. Regulation 4.31 provides as follows: "(1) For the purposes of paragraph 412(1)(b) of the Act, each period stated in subregulation (2) is prescribed as the period within which an application for review of an RRT-reviewable decision to which the period applies must be given to the Tribunal. (2) A period mentioned in subregulation (1) commences on the day on which the applicant is notified of the decision to which the application relates, and ends at the end of: ... (b) in any other case - 28 days. (3) Subject to this regulation, an application must be lodged at a registry of the Tribunal: (a) by posting the application to that registry; or (b) by leaving it at that registry in a box designated for the lodgment of such applications; or (c) by leaving it with a person employed at that registry and authorised to receive such documents; or (d) by means of electronic facsimile transmission to that registry. (4) An application posted in accordance with paragraph (3)(a) or transmitted in accordance with paragraph (3)(d) is not to be taken to have been lodged until it is received at a registry of the Tribunal." Section 430 of the Migration Act specifies the requirements that the RRT must follow when it makes a decision on a review. The RRT must prepare a written statement that sets out its decision, the reasons for the decision and findings or any material questions of fact: s 430(1). Under s 430(2), the RRT "must give the applicant...a copy of the statement...within 14 days after the decision concerned is made". Regulation 5.03 deals with the time of receipt of a document sent by a Minister or a tribunal. It was in the following form at the relevant time: "(1) For the purposes of these Regulations, and subject to specific provision elsewhere in these Regulations, a document that is sent by the Minister or a Tribunal is taken to be received: (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) ... (2) Subregulation (1) does not apply to a document unless it is sent within 7 days after the date of the document." It should be noted that reg 5.03 was amended as from 1 July 1997 so that the opening words now read "For the purposes of the Act and these Regulations, and subject to the Act and specific provision elsewhere in these Regulations...". Nothing turns on the amendments for the purposes of this case. The RRT Decision The RRT held that the effect of s 412(1)(b) of the Migration Act and Migration Regulations reg 4.31 is that an application for review of an RRT-reviewable decision must be lodged with the RRT within twenty-eight days from the date the applicant "is notified" of the delegate's decision. The effect of reg 5.03 is that the applicant is taken to have received the letter of notification seven days after its date, that is, on 24 February 1997. It followed that the applicant had lodged his application with the RRT outside the mandatory twenty-eight period commencing on 24 February 1997 and, accordingly, the RRT lacked jurisdiction to deal with the application. The Applicant's Submissions Mr Diab, who appeared for the applicant, submitted that the expression "notification of the decision" in s 412(1)(b) of the Migration Act should be construed to mean notification in the sense of "actually communicated to the person adversely affected by it". He pointed out that this is the view that has been taken of the requirement in s 478(1)(b), which requires an application to the Court for review of a judicially-reviewable decision to be "lodged within 28 days of the applicant being notified of the decision": Nguyen v Minister for Immigration and Ethnic Affairs (1996) 68 FCR 437 (Fed Ct/Moore J); Kamkar v Minister for Immigration and Multicultural Affairs (Fed Ct/North J, 9 December 1996, unreported); Chun Wang v Minister, supra. Mr Diab submitted that a uniform construction of the same or similar language should be adopted, particularly where to take a different view could lead to harsh and even absurd results. Mr Diab submitted that reg 5.03(1) did not require the RRT to conclude that the Minister's decision was deemed to have been notified seven days after the decision was posted. The regulation could not affect the meaning of s 412(1)(b) itself. Moreover, reg 5.03(1), prior to its amendment from July 1997, commenced with the words "For the purposes of these Regulations". The twenty-eight day period after the notification of the decision was prescribed by the Migration Act itself and not by the Regulations, including reg 4.31. Reasoning It is correct to say, as Mr Diab submitted, that a series of single Judge decisions has established that the period specified in s 478(1)(b) of the Migration Act commences to run from the date of actual notification to the applicant of the decision and not on any deemed date of notification under reg 5.03. So much was held by North J in Kamkar and Merkel J in Chun Wang. Notwithstanding Merkel J's statement in Chun Wang, at 6, a contrary view was not expressed by Moore J in Nguyen, nor by me in Vinod v Minister for Immigration and Multicultural Affairs (Fed Ct/Sackville J, 14 August 1996, unreported). Indeed, Moore J in Nguyen, whose decision I followed in Vinod, specifically held (at 442) that reg 5.03 was not intended to apply to the notification required by s 478(1)(b) of the Migration Act. However, the three cases to which I have already referred, namely Santos, Dawai and Tabet, have all reached a different conclusion in relation to s 412(1)(b) of the Migration Act, namely, that reg 5.03 is intended to and does apply to the notification required by s 412(1)(b). It is convenient to start with Santos, which was a case on all fours with the present. The Minister's delegate refused an application for a protection visa on 21 December 1995. Notification of the decision was sent by certified mail on 27 December 1995 to the address specified by the applicant, but the letter was returned to the Department. The applicant claimed that she first became aware of the decision on 30 August 1996. She lodged her application to the RRT shortly thereafter. Tamberlin J held that the RRT had correctly decided that the application had been lodged out of time. His Honour's reasoning (at 232) places considerable emphasis on s 53(3) of the Migration Act, which (as has been seen) applies only where the Minister (not the RRT) "sends...a notification to the applicant at the address for the applicant": "The notification of the decision is clearly a notification to the applicant within s 53. The Minister, by his delegate, has sent a notification to the applicant at the prescribed address. In these circumstances, even if an applicant can establish that notification was never in fact received, s 53(3) provides that it must be taken to have been received by the applicant, even if in fact it was not received. In my view, s 53 is designed to prevent disputes as to non-receipt of notifications. Once the condition precedent of sending the notice to the specified address is satisfied then the notification is taken to have been received. The subsection is not expressed to be subject to contrary proof. It is conclusive in the interest of certainty as to notifications and expiry dates for review applications. In my view, there is sufficient evidence to establish sending and it must follow that the notification must be taken to have been received. The fact that the applicant was not actually aware of the notification until nine months later is not relevant. The expression 'is taken to have been received' is a variant on the expression 'is deemed to have been received'. 'Deeming' is a well known device used in legislation to create a statutory fiction which in some cases, but not all, may be contrary to the fact.... An additional submission is advanced that reg 5.03 cannot operate until there has been proper delivery of a notification to the applicant's address and an effective 'communication' by the Minister to the applicant. The purposes of the regulation, it is said, is 'communication' with the applicant. Again, s 53 in terms provides an answer. It specifically contemplates that a notification is effective even where it was in fact not received. Accordingly, actual communication is clearly not essential to notification for the purposes of s 66. The statutory notification process is that s 66 requires notification. Regulation 2.16 enables this to be done by sending notice to the specified address. Where this is done, reg 5.03 deems the document to have been received seven days after the date of the notice. Accordingly, the notification of the decision in the present case, is deemed to have taken place on 28 December 1995 and therefore the RRT did not have jurisdiction to review the decision of the ministerial delegate." Dawai, which was decided before Santos, was also a case on all fours with the present, except that the applicant's position was even more difficult (not to say, Kafkaesque) than that of the applicant to the present case. On the facts accepted by the RRT, the notification of the Minister's refusal was sent to the applicant's address by certified mail but was simply never delivered by Australia Post. Nonetheless, Moore J held that reg 5.03 applied so as to treat the letter as having been received seven days after its date, and that notification of the decision was deemed to have taken place for the purposes of s 412(1)(b) of the Migration Act at the expiration of the same seven day period. His Honour considered that reg 2.16(c) provided a method of notification (the sending of a notice to the address given under s 53(1)) upon which s 53(3) operated, so as to impute receipt whether or not the document was in fact received. Regulation 5.03(1) operated on the sending of a notification in the manner prescribed by reg 2.16(1)(c), since the prescription was effected by the Migration Regulations as distinct from the Migration Act itself. A question arose as to whether reg 5.03(1) had the effect of deeming the document to be received at the address to which it was sent, or of deeming it to be received by the applicant at that address. Moore J held (at 8) that the effect of s 53(3) was to deem receipt to be receipt by the applicant at the address. His Honour concluded (at 9) as follows: "In my opinion, the combined effect of s 55(3) [sic], reg 2.16 and reg 5.03 is that compliance with reg 2.16(1)(c) results in deemed notification of the decision seven days after the date of the document notifying the applicant of the decision. It is that time that provides the reference point for the commencement of the limitation period provided for in s 412(1)(b) and prescribed by regulation 4.31." Moore J distinguished the decision of North J in Kamkar, on the ground that the language of s 412 and s 478 of the Migration Act is different and, further, that s 412 operates in the context provided by s 66(1) and reg 2.16(c). In Tabet, Mansfield J followed the reasoning of Moore J in Dawai and of Tamberlin J in Santos. Mansfield J recognised that the approach taken in those cases could lead to hardship. However, he commented (at 19) that "although it would be appropriate to strain to adopt an interpretation of the relevant provisions which avoids the sort of hardship which the present application amply demonstrates, I do not think there is room for doubt." His Honour (at 20-21) specifically considered whether there was anything in the reasoning of Moore J in Nguyen and of North J in Kamkar which impinged upon the conclusion he had reached: "In both cases, the application was to the Court to review a decision of the RRT, made under s 476 of the Act. Section 478(1) of the Act requires that the application be lodged within twenty eight days of the applicant being notified of the decision of the RRT. The obligation on the RRT under s 430(2) of the Act was to 'give' the applicant a copy of its decision and reasons. Regulation 4.40(1) of the regulations was to the effect that a notice 'given' by the RRT is 'taken to be duly given' by posting it to the last address for service provided by the applicant. It does not specify the time such notice is given, as distinct from the manner of its giving. In each case, that procedure was followed but the notice did not come to the actual knowledge of the applicant until considerably later, although the letter reached its destination routinely. In each it was held that the twenty-eight day period specified in s 478(1) of the Act commenced only when the applicant had actual knowledge of the RRT decision and its reasons. However, there are significant points of distinction between those two cases and the issue now under consideration. Regulation 5.03 did not, on its face, apply because the time limitation was provided in the Act and not the regulations. There is no correspondence of language between s 430(2) and s 478(1); one uses the term 'given' and the other the term 'notified'. Indeed, both Moore J and North J focussed on that point of distinction, remarking upon the consistency of expression in s 66(1) and reg 2.16 relevant to the present matter and Moore J (at 9) explicitly indicated that in a case such as the present he would reach a different view. As appears above, he did so in Dawai. Although the routes by which each reached the conclusion were somewhat different, the reasoning does not cast doubt on the conclusion which I have reached." In my opinion, the reasoning in the three cases to which I have referred, cannot be characterised as clearly wrong. It is true that the contentions put forward by Mr Diab are arguable and receive support from dicta of North J in Kamkar. They also have the attraction of avoiding what can plainly be harsh and even absurd results. Canons of construction lean against interpreting legislation in this way. Nonetheless, however desirable it might be to adopt a uniform construction of s 478(1)(b) and s 412(1)(b) of the Migration Act, there is considerable force in the proposition that s 412(1)(b) operates in a context different from that in which s 478(1)(b) operates and must be construed accordingly. In particular, s 53(3) of the Migration Act clearly expresses an intention that a notification sent by the Minister is taken to have been received by the applicant even though it was never received. A provision to this effect necessarily contemplates that injustice may be caused to an applicant. No such provision applies to a notification by the RRT of the written statement, a copy of which must be given to the applicant pursuant s 430(2) of the Migration Act. Section 66(1) contemplates that the mode of notification of the Minister's decision is to be that which is prescribed (and has now been prescribed in reg 2.16). Again, this contrasts with the terms of s 430 (and see s 368, in relation to the Immigration Review Tribunal). These circumstances provide scope for reg 5.03(1) to operate (in its unamended form) in relation to the mode of notification prescribed by reg 2.16 even though it does not operate in relation to the notification required by ss 430 and 478(1)(b). In my view, the appropriate course in these circumstances, is to follow the three decisions to which I have referred. If a different approach is to be taken, it should be in consequence of a decision of the Full Court. In this case, there was no dispute that the letter notifying the applicant of the Minister's decision was forwarded to the address given by the applicant pursuant to s 53(1). The combined effect of s 53(3), reg 2.16(c) and reg 5.03(1), according to the authorities to which I have referred, is that the decision of the Minister is deemed to have been notified to the applicant on 24 February 1997. It follows that the application to the RRT was lodged outside the period specified in s 412(1)(b) and that the RRT had no jurisdiction to entertain the application. What I have said so far deals with the principal submissions put by Mr Diab. I should, however, note a further contention on which he relied. He argued that, even if reg 5.03(1) applied, the phrase "is taken to be received" is not a deeming provision, but merely creates a presumption. Accordingly, it is open to an applicant to prove that he or she did not in fact receive the document. In the passage I have quoted from the judgment of Tamberlin J in Santos (at 232), his Honour describes the expression "is taken to have been received" as a "variant on the expression 'is deemed to have been received'". Accordingly, he held that the effect of the phrase is to create a "statutory fiction" that applies even if contrary to the fact. While the language of s 53(3) and reg 5.03(1) is not identical, the same key phrase is used in each provision. It would have been easy to state, had it been intended, that the deeming was to apply only if the contrary were not proved. Moreover, it is implicit in the reasoning of Moore J in Dawai and Mansfield J in Tabet that their Honours accepted that reg 5.03(1) is to be read as a deeming provision, rather than a presumption. Their conclusion is consistent with (although not necessarily compelled by) the Minister's explanatory memorandum concerning the operation of reg 5.03, set out in the judgment of Moore J in Nguyen, at 442-443. I therefore do not accept Mr Diab's alternative argument. Conclusion The application must be dismissed. This is not a case in which the applicant had no opportunity to comply with the time limits specified in the letter he received on 5 March 1997, since the twenty-eight period did not expire until 24 March 1997. In the circumstances, I do not think that there is any reason to depart from the usual rule that costs should follow the event. Thus the applicant should pay the Minister's costs. I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville